Daniel McCool is Professor of Political Science at the University of Utah and author (with Susan Olson and Jennifer Robinson) of Native Vote: American Indians, the Voting Rights Act, and the Right to Vote.

The Most Fundamental Right

By Daniel McCool

Indiana University Press

Copyright © 2012 Indiana University Press
All rights reserved.
ISBN: 978-0-253-00194-8

Contents

PREFACE,
PART 1 THE POLITICAL AND LEGAL CONTEXT OF THE VOTING RIGHTS ACT,
1 Meaningful Votes Daniel McCool,
2 The Constitutional Foundations of the "Preclearance" Process: How Section 5 of the Voting Rights Act Was Enforced, 1965–2005 Peyton McCrary,
3 Influence District and the Courts: A Concept in Need of Clarity Richard L. Engstrom,
PART 2 THE DEBATE,
4 The Bull Connor Is Dead Myth: Or Why We Need Strong, Effectively Enforced Voting Rights Laws Laughlin McDonald,
5 Bull Connor Is Long Dead: Let's Move On Abigail Thernstrom,
6 The Voting Rights Act in South Dakota: One Litigator's Perspective on Reauthorization Bryan L. Sells,
7 Realistic Expectations: South Dakota's Experience with the Voting Rights Act Chris Nelson,
8 The Continuing Need for the Language-Assistance Provisions of the Voting Rights Act James Thomas Tucker,
9 Policy and Constitutional Objections to Section 203 of the Voting Rights Act Roger Clegg,
PART 3 COMMENTARY,
10 After NAMUDNO: The Shape of Future Litigation Edward Blum,
11 Looking Backward to and Forward from the 2006 Voting Rights Act Reauthorization Debo P. Adegbile,
CONTRIBUTORS,
INDEX,

CHAPTER 1

Meaningful Votes

DANIEL MCCOOL

A BRIEF HISTORY

The debate over minority voting rights began in earnest the night of April 11, 1865. General Robert E. Lee had surrendered the Army of Northern Virginia two days earlier, and the end of the Civil War was in sight. Washington, D. C., was in a state of exultation, and a boisterous crowd of citizens gathered below a window of the White House, demanding that the president say a few words. Lincoln came to the window and, reading by candlelight, explained his vision for a postwar nation. Among his ideas was a proposal to give some blacks, especially those who had fought in the war, the right to vote. Among the listeners in the crowd was John Wilkes Booth. He muttered to his friend, "That means nigger citizenship. That's the last speech he'll ever make."

In the aftermath of the Civil War and Lincoln's assassination, the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution were adopted. The Fifteenth Amendment, which became part of the Constitution in 1870, reads, "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. The Congress shall have power to enforce this article by appropriate legislation." The debate over the Fifteenth Amendment was contentious; southern states argued that it interfered with states rights. But after the amendment was adopted, the New York Times editorialized that the amendment would "put an end to further agitation of the subject."

The Times was wrong; bills to give teeth to the Fifteenth Amendment were introduced repeatedly in the U.S. Congress in the latter half of the nineteenth century. The most innovative bill, the Federal Elections bill of 1891, failed to become law due to opposition from southern Democrats. At that point, the Congress gave up on passing a meaningful voting rights bill. It was not until 1965, one hundred years and three months after Lincoln's window speech, that Congress passed the Voting Rights Act (VRA). The Congress was responding to President Johnson's demand that in the wake of "Bloody Sunday" at the Edmund Pettus Bridge in Selma, Alabama, Congress pass the "goddamnest toughest" voting bill possible. The act was passed with broad bipartisan support, but there was stiff opposition from southerners who claimed the act was a "yoke of shame," "very unjust," and an "extreme measure."

Thus began the long odyssey of the Voting Rights Act, amended and renewed four times, most recently in 2006, making it what one congressman called "arguably the most carefully reviewed civil rights measure in our Nation's history." The adoption and the extensions of the VRA have always passed with support from both parties, in spite of opposition, and all the extensions were signed into law by Republican presidents.

Although there is currently a lively debate, featured in this book, over the merits of the current law, nearly everyone describes the original VRA in superlatives:

· "Many characterize the Voting Rights Act as the most important and effective civil rights legislation Congress ever adopted."

· The VRA is "the crowning achievement of social justice and equality for all Americans."

· "The Act is rightly lauded as the crown jewel of our civil rights laws."

· "The Voting Rights Act can be characterized accurately as one of the most successful pieces of civil rights legislation ever adopted by the Congress."

· "The Voting Rights Act of 1965 has arguably been the most successful legislation to have come out of the Great Society reforms of the 1960s."

· "The Voting Rights Act is a sacred symbol of American Democracy."

