Voting Rights Act of 1965
Voting Rights Act of 1965
The Voting Rights Act of 1965 is a sweeping federal law that seeks to prevent voting discrimination based on race, color, or membership in a language minority group. The act was passed in the aftermath of one of the more violent episodes in the history of the civil rights movement. In 1965 Dr. Martin Luther King Jr., led a group of civil rights supporters on a march to Selma, Alabama, to demand voting rights. They were met by police violence that resulted in the deaths of several marchers. The Selma violence galvanized voting rights supporters in Congress. President Lyndon B. Johnson responded by introducing the Voting Rights Act, the most sweeping piece of civil rights law in one hundred years. Congress enacted the measure five months later.
The passage of the Voting Rights Act was a watershed event in U.S. history. For the first time the federal government undertook voting reforms that had traditionally been left to the states. The act prohibits the states and their political subdivisions from imposing voting qualifications or prerequisites to voting or from imposing standards, practices, or procedures that deny or curtail the right of a U.S. citizen to vote because of race, color, or membership in a language minority group. The act was extended in 1970 and again in 1982, when its provisions were given an additional term of twenty-five years.
Southern states challenged the legislation as a dangerous attack on states' rights, but in South Carolina v. Katzenbach, 383 U.S. 301, 86 S. Ct. 803, 15 L. Ed. 2d 769 (1966), the U.S. Supreme Court upheld the constitutionality of the act, even though it was, in the words of Chief Justice Earl Warren, "inventive."
The initial act covered the seven states in the South that had used poll taxes, literacy tests, and other devices to obstruct registration by African Americans. Under the law a federal court can appoint federal examiners, who are authorized to place qualified persons on the list of eligible voters. The act waived accumulated poll taxes and abolished literacy tests and similar devices in the states to which it applied.
In addition, the act requires the seven states to obtain "preclearance" from the Justice Department or the U.S. District Court for the District of Columbia before changing the electoral system. The 1982 extension of the act expanded this provision to include all the states. Thus, a voter in any state may challenge a voting practice or procedure on the grounds that it is racially discriminatory either by intent or by effect.
The act has been used to create congressional districts that have a majority of minority voters so as to ensure minority representation. In Shaw v. Hunt, 517 U.S. 899 116 S. Ct. 1894, 135 L. Ed. 2d 207 (1996), however, the Supreme Court ruled that the redrawing of a North Carolina congressional district into a "bizarre-looking" shape so as to include a majority of African Americans violated the Equal Protection Clause of the Fourteenth Amendment and therefore could not be justified by the Voting Rights Act.
Voting Rights Act of 1965
For Legislative History of Act, see p. 2437
Public Law 89–100; 79 Stat. 437
This Act shall be known as the "Voting Rights Act of 1965."
Sec. 2. No voting qualifications or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.
Sec. 3 (a) Whenever the Attorney General institutes a proceeding under any statute to enforce the guarantees of the fifteenth amendment in any State or political subdivision the Court shall authorize the appointment of Federal examiners by the United States Civil Service Commission in accordance withe section 6 to serve for such period of time and for such political subdivisions as the court shall determine is appropriate to enforce the guarantees of the fifteenth amendment (1) as part of any interlocutory order if the court determines that the appointment of such examiners is necessary to enforce such guarantees or (2) as part of any final judgment if the court finds that violations of the Fifteenth Amendment justifying equitable relief have occurred in such State or subdivision: Provided, That the court need not authorize the appointment of examiners if any incidents of denial or abridgement of the right to vote on account of race or color (1) have been few in number and have been promptly and effectively corrected by State or local action, (2) the continuing of effect of such incidents has been eliminated, and (3) there is no reasonable probability of their recurrence in the future.
(b) If in a proceeding instituted by the Attorney General under any statute to enforce the guarantees of the Fifteenth Amendment in any State or political subdivision the court finds that a test or device has been used for the purpose or with the effect of denying or abridging the right of any citizen of the United States to vote on account of race or color, it shall suspend the use of tests and devices in such State or political subdivisions as the court shall determine is appropriate and for such period as it deems necessary.
