Now ina lot of different kinds f litigation. Explaining circumstances. Looking at intent. So everything from , Environmental Concerns to medical issues, Tobacco Company suits. So, for me, i think they could almost be used anywhere to help put things into perspective for what is the Voting Rights, sort of law canon we think of, explaining the totality of circumstances of why a law is passed. Host you spent26 years with the Justice Department. When did you become being used as an Expert Witness . Peyton i firstgot involved as an Expert Witness in 1980 when the Supreme Court handed down a decision in acase known as city as mobile versusbolton where the court established that minority plaintiffs challenging a lawas racially discriminatory hadto demonstrate that it was either adopted or maintained for a racially discriminatory purpose, not nearly that it had a racially this crematory effect. Effect. Since the lawin question in the mobilecase was adopted in 1911, there were not anyparticipants around to use as witnesses, and theonly way to figure out the intent was to hire an historian to do research. I was teaching at the bursting of South Alabama site guided the research and used graduate students as research assistants. Other social scientists got involved in the case as expert as well. But i was the person who did thefocused research on the intent question. Host in that case and in others, have you typically been called to testify on the stand as well . Peyton oh, yes. That is where the testimony was presented. In the City Commission case i was on the stand for a day and a half as i recall. And so that was the first of 40 or50 cases in which i was serving as an expert in the 1980s, only 14of which actually went to trial and i testified in them. Host professor burton, when did you first start asa historical expertwitness and how much is this part of your work asa professor at closing . Vernon itvaries, because right now i am not involved in any Voting Rights case. Peytonbegan, as explained attorneys , realized quickly when the Supreme Courtbasically upheld that you had to explain that a lawwas designed or intended purposely to discriminate and it wasnot just the law might havea discriminatory effect. There was a case inedgefield, south carolin. I did my dissertation on edgefield. In 1980, i was contactedto work on the case and began a long series of involvement,primarily in votg rights cases, some discriminatin cases, just a few years ago, the theangola prison case where he had been in solitary confinement since 1972. Those are quitedifferent kinds of cases, though than what we had been doing, Voting Rights cases over the years for minority plaintiffs. Host lets start with Peyton Mccrary. Tell us a bitabout the process for preparing for a drop your how does it differ from your Academic Work that you have done the process for preparing fora trial. How does it differ . Peyton interestinglyit does not different as much as one might think from Academic Work. The courts have along followeda set of guidelines set by the Supreme Court in 1977 for how one investigates theintent question using circumstantial evidence. It happens that that is the way historians and political scientists have always analyzed political decisionmaking. Andso, what we are doing is essentially what we do inthe scholarly world, except that it is going to be presented in a particular venue where aparticular law isat issue, particular decision, and it is more limited in scope than the research we typically publish. That the court asksfor detail scholarly analysis of the intent underlying the adoption of the law. And so you have tobe in many , respects betterthan when you are publishing because thereis always a highpriced lawyer trying to show that your analysis iswrong, whos working for the other side in te case. Host professor burton, tell us about your process. Vernon very similar. and i want to add that after mobile v. Bodin, Voting Rights advocates went back to congress. Congress thought that Supreme Court was wrong in this. And they amended the Voting Rights act. So you no longer after , 1982 needed to show intent. You still could showintent, and attorney still want us to do it, but instead, with the amendment in 1982, that if a lawin affected discriminate i, then thatlaw could be declared unconstitutional. Most good lawyers like an action arrow in their quiver. So they continued touse people for intent or the other side of that is thatboth peyton and i were of a generation of scholars, we bothdid our graduate work at princeton, where there was a heavy social science to begin a client data to the. So one of the mostimportant , things that the course decided is to show racial block voting which involves statisticl techniques. So doing that as well. , but with the renewal ofthe Voting Rightsact n 1982 they alsolisted out factors they thought needed to be shown as part of the toward intent. And basically they called it the , totality of circumstances. That is what we have already done this historians. Our methodology is to explain the totality of the circumstance in which a law or certainthings happen. And weve basically, even though , the court came upwith these, it is what as historians we were trained how to do research. Host give us us an Historical Context or tell us why the Voting Rights act of 1965 was necessary . Peyton it was adopted because ofthe extreme levels of racial segregation in regard to the political process, that is specifically extreme levels of racial segregation discriminatory Voter Registration procedures that prevented africanamericans in the south from being registered voters. And therefore,kept them from being able to vote at all. And the courtshad largely been unsuccessful ineliminating that problem througha case by case litigation. As soon as thecourt struck down one procedure, the local jurisdiction or the state would change the procedure and they, the Justice Department would haveto sue all over again. So, the congress came up with the idea that it was necessary tostep into the process,and create a mechanism bywhich these discriminatory election procedures could be eliminated. Andthe court upheld its constitutionality in 1956in the case known as South Carolina v. Katzenbach. The Voting Rightsact gradually eliminated those restrictions on registration and voting sothat africanamericans in the south were able to vote. At something that came to approach parity with whites after choi years. Vernon i have often said somewhat injest, but i think it is true that choosethings changed the American South the Voting Rights act and airconditioning. Its ironic thatamericans understand better how airconditioning works then they understand how the laws that governour democracy work like the Voting Rights act. Host why do thinkthat is . Vernon a numberof reasons. One is,i think we put muchmore emphasis on science, math and how important that is,the stem discipline, when in a democracyi think it is critical that in factpeople are educated as citizens which is what we do as historians. What used to be knownas civics inhigh school that people do just do not