· "The Voting Rights Act of 1965 has been widely hailed as the single most important achievement of our civil rights laws."

· "The historic accomplishments of the Voting Rights Act are undeniable."

The VRA is a unique piece of legislation, divided into permanent and temporary sections. Section 2 is permanent, i.e., it does not sunset on a specific date. It outlaws election procedures that "result in the denial or abridgment of the right of any citizen of the U.S. to vote on account of race or color." The act also permanently outlaws literacy and moral requirements and other such "test or device" that denies or abridges the voting rights of racial minorities.

Sections 4 through 9 and 203 are temporary, and thus have to be periodically renewed. Of these, Section 5 requires "preclearance" of all changes in voting laws or procedures in certain states and political subdivisions – "covered jurisdictions" – that meet criteria specified in Section 4 (see chapter 2). The objective of Section 5 was, in the words of the U.S. Supreme Court, to "shift the benefit of time and inertia from the perpetrators of evil to the victim." Sections 6 through 9 authorize the U.S. government to deploy federal examiners to oversee voter registration and federal observers to oversee polling places. Another temporary provision, Section 203, was added in 1975. It requires that voting materials be provided in languages other than English and assistance be provided to individuals with limited English proficiency in certain areas of the country.

The 1965 act only authorized the temporary provisions for five years, so the first reauthorization was in 1970, which reauthorized the provisions for another five years, extended the coverage of Section 5, and made the prohibition of tests and devices applicable to the entire nation. The next reauthorization, in 1975, renewed the provisions for seven years, added Section 203, and made the ban on tests and devices permanent. In 1982, Congress once again renewed the expiring provisions, this time for twenty-five years. Congress also amended Section 2 in response to an adverse Supreme Court ruling. The new language prohibited voting practices that result in discrimination, and made it unnecessary to prove discriminatory intent, which is very difficult to document. The Congress also changed the "bailout" procedure – the process by which political jurisdictions covered under Sections 4 and 5 can remove themselves from coverage.

Each of the four reauthorizations has provided an opportunity to expand the law's coverage against what supporters describe as "the great degree of human ingenuity that has gone into devising methods to abridge or deny" the rights of minority voters. Conversely, each renewal has presented opportunities for opponents of the VRA to terminate or modify the renewable sections. Media attention has tended to focus on the bipartisan support for the act and has often downplayed the opposition. But in fact there has always been resistance, especially to the renewable sections. When the act was up for renewal in 1970, Governor Lester Maddox of Georgia declared that the law was "illegal, unconstitutional and ungodly and un-American and wrong against the good people of this country." President Nixon expressed opposition to the renewal of Section 5, but signed the reauthorization anyway.

In 1975, there were again voices of opposition, especially against the new language provisions. A group of southern senators argued that "the Southern States covered by the 1965 act have made significant gains that deserve recognition and encouragement rather than 10 more years of punitive sanctions. More minority citizens are registered, voting, and holding office in these States than at any time in American history. Congress should recognize this.... Sections 4 and 5 should be allowed to expire."

By 1982 the opposition was much more diverse. Many of the old southern segregationists were gone, and new opposition arose from conservative legislators from other parts of the country. Senator Orrin Hatch of Utah was a critic of Section 2. Congressman Henry Hyde of Illinois argued that the South had "been in the penalty box long enough," and should not be subject to Section 5. One of the witnesses, a Texas lawyer, who appeared before the House committee proposed amending Section 2 to outlaw voting discrimination unless it was "reasonably necessary to protect a legitimate and concrete public interest." The attorney general for the state of South Carolina argued that "[t]he Voting Rights Act has, in my opinion, served its purpose and it should be allowed to expire.... It is now time to remove the state of South Carolina from its state of vassalage." Some people within the Reagan administration resisted renewal, and some opposed the Section 2 results test, but in the end President Reagan chose to sign the bill. And in another sign of changing political realities, Senator Strom Thurmond of South Carolina – once a symbol of ardent segregation – voted in favor of the extension. In short, the politics of the VRA were getting much more complicated.

The most recent authorization also encountered significant opposition. Although it passed both houses by huge margins, it did not "sail through Congress ... without any major turbulence." Rather, there was a spirited contest between differing visions of the renewable sections of the act and its role in American democracy. This lively debate, and the larger issue of the future impact of the entirety of the VRA, are the focus of this book.

IMPACT

The statistics regarding increases in minority voting and political participation since the firstVRA was passed are stunning. Many of them occurred within the first five years after the act's passage in 1965. According to one study, "there was a substantial jump in black voter registration in a relatively short period" following the passage of the VRA. Other data support this. African American voter registration in the eleven states of the former Confederacy increased from 43.1 percent in 1964 to 62 percent in 1968. In Mississippi, the gap between white and black voter registration rates went from 63.2 percent in 1965 to 6.3 percent in 1988. Of course, not all of these increases are wholly attributable to the VRA, but the act is clearly responsible for an "immediate and breathtaking transformation."