(c) If in any proceeding instituted by the Attorney General under any statute to enforce the guarantees of the Fifteenth Amendment in any State or political subdivision the court finds that violations of the Fifteenth Amendment justifying equitable relief have occurred within the territory of such State or political subdivision, the court, in addition to such relief as it may grant, shall retain jurisdiction for such period as it may deem appropriate and during such period no voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect at the time the proceeding was commenced shall be enforced unless and until the court finds that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying abridging the right to vote on account of race or color: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, except that neither the court's finding nor the Attorney General's failure to object shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure.
Sec. 4 (a) To assure that the right of citizens of the United States to vote is not denied or abridged on account of race or color, no citizen shall be denied the right to vote in any Federal, State, or local election because of his failure to comply with any test or device in any State with respect to which the determinations have been made under subsection (b) or in political subdivision with respect to which such determinations have been made as a separate unit, unless the United States District Court for the District of Columbia in an action for a declaratory judgment brought by such State or subdivision against the United States has determined that no such test or device has been used during the five years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color: Provided, That no such declaratory judgment shall issue with respect to any plaintiff for a period of five years after the entry of a final judgment of any court of the United States, other than the denial of a declaratory judgment under this section, whether entered prior to or after the enactment of this Act, determining that denials or abridgments of the right to vote on account of race or color through the use of such tests or devices have occurred anywhere in the territory of such plaintiff.
An action pursuant to this subsection shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 of the United States Code and any appeal shall lie to the Supreme Court. The court shall retain jurisdiction of any action pursuant to this subsection for five years after judgment and shall reopen the action upon motion of the Attorney General alleging that a test or device has been used for the purpose or with the effect of denying or abridging the right to vote on account of race or color.
If the Attorney General determines that he has no reasons to believe that any such test or device has been used during the five years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color, he shall consent to the entry of such judgment.
(b) The provisions of subsection (a) shall apply in any State or in any political subdivision of a state which (1) the Attorney General determines maintained on November 1, 1964, any test or device, and with respect to which (2) the Director of the Census determines that less than 50 per centum of the persons of voting age residing therein were registered on November 1, 1964, or that less than 50 per centum of such persons voted in the presidential election of November 1, 1964.
A determination or certification of the Attorney General or of the Director of the Census under this section or under section 6 or section 13 shall not be reviewable in any court and shall be effective upon publication in the Federal Register.
(c) The phrase "test or device" shall mean any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class.
(d) For purposes of this section no State or political subdivision shall be determined to have engaged in the use of tests or devices for the purpose or with the effect of denying or abridging the right to vote on account of race or color if (1) incidents of such use have been few in number and have been promptly and effectively corrected by State or local action, (2) the continuing effect of such incidents has been eliminated, and (3) there is no reasonable probability of their recurrence in the future.
(e) (1) Congress hereby declares that to secure the rights under the Fourteenth Amendment of persons educated in American-flag schools in which the predominant classroom language was other than English, it is necessary to prohibit the States from conditioning the right to vote of such persons on ability to read, write, understand, or interpret any matter in the English language.
(2) No person who demonstrates that he has successfully completed the sixth primary grade in a public school in, or a private school accredited by, any State or territory, the District of Columbia, or the Commonwealth of Puerto Rico in which the predominant classroom language was other than English, shall be denied the right to vote in any Federal, State, or local election because of his inability to read, write, understand, or interpret any matter in the English language, except that in States in which State law provides that a different level of education is presumptive of literacy, he shall demonstrate that he has successfully completed an equivalent level of education in a public school in, or a private school accredited by, any State or territory, the District of Columbia, or the Commonwealth of Puerto Rico in which the predominant classroom language was other than English.
Sec. 5. Whenever a State or political subdivision with respect to which the prohibitions set forth in section 4(a) are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, except that neither the Attorney General's failure to object nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 of the United States Code and any appeal shall lie to the Supreme Court.