understand particularly lawsthat have come about since 1955. Why they are necessary and how they are enacted. Host Peyton Mccrary mentioned this 1966 case, the spring court upheld the Voting Rights act. Was this the first challenge the Supreme Court upheld the Voting Rights act. How have the cases evolved over the years . Peyton South Carolina challenge it. It is relevant to what has been happening lately because the court did uphold the law. Law. They were saying they were being treated unfairly, particular in the i like to use the quotethat chief justice warned use that said history calledup South Carolina and the other states that have joined it. Both cases made of the primary sorts of cases that we testified in in the 1980s, and congress had in mind when it amended section ii ofthe Voting Rights the intentinate task. In recent years however, the , courts have also had cases involvingonce again restrictionson Voter Registration procedures and voting in person. Adopted where states photo id requirements, substantially cut early voting, and other restrictions on casting a ballot. We thought we had once dealt with nowcomes back as a whole new problem,the problem of the vote in island vote denilal. Host historically, these dilution cases, we saw an uptick in these efforts across the states. Back after the civil, the Voting Rights act was passed. Peyton after the Voting Rights actwas adopted and blacks began to vote in larger numbers, it occurred towhite folks in the south you need to have atlarge elections to keep them from electing anyone to office. In other cases the laws were quite old. I mentioned the appeal law at the mobilelaw requiring atlarge election from the city governing body. They were challenged in the 1980s. Host professor burton, you were going to chime in . Vernon i was the Expert Witness for the league ofwomen voters in South Carolina and in the texasphoto voter i. D. Recent cases. Andi thought that was where you were going. So i just was going to mention, but its interesting one of the things i did in both of those cases was to so just how similar toshow how similar those laws wereto over lderlaws and therationale that was given anytime there was a vote dilution law passed from the end of reconstruction p to the currentday, it was always, in fact, the same rationale which was voter fraud to show that this had acertain pattern over time. Host current day, what is the status of voting, voter i. D. Laws across the country . Peyton in texas and north carolina, they have been struck down by the courts as in violation of section iiof the Voting Rights act. And withcurrent construction ofthe Supreme Court with only eight members, the decision of the courts of appeal is we thinkpractically, for practicalpurposes, final. So both of those laws willnot go into effect asa result of successful litigation by the department of justice and minority plaintiffs,combining efforts against those laws adopted by therepublican majorities in texas and north carolina. There are other states where such laws are adopted and have been challenged in court is in wisconsin, where the pattern is still mixed in terms of how the courts are going to handle it. So, it dependson the state as to where the situation is with regard to those laws. Host professor burton, what is the most recent Supreme Court ruling or decision on the Voting Rights act . Vernon this is very important becausepeyton worked t the justicedepartment all those years. And probably the most effectivepart of the Voting Rights act wassection vwhich said that those jurisdictions that have been covered, most of those had been in the old confederacy, a fewothers outside and later, n fact, had tohave their any changes that affected voting in any way, had to have thoselaws precleared. That could be done by the Justice Department or by a federal washington, d. C. Threejudge panel and things. So, that wasan extraordinarily important in changing the southover time. Well, the formula had not been revised,as i believe75, was that . 1975. Although there was a huge amount , of testimony inthe renewal of the Voting Rights act, only in 2006, in support of it. And commerce was almost unanimous in support of it. But in fact, theSupreme Court , found that section iv, which was the formula,was no longer relevant and it is a very different. Court, in upholding in the 1966,the Voting Rights act and the roberts courtsaid that states should not be treated different. Whereas the warrencourt was concerned about the rights for people to vote. I think it is a major shift,thats going on there. Ruth bader ginger Burke Ginsburg did one of those great desist thathistorians will write about 200 years now using the analogy of, youre not getting rained on so youput your umbrella away. Host lastly, you both are just off your Panel Discussion on historians as Expert Witnesses. Quickly, a couple of brief takeaways from what you heard in questions from the participants. Panelists, of our from caltech had referred toan , argument made by some european historians who had written about Expert Witness workthat it would be a goodidea to establish a code of ethics for the history profession specifically thinking about the spirits in tobacco litigation. And that was enthusiastically received by the audience. But the pointi made, andwhich i think all ofus agree with is that historians testifying as Expert Witnesses and Voting Rights cases always followed a code of ethicsthat may nothave been, may not have been trueof experts testifying n tobacco litigation. That was the big take away from the morning session. Vernon the second take away i think was that you would not notice by looking at peyton and i that we are gettingup in age. It is something that takes a lot of time. We discussed, shouldnt some of ais work, which i see as public service, that we are speaking to to power, that we have knowledge as historians that other people do not have access to. I think it is really part of our professional ethics or obligation to bring that to light, to help judges understand circumstancesf and maybe there is a way that the profession could recognize. Votesdve had a lot more if i had done less of this. I think i did the right thing. You have to admit, it takes a lot of time. One of the things people suggested is publishing reports as a breakneck a recognition that this is professional work. Host we appreciate you taking your time with us on American History tv. Are watching American History tv. 48 hours of programming on American History tv every weekend on cspan3. Follow us on twitter for information on her schedule and to keep up with the latest history news. 150 years ago on march 30, 1867, the United States purchased alaska from the russian empire. After the attack on pearl harbor, the territory became strategic for the american war effort for its close proximity to japan. Up next on reel america directed and narrated by john houston, tells the story of the the documentary tells the story of the early stages of the Aleutian Islands campaign during world war ii and depicts the harsh weather and Living Conditions faced by u. S. Forces