Voting Rights Act of 1965

Voting Rights Act of 1965 Congress passed the Voting Rights Act in 1965 to improve voter registration and turnout among African‐Americans. Since 1965, it has been amended or reauthorized in 1970, 1975, and 1982, and parts of it are scheduled to expire in 2007.

History of African‐American Voting Rights

Prior to passage of the Voting Rights Act of 1965, the national government responded to racial discrimination in voting in the South in a tepid, haphazard way that relied on litigation. This was due in part to restrictive Supreme Court decisions, such as the Civil Rights Cases (1883), which limited the reach of congressional authority to enforce the Civil War Amendments. But it was also due to the South's disproportionate influence in Congress, and particularly in the Senate, where southern Democrats could successfully filibuster.

Prior to World War II, minority voter registration in the deep South was virtually nonexistent. In 1940 about 150,000 blacks, representing about 3 percent of the five million southern blacks of voting age, were registered. Various tactics and devices, such as literacy tests (often discriminatorily applied), economic and physical coercion, and the white primary, combined to keep blacks from voting. The demise of the white primary, banned by the Supreme Court in Smith v. Allwright (1944), and the return from World War II of many black soldiers no longer willing to accept the Jim Crow system, resulted in some increases in voter registration. But the hostile southern resistance to Brown v. Board of Education (1954) temporarily ended those gains.

The Civil Rights Movement

Brown was about school desegregation, but it soon became a symbol of the drive for complete racial equality. It was extended to prohibit all forms of public segregation, and it energized a robust civil rights movement. Beginning late in the 1950s, black civil rights organizations such as the Southern Christian Leadership Conference (SCLC), the Student Nonviolent Coordinating Committee (SNCC), and the Council on Racial Equality (CORE) organized and implemented various sit‐ins, boycotts, voter registration drives, freedom rides, and “freedom summers” in order to end racial discrimination of all kinds. Enfranchising African‐Americans was a major goal.

In 1961 there were fewer than five cases in the federal courts challenging southern voter discrimination. The 1963 report of the Civil Rights Commission pointed to the inadequacies of a litigation strategy in both a Republican (Eisenhower) and Democratic ( Kennedy) administrations, and it called for more direct action by the national government to implement meaningful voter‐registration plans.

Civil rights was not initially a major agenda item for the Kennedy administration. Its concern increased and its response became more forceful with the escalation of the protest movement, the need to protect the freedom riders, the 1963 march on Washington, and resistance to integrating the universities of Mississippi and Alabama.

More confrontational strategies to combat voting discrimination increased pressure on Congress to pass meaningful legislation. The 1965 SCLC march to Selma, Alabama, was designed to create a scenario that would force the federal government to pass a more aggressive, interventionist voting‐rights bill. The (expected and hoped for) harsh reaction of Selma sheriff Jim Clark to the protesters, and the murder of several of them, carried around the world by television, engendered a dramatic reaction to the indiscriminate use of police dogs, fire hoses, and excessive force and violence against the nonviolent civil‐rights protesters. Shortly thereafter, the Johnson administration introduced the Voting Rights Act, and within five months it was the law of the land.

Direct Federal Intervention

The Voting Rights Act, based on Congress's power to enforce the Fifteenth Amendment, broadly restated the amendment's prohibitions against voting discrimination. But it was specially directed toward seven southern states that had used various tests and devices to obstruct black voter registration.

The “covered” states (or subdivisions) were those that employed a “test or device” to determine voter qualifications and in which less than 50 percent of the voting age population was registered to vote for president on 1 November 1964: Alabama, Georgia, Louisiana, Mississippi, North Carolina (parts), South Carolina, Virginia, and, additionally, Alaska. The act suspended for five years the use of all such tests and devices in the covered states. Arkansas, Texas, and Florida were not covered because they did not employ literacy tests, although they too had large nonvoting African‐American populations. A covered state could “bail out” by demonstrating to a federal district court in Washington, D.C., that no test or device had been used for racial discrimination in the preceding five years. Alaska, which was initially covered although not an intended target of the act, was permitted to bail out in 1969. No other covered state has been permitted to do so.

Under the act, U.S. marshals and other federal officers could be used as examiners to ensure that African‐Americans and members of other minority groups could register to vote without delay or harassment by local white registrars. Indeed, they were authorized to register qualified voters directly.

Most controversial was section 5, the preclearance provision. To ensure that covered states did not pass new legislation to obstruct black voter registration or to dilute the expected emergent voting strength of blacks, the states were prohibited from enacting any change in “voting qualifications or prerequisites to voting, or standard, practice or procedures with respect to voting” without first obtaining clearance from the attorney general or a federal district court in Washington, D.C. Thus these states had an affirmative burden to secure federal permission to change their voting laws. (Section 5 was not formally implemented until 1971; the vast majority of all changes submitted have been precleared by the attorney general.)5

The Voting Rights Act shifted the burden from the victims of discrimination to the perpetrators; it was the latter who now had to demonstrate that they did not discriminate. This was an unprecedented use of federal power and limit on the powers of the covered states to set and enforce voter qualifications (see Federalism), but the Supreme Court upheld its constitutionality in South Carolina v. Katzenbach (1966). The decision was unanimous except for Justice Hugo Black's objection to section 5 as a violation of the Tenth Amendment. A special provision of the law, which was inserted to enfranchise a large group of voters in the Puerto Rican community in New York City, provided that English‐language literacy tests could not be used to deny the vote to persons with at least a sixth‐grade education in another language in an “American flag” school. This was upheld as an appropriate congressional enforcement of the Fourteenth Amendment in Katzenbach v. Morgan (1966).

