The Anti-Klan Act of 1871

by Jack R. Johnson 07.2021

Graphic by Doug Dobey

One Friday, less than 30 days before the 2020 Presidential election, a caravan of vehicles displaying Trump campaign flags and signs swarmed a Biden campaign bus in Texas, threatening them with semi-automatics and trying to drive them off the road. Individuals in the caravan screamed death threats and at least one Biden staff car was clipped. Biden staffers called 911 but the police refused to escort the bus and were slow to respond. Eventually, the bus reach its Austin destination, more or less intact.

No one was ever prosecuted for the incident, although the perpetrators were easily identified. One of the drivers in the caravan, Eliazar Cisnernos, boasted on Facebook after the confrontation that he was responsible for bumping the campaign car out of the lane. “That was me slamming that f***er ... hell yea,” he crowed in a since-deleted message.

Trump even tweeted an edited video of the drivers surrounding the bus with the caption “I LOVE TEXAS!” Later, Trump tweeted that the drivers were “patriots” who “did nothing wrong.” 

That view is about to be challenged in court. 

Recently, two lawsuits were filed in relation to the incident — one against the Trump supporting drivers, dubbed the ‘Trump Train’; and another against law enforcement who “turned a blind eye.” The plaintiffs are using a relatively old law, written nearly 150 years ago called the Ku Klux Klan Act of 1871, or the Third Enforcement Act of 1871.

As you might suspect from the title, the law was originally intended to protect against political violence and voter intimidation, particularly of formerly enslaved people.  A series of these so called ‘enforcement’ laws gradually increased the power of the Federal government to prosecute efforts of voter suppression and intimidation at the special request of President Ulysses S. Grant.  

The laws became necessary because local and state governments of the ex-Confederacy refused to prosecute individuals who threatened or even killed Black voters.  As a consequence, throughout the early years of Reconstruction, thousands of incidents of voter intimidation and violence were documented but never prosecuted. Most often Blacks were the direct recipients of these efforts, but many white Republicans who supported Black civil rights were also threatened and sometimes killed. Of particular concern to President Grant were the activities of specific white supremacist organizations like the White League or the recently formed Ku Klux Klan. The Klan, populated largely by ex-Confederate soldiers, actively worked to overthrow the newly elected Republican government. 

At first, the Klan was relatively restrained in its actions. In the August 1867 state elections, they hoped to persuade Black voters that a return to their pre-war state of bondage was in their best interest. Nathan Forrest one of the original Klan members, and the first ‘grand wizard’ assisted in maintaining order. It was after these efforts failed that the Klan turned to violence. 

By the 1868 presidential election, the gloves came off. In an 1868 interview by Cincinnati newspaper, Nathan Forrest claimed that the Klan had 40,000 members in Tennessee and 550,000 total members throughout the Southern states. Across the South, the Klan and other terrorist groups instituted a ‘reign of terror’ using brutal tactics to intimidate Republican voters. In Arkansas, over 2,000 murders were committed in connection with the election. In Georgia, the number of threats and beatings was even higher. And in Louisiana, 1000 Blacks were killed as the election neared. In those three states, Democrats won decisive victories at the polls.

Ultimately, though, the Klan's violence backfired. They proved to many Northerners that the South had not learned its lesson in the recent war; harsher laws would have to be passed in order to stop the violence and protect Southern Blacks. And those laws were soon in coming. Grant, whose slogan was "Let us have peace" won the election, and Republicans gained a majority in Congress. 

Three successively stronger enforcement acts were passed to put an end to voter intimidation, culminating in the third act dubbed the Ku Klux Klan act which allowed Grant the power to use the military to stop “insurrection, domestic violence, unlawful combinations, or conspiracies” against civil rights if a state’s government failed to act. For a year only, the law allowed Grant to suspend habeas corpus if anti-civil rights conspirators organized a rebellion. 

As a response to the act, Klansmen in South Carolina were put on trial in front of juries made up of mainly Blacks.  Grant declared martial law in nine South Carolina counties and suspended habeas corpus, prompting an estimated 2,000 Klansmen to flee the state. Prosecution efforts led to jail sentences of a few hundred Klan members. Many others were only given a warning, but by 1872, the ‘original’ Klan as an organization had been officially broken. 

“By 1872, the federal government’s willingness to bring its legal and coercive authority to bear had broken the Klan’s back and produced a dramatic decline in violence throughout the South,” wrote historian Eric Foner. The Klan didn’t reemerge until two generations later, in 1915.

This same act (with some of its powers limited through subsequent court challenges), was used in 1964, when the United States Department of Justice charged eighteen individuals with conspiring to deprive Michael Schwerner, James Chaney, and Andrew Goodman of their civil rights by murder because Mississippi officials refused to prosecute their killers for murder, a state crime.

This past December, the NAACP sued former president Donald Trump and the Republican Party under the Ku Klux Klan Act, alleging that they conspired to interfere with the civil rights of Black voters in Michigan. The case is pending in federal court.

And recently, the act was cited again in a federal lawsuit aimed at those involved in the January 6 attack on the US Capitol. According to The Washington Post, “the lawsuit accuses former president Donald Trump, his lawyer, Rudolph W. Giuliani, and members of the Proud Boys and Oath Keepers of conspiring in violation of the Klan Act to prevent Congress from certifying Joe Biden’s victory in the 2020 election.”

If he were alive, would Grant be proud that a law he pushed through has proven so useful over all these years; or dismayed that the law is still needed?