Retired Massachusetts judge revisits early fight for black voting rights

Issue February 2011 By Peter Elikann

"How many bubbles in a bar of soap?" This was one of the test questions asked of African-Americans attempting to register to vote in the county seat of Hattiesburg, Miss., in the years leading up to the early 1960s.

They might have also been asked to write a short essay interpreting complicated, obscure sections of the state constitution, such as the section empowering the Legislature to charter corporations, or the section concerning the title and leasing of lands in the Choctaw purchase. When they were, inevitably, told that they failed, the Circuit Clerk Theron Lynd always insisted he didn't have to tell them which part of the application they got wrong and made up a baseless rule that they'd have to wait six months to try again.

Yet getting to the point where they could even take the test was an effort, since a black applicant might be relentlessly told, dozens of times over a period of months, to come back because the clerk was busy.

On the other hand, a white person merely had to give his name, address and signature and would be registered to vote within minutes without taking any test or filling out an application.

The result was that, although the voting age population of Forrest County, Miss., was one-third black, by 1962, 10,000 whites and 14 blacks were registered to vote. In fact, in the preceding three years, 2,400 white people had registered and not a single black had been permitted. The oddity was that, among the African-Americans who failed the test, were clergymen, war heroes, public school principals and teachers, some with masters' degrees from Ivy League schools.

"How could it be that blacks with college degrees were considered not competent to interpret the Constitution and yet there were whites who had not even graduated high school who were voting?" asked one of the teachers, Eloise Hopson.

In his impassioned book, Count Them One by One, retired Massachusetts District Court Judge Gordon A. Martin Jr. recounts this largely forgotten dark chapter in the American experiment and how he, a fledgling lawyer in 1962, traveled to the Deep South as part of the team bringing the Justice Department's first voting rights case to trial.

What makes Martin's book such a towering achievement is that he meticulously combines his encyclopedic knowledge of the legal history of the American civil rights struggle for the right to vote with personal tales of ordinary poor people with everything to lose who, through singular grace and courage, overturn a seemingly omnipotent goliath. Teachers and factory workers risked their jobs and physical safety.

It is an invaluable scholarly legal volume that reads as a page-turning adventure yarn.

Whites also showed their mettle. Huck Dunagin, a white shop steward at the local Hercules Powder Company, said that he himself was "no integrationist," but something about the denial of the right to vote for the black men under him rubbed him the wrong way. "If you want to register … I'll see that you don't lose your jobs," he told his black workers.

Martin, then 27, was not restricted to the confines of a courtroom. He was out in the field, traveling down isolated country dirt roads, tracking down and interviewing witnesses and getting his car tires slashed. Once, at a café on a Friday, he was perusing the menu for a nonmeat dish and the waitress deduced that he must be Catholic. He left quickly, regretting his possibly reckless act of drawing attention to his own minority status.

The book's depiction of the landmark trial of U.S. v. Theron Lynd is riveting, as is its depiction of the openly racist federal judge William Harold Cox, who was appointed to the bench as a favor to segregationist Sen. James Eastland, as he throws every obstacle in the way of the tenacious Justice Department lawyers who must prove a pattern of racial discrimination. The repugnant Cox won't even let them obtain discovery, such as a routine request for copies of the voting records, making it maddeningly difficult to prepare for trial.

Martin and his cohorts, including their leader, John Doar, the legendary attorney of later Watergate fame, race to an appeals court. The Fifth Circuit Court of Appeals sides with them in a decision that is blistering in its evisceration of Judge Cox's legally incomprehensible rulings.

Lynd refused to heed the court's orders and, as a result, was the first southern registrar convicted for civil contempt of court.

This precedent-setting case was the forerunner of all the other voting rights cases and was cited as a strong influence for the Voting Rights Act of 1965. Decades later, Gordon Martin retraces his path and visits many of the key players in this epic morality tale.

As the particular details of many of these significant, but lesser-known struggles of the American Civil Rights Movement recede in the public remembrance and are lost to memory and time, a minor masterpiece such as this, is not only a compelling work, but an important one. A group of simple long-forgotten people, comporting themselves with quiet, understated dignity and grace, selflessly reared up and triumphantly broke the back of an ugly behemoth of a system.

Peter Elikann is a CNN legal commentator, author, Boston-based attorney and chair of the Massachusetts Bar Association's General Practice, Solo and Small Firm Section Council.