Sec. 6. Whenever (a) a court has authorized the appointment of examiners pursuant to the provisions of section 3(a), or (b) unless a declaratory judgment has been rendered under section 4(a), the Attorney General certifies with respect to any political subdivision named in, or included within the scope of, determinations made under section 4(b) that (1) he has received complaints in writing from twenty or more residents of such political subdivision alleging that they have been denied the right to vote under color of law on account of race or color, and that he believes such complaints to be meritorious, or (2) that in his judgment (considering, among other factors, whether the ration of nonwhite persons to white persons registered to vote within such subdivision appears to him to be reasonably attributable to violations of the Fifteenth Amendment or whether substantial evidence exists that bona fide efforts are being made within such subdivision to comply with the fifteenth amendment), the appointment of examiners is otherwise necessary to enforce the guarantees of the Fifteenth Amendment, the Civil Service Commission shall appoint as many examiners for such subdivision as it may deem appropriate to prepare and maintain lists of persons eligible to vote in Federal, State and local elections. Such examiners, hearing officers provided for in section 9(a), and other persons deemed necessary by the Commission to carry out the provisions and purposes of this Act shall be appointed, compensated, and separated without regard to the provisions of any statute administered by the Civil Service Commission, and service under this Act shall not be considered employment for the purposes of any statute administered by the Civil Service Commission, except the provisions of section 9 of the Act of August 2, 1939, as amended (5 U.S.C. 118i), prohibiting partisan political activity: Provided, That the Commission is authorized, after consulting the head of the appropriate department or agency, to designate suitable persons in the official service of the United States, with their consent, to serve in these positions. Examiners and hearing officers shall have the power to administer oaths.
Sec. 7. (a) The examiners for each political subdivision shall, at such places as the Civil Service Commission shall by regulation designate, examine applicants concerning their qualifications for voting. An application to an examiner shall be in such form as the Commissioner may require and shall contain allegations that the applicant is not otherwise registered to vote.
(b) Any person whom the examiner finds, in accordance with instructions received under section 9(b), to have the qualifications prescribed by State law not inconsistent with the Constitution and laws of the United States shall promptly be placed on a list of eligible voters. A challenge to such listing may be made in accordance with section 9(a) and shall not be the basis for a prosecution under section 12 of this Act. The examiner shall certify and transmit such list, and any supplements as appropriate, at least once a month, to the offices of the appropriate election officials, with copies to the Attorney General and the attorney general of the State, and any such lists and supplements thereto transmitted during the month shall be available for public inspection on the last business day of the month and in any event not later than the forty-fifth day prior to any election. The appropriate State or local election official shall place such names on the official voting list. Any person whose name appears on the examiner's list shall be entitled and allowed to vote in the election district of his residence unless and until the appropriate election officials shall have been notified that such person has been removed from such list in accordance with subsection (d): Provided, That no person shall be entitled to vote in any election by virtue of this Act unless his name shall have been certified and transmitted on such a list to the offices of the appropriate election officials at least forty-five days prior to such election.
(c) The examiner shall issue to each person who name appears on such a list a certificate evidencing his eligibility to vote.
(d) A person whose name appears on such a list shall be removed therefrom by an examiner if (1) such person has been successfully challenged in accordance with the procedure prescribed in section 9, or (2) he has been determined by an examiner to have lost his eligibility to vote under State law not inconsistent with the Constitution and the laws of the United States.
Sec. 8. Whenever an examiner is serving under this Act in any political subdivision, the Civil Service Commission may assign, at the request of the Attorney General, one or more persons, who may be officers of the United States, (1) to enter and attend at any place for holding an election in such subdivision for the purpose of observing whether persons who are entitled to vote are being permitted to vote, and (2) to enter and attend at any place for tabulating the votes cast at any election held in such subdivision for the purpose of observing whether votes cast by persons entitled to vote are being properly tabulated. Such persons so assigned shall report to an examiner appointed for such political subdivision, to the Attorney General, and if the appointment of examiners has been authorized pursuant to section 3(a), to the court.