Extensions of the Act

In 1970 the Voting Rights Act was extended for five years. The ban on literacy tests was made nationwide, the coverage formula was amended to include additional jurisdictions, and extended durational residency requirements to vote for president were prohibited. A minimum voting age of eighteen was also enacted for both state and federal elections. These changes, except for the eighteen‐year‐old voting age in state elections (see Twenty‐sixth Amendment) were upheld in Oregon v. Mitchell (1970). In 1975 the act was extended for an additional seven years. The ban on literacy tests was made permanent, and bilingual assistance and federal enforcement efforts for language‐minority voters (Native Americans, Alaskan natives, and Spanish‐heritage citizens) was required in twenty‐four states.

The act was extended once again in 1982, but only after extensive debate and initial opposition from the *Reagan administration, which claimed that it had achieved its purposes and should be allowed to expire. Section 5 was extended for twenty‐five years, and the bail‐out procedure for covered states was amended. Now a state may bail out of the preclearance requirement if it can show that it has not discriminated for 10 years and has made efforts to promote minority voting.

A heated controversy in the 1982 debates concerned section 2, which had been the focus of the Supreme Court's decision in Mobile v. Bolden (1980). In that case the Court overturned a federal court order that the city of Mobile, Alabama, revamp its at‐large electoral system to ensure that its 40 percent African‐American minority had a fair opportunity to elect some representatives. Under the existing system, dating back to 1911, no black had ever been elected to the three‐member city commission. The Court held that there was no violation of either section 2 of the act or of the Fifteenth Amendment because blacks could both register and vote, and because there was no evidence that the Mobile electoral system was motivated by a discriminatory intent.

As revised in 1982, section 2 (which now applies nationwide) allows a voter to challenge a voting practice or procedure by showing that the results of such a practice or procedure, based on a totality of the evidence presented, are racially discriminatory. Plaintiffs are forbidden, however, to use section 2 to establish racial quotas, and a system of proportional representation designed to protect a particular minority from electoral defeat cannot be required. The revision of section 2 has led to much litigation—and to dozens of cases won or successfully settled by minority plaintiffs.

After the 1990 round of redistricting, the amended section 2 was employed to prevent racially dilutive or retrogressive effects. This lead to efforts to maximize the creation majority‐minority districts, or seats to which people of color could elect representatives. Often these seats were irregular in shape, or otherwise did not follow some traditional principles of reapportionment, such as geographical compactness.

In Shaw v. Reno (1993), white voters challenged a majority‐minority district in North Carolina, and the Supreme Court ruled that the use of race for redistricting to improve minority representation was unconstitutional if the redistricting occurred solely on account of race. According to Justice Sandra Day O'Connor, the use of race to create minority seats, as had been the practice under section 2, would have to survive strict scrutiny. This decision was subsequently reemphasized in Miller v. Johnson (1995). These two cases appeared to doom section 2 and the use of the Voting Rights Act to improve minority representation.

But in Bush v. Vera (1996) the Supreme Court stated that section 2 compliance could be an interest compelling enough to justify creating a “race‐predominant” district. Eventually, in Hunt v. Cromartie (2001), the Court upheld the creation of minority seats fashioned under section 2, and into the new round of redistricting that occurred after the 2000 census, it appears that race may be used as one of several factors when drawing new lines.

The Voting Rights Act was subject to other litigation in the 1990s. In Presley v. Etowah County Commissioners (1992), the Supreme Court limited the application of section 5, and in Johnson v. De Grandy (1994), the Court held that the proportion of opportunity districts to a minority group's share of the electorate was “relevant” as a measure of the section 2 fairness of redistricting plans. In Holder v. Hall (1994), section 2 was deemed not to authorize courts to require increases in the size of governing bodies as a vote dilution remedy, while in Bossier Parish School Board v. Reno (2000), the Court stated that the only purpose prohibited by section 5 was a purposive retrogression. Finally in Georgia v. Ashcroft (2003), the Court enunciated a totality of circumstances test for evaluating section 5, stating that courts must consider the overall influence of a minority group in all districts to ascertain whether retrogression had occurred. This ruling appeared to depart from previous readings of section 5, potentially opening up new Voting Rights Act litigation.

Overall, the Voting Rights Act has been the most successful civil rights act ever passed by Congress. It has resulted in significant increases in minority registration, voting, and the election of representatives. Efforts at vote dilution focus on reapportionment, gerrymandering, and the misuse of multimember districts and at‐large elections (see Fair Representation). Covered states are still monitored by the attorney general under section 5, and vote‐dilution efforts in other states have increasingly been challenged under section 2. More than a quarter of a century after its passage, the Voting Rights Act is alive and well.

See also Race and Racism; Vote, Right to.

Bibliography

Howard Ball,, Dale Krane,, and and Thomas P. Lauth , Compromised Compliance: Implementation of the 1965 Voting Rights Act (1982).
Numan V. Bartley and and Hugh Graham , Southern Politics and the Second Reconstruction (1975).
Taylor Branch , Parting the Waters (1988).
David I. Garrow , Protest at Selma: Martin Luther King, Jr., and the Voting Rights Act of 1965 (1978).
Bernard Grofman and Chandler Davidson eds., The Quiet Revolution in the South: The Impact of the Voting Rights Act, 1965–1990 (1994).
Stephen Lawson , Black Ballots: Voting Rights in the South, 1944–1969 (1976).

Howard Ball

; Revised by

David Schultz