The Enforcement Act of 1870 was written to protect the democratic system during the Reconstruction Era from white supremacist conspiracies designed to take away the right to vote or other civil rights from newly enfranchised former slaves. The Act has drawn some attention because it is being used in a current high-profile case. I won’t discuss the current case, but I do want to discuss the statute and how it came to be.
While the Ku Klux Klan started in 1866, the terrorist organization saw a dramatic increase in membership in 1868 as Black men were widely enfranchised for the first time in United States history. Ulysses S. Grant was running in 1868, and white supremacists saw the Black vote as his chance to take the presidency. Klan and other organized groups carried out widespread killings and assaults on Blacks throughout the South during the ten months prior to the election that year. Seeing the impact of violence on the political situation in the South, terrorist attacks were an everyday occurance in 1869 and 1870. The violence did not just suppress Black voting, it was also used to control Black labor, prevent Black families from moving into white neighborhoods, prevent interracial marriages, and hinder public education for African American children.
While the army tried to stop the violations of the rights of Blacks, cases that were referred to the local courts were often not prosecuted. In 1870, Congress began to pass a series of acts known as “The Enforcement Acts.” Attempts to pass these lasted from 1870 to 1874. One that passed in 1870 is now contained in 18 United States Code Section 241. As you can see from the penalty, acts covered by it were considered a serious violation of law:
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—
They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.
Ten years imprisonment, life imprisonment, or death! Now the death sentence can only be imposed when particularly serious physical harm occurs like murder, attempted murder, sexual abuse, etc., but the ten year sentence can be imposed for a host of non-physical crimes. In United States v. Mosley the lower court dismissed the claim, which involved county officials misreporting vote counts, because it did not rise to the level of violence Congress had been trying to address. The Supreme Court reversed saying that the 1870 Enforcement Act “did not confine itself to conspiracies contemplating violence.” Prosecutions have been successful for a variety of non-violent interferences with elections, typically altering returns, stuffing ballot boxes, etc.
In the 1876 case United States v. Cruikshank, the Supreme Court said that an Enforcement Act prosecution against those people carrying out the Colfax Massacre of Blacks could not stand. The court said that the Act was not designed to go after private individuals, it was only designed to go after state actors.
In 1870, the group that Congress wanted to protect were recently freed former slaves living in the South, however there is nothing in the language of statute that says that the victims of the conspiracy have to be Black or that the deprivation of civil rights has to be the result of racial discrimination.
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