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Written by Judge Milton Hirsch

Readers of Earl Warren’s memoirs are sometimes surprised to learn that the great Chief Justice did not consider Brown v. Topeka Board of Education(1) the most important opinion of his tenure. Significant as Brown was, Warren
considered Reynolds v. Sims(2) and Baker v. Carr(3) — commonly referred to as the “one man, one vote” cases — as the most important of all. His reasoning was simple: The right to vote is the gateway to all other legal rights.

Which brings us to Ocoee, Florida, on Election Day, November 2, 1920.

If you don’t live in Florida, and even if you do, you may never have heard of Ocoee. It’s a small town in Orange County, quite close to Disney World.

African Americans had been, for all intents and purposes, disenfranchised in Florida since at least the outset of the 20th century. In 1920, however, the Black community made concerted and organized efforts to get Blacks
to register and vote. On Election Day, Mose Norman and Julius Perry were among the leaders of those presenting themselves at the polls and demanding to exercise their franchise.

What followed is remembered to history — if it is remembered at all — as “the Ocoee Massacre.” Perhaps 30 or 35 Blacks were murdered by a mob, and all the Black homes, as well as churches and schoolhouses, were burned to the ground. Perry’s body was taken to Orlando, the nearest big city, hanged from a telephone pole, and left to rot as an example to others.

Norman was never seen or heard from again.

The surviving members of the Black community fled. No Black person lived in Ocoee until 1981.

No one was ever sued or prosecuted for the Ocoee Massacre. That would have required access to the court system, to the legal system, to the organs of government. But without the right to vote, that access is easily denied. The right to vote is — as Warren realized — the gateway to all other legal rights.

The infamous incarceration of approximately 120,000 Japanese Americans and Japanese resident aliens during World War II is well documented. See, e.g., Trump v. Hawaii(4), in which Chief Justice Roberts’ plurality decision states: “The dissent’s reference to Korematsu [v. United States, 323 U.S. 214 (1944)] … affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and — to be clear — ‘has no place in law under the Constitution'” (5)(Roberts, C.J.).

What is less well-known is that German Americans and Italian Americans were also incarcerated, albeit in much lower numbers. The Roosevelt government was profoundly concerned about a German American “fifth column” acting on behalf of the Nazis. On the afternoon of December 8, 1941, Attorney General Francis Biddle took a draft of a declaration authorizing the arrest and interning of such persons to the president for his signature. “I don’t care so much about the Italians,” Roosevelt is alleged to have told his attorney general. “They’re a lot of opera singers. But the Germans are different. They may be dangerous.”

Legend has it that there was another reason that America was reluctant to round up Italian Americans and Italian resident aliens. Prior to the attack on Pearl Harbor, perhaps the most newsworthy story of 1941 was Joe
DiMaggio’s 56-game hitting streak — a record that stands to this day and will almost certainly never be broken. “Joltin’ Joe” was likely America’s most popular athlete, as handsome and famous as a movie star. (He would later
marry Marilyn Monroe, briefly.) But his immigrant parents — a fisherman and a housewife — had never taken U.S. citizenship. A policy of widespread arrests of Italian resident aliens would have extended to Mom and
Pop DiMaggio — something for which no American politician wanted to be responsible.

(1) Brown v. Bd. of Educ., 347 U.S. 483, 74 S. Ct. 686 (1954).
(2) Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362 (1964).
(3) Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691 (1962).
(4) Trump v. Hawaii, 138 S. Ct. 2392 (2018).
(5) 323 U.S. at 248 (Jackson, J., dissenting)”).

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