As a result, the forty years following the passage of the act have been "marked by major gains in minority office holding." By 2002, an impressive 9,430 African Americans held elective office; there were only 1,469 in 1970. By 2004, 43 African Americans were serving in Congress, and more than 482 African Americans were in state legislatures. The number of Latino registered voters grew from 7.6 million in 2000 to 9 million in 2004. By 2000 there were 5,205 Hispanic elected officials in the nation. There have also been dramatic increases in Native American voting and political participation (see chapters 6 and 7). By 2005 there were 37 American Indians serving in state legislatures, and seven Native Alaskans serving in that state's legislature. The number of Asian Americans holding elective office increased from 120 in 1978 to 346 in 2004.

Another measure of the VRA's impact is the amount of litigation and legal actions taken under the act. Much of this litigation has occurred under Section 2 – one of the permanent sections of the act. Since the 1982 reauthorization, there have been 331 reported cases, encompassing 763 decisions, filed under Section 2. Plaintiffs prevailed in 123 of these cases. In addition, there may be more than a thousand Section 2 cases that went unreported.

There have also been numerous cases filed under Section 5. The Department of Justice and private parties have filed 107 enforcement actions in court in an effort to force political jurisdictions to abide by the "preclearance" requirement. The U.S. Justice Department has the obligation to review all preclearance requests, which can be quite numerous. The preclearance requests submitted to the Department of Justice have averaged between 4,000 and 6,000 annually from covered jurisdictions. In 2004, for example, the Department reviewed 5,211 submissions.

Another measure of Section 5 activity is the number of objections filed by the U.S. Justice Department in response to the preclearance requests. A study of objection letters from 1965 to 1999 found that 996 letters had been sent, affecting 1,074 jurisdictions. Another 47 objection letters were sent from 2000 to 2008. According to the National Commission study, about half of the objection letters were filed after the 1982 reauthorization. In response to these objection letters, covered jurisdictions withdrew 205 proposed voting law changes between 1982 and 2003.

Section 203, which covers thirty-one states in whole or in part, has also generated litigation. Since 1965 the Justice Department has filed forty cases to force compliance with the language provisions in the VRA. In addition, the 505 political subdivisions covered by Section 203 or the language-assistance provision in Section 4 have provided language assistance to thousands of voters.

Another kind of legal action under the VRA is the deployment of federal observers. Since 1965, more than 22,000 federal observers have been assigned to political jurisdictions; in 2004 alone more than 1,400 observers were deployed to 105 jurisdictions in 29 states.

These impressive data have given rise to two contradictory arguments. From one perspective, these gains are potent evidence that the VRA is absolutely essential and the renewable provisions must continue for, at a minimum, the twenty-five years that was just authorized by Congress in the 2006. But to others, these data strongly indicate that the act, especially its renewable sections, is no longer necessary, that it is an anachronism left over from an era that no longer exists. Both of these perspectives were very much in evidence during the debate over reauthorization in 2006, and both are fully represented in the following chapters.

Although nearly all parties agree that the VRA was a necessary step in 1965, there is widespread disagreement over the current and future impact and need for the VRA. The opinions can be quite divergent. On the floor of the House, Congresswoman Sheila Jackson Lee of Texas described the VRA as "no ordinary piece of legislation. For millions of Americans, and many of us on this Committee, the Voting Rights Act of 1965 is a sacred treasure, earned by the sweat and toil and tears and blood of ordinary Americans who showed the world it was possible to accomplish extraordinary things." A very different perspective was presented by Congressman Lynn Westmoreland of Georgia:

[T]he bill we have before us is fatally flawed. This rewrite is outdated, unfair, and unconstitutional. [It] treats Georgia as if nothing has changed in the past 41 years. In other words, this rewrite is based on the assumption that the Voting Rights Act hasn't worked.

It was clear, even before the debate in Congress began, that there would be considerable conflict over reauthorization. Both sides prepared for the coming battle.

PREPARING FOR REAUTHORIZATION

The struggle to pass a VRA reauthorization bill started long before the 2007 expiration of the temporary provisions. Both sides had a considerable body of research upon which to base their arguments in Congress. For proponents, the first step was to prepare a detailed record that documented continuing discrimination, which in turn justified extending the renewable sections. This not only made good politics, it also reduced the probability of a successful constitutional challenge; earlier Supreme Court decisions had made it clear that such a record was necessary so that the remedy offered by the act was "proportional and congruent" with the perceived problem.

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