Sec. 9. (a) Any challenge to a listing on an eligibility list prepared by an examiner shall be heard and determined by a hearing officer appointed by and responsible to the Civil Service Commission and under such rules as the Commission shall by regulation designate, and within ten days after the listing of the challenged person is made available for public inspection, and if supported by (1) the affidavits of at least two persons having personal knowledge of the facts constituting grounds for the challenge, and (2) a certification that a copy of the challenge and affidavits have been served by mail or in person upon the person challenged at his place of residence set out in the application. Such challenge shall be determined within fifteen days after has been filed. A petition for review of the decision of the hearing officer may be filed in the United States court of appeals for the circuit in which the person challenged resides within fifteen days after service of such decision by mail on the person petitioning for review but no decision of a hearing officer shall be reversed unless clearly erroneous. Any person listed shall be entitled and allowed to vote pending final determination by the hearing officer and by the court.
(b) The times, places, procedures, and form for application and listing pursuant to this Act and removal from eligibility lists shall be prescribed by regulations promulgated by the Civil Service Commission and the Commission shall, after consultation with Attorney General, instruct examiners concerning applicable State law not inconsistent with the Constitution and laws of the United States with respect to (1) the qualifications required for listing, and (2) loss of eligibility to vote.
(c) Upon the request of the applicant or challenge or on its own motion the Civil Service Commission shall have the power to require by subpoena the attendance and testimony of witnesses and the production of documentary evidence relating to any matter pending before it under the authority of this section. In case of contumacy or refusal to obey a subpoena, any district court of the United States or the United States court of any territory or possession, or the District Court of the United States for the District of Columbia, within the jurisdiction of which said person guilty of contumacy or refusal to obey is found or resides of is domiciled or transacts business, or has appointed an agent for receipt of service of process, upon application by the Attorney General of the United States shall have jurisdiction to issue to such person an order requiring such person to appear before the Commission or a hearing officer, there to produce pertinent, relevant, and nonprivileged documentary evidence if so ordered, or there to give testimony touching the matter under investigation; and any failure to obey such order of the court may be punished by said court as a contempt thereof.
Sec. 10. (a) The Congress finds that the requirement of the payment of a poll tax as a precondition to voting (i) precludes persons of limited means from voting or imposes unreasonable financial hardship upon such persons as a precondition to their exercise of the franchise, (ii) does not bear a reasonable relationship to any legitimate State interest in the conduct of elections, and (iii) in some areas has the purpose or effect of denying persons the right to vote because of race color. Upon the basis of these findings, Congress declares the constitutional right of citizens to vote is denied or abridged in some areas by the requirement of the payment of a poll tax as a precondition to voting.
(b) In the exercise of the powers of Congress under section 5 of the Fourteenth Amendment and section 2 of the Fifteenth Amendment, the Attorney General is authorized and directed to institute forthwith in the name of the United States such actions, including actions against States or political subdivisions, for declaratory judgment or injunctive relief against the enforcement of any requirement of the payment of a poll tax as a precondition to voting, or substitute therefore enacted after November 1, 1964, as will be necessary to implement the declaration of subsection (a) and the purposes of this section.
(c) The district courts of the United States shall have jurisdiction of such actions which shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 of the United States Code and any appeal shall lie to the Supreme Court. It shall be the duty of the judges designates to hear the case to assign the case for hearing at the earliest practicable date, to participate in the hearing and determination thereof, and to cause the case to be in every way expedited.
(d) During the pendency of such actions, and thereafter if the courts, notwithstanding this action by the Congress, should declare the requirement of the payment of a poll tax to be constitutional, no citizen of the United States who is a resident of a State or political subdivision with respect to which determinations have been made under subsection 4(b) and declaratory judgment has not been entered under subsection 4(a), during the first year he becomes otherwise entitled to vote by reason of registration by State or local officials or listing by an examiner, shall be denied the right to vote for failure to pay a poll tax if he tenders payment of such tax for the current year to an examiner or to the appropriate State or local official at least forty-five days prior to election, whether or not such tender would be timely or adequate under State law. An examiner shall have authority to accept such payment from any person authorized by this Act to make an application for listing, and shall issue a receipt for such payment. The examiner shall transmit promptly any such poll tax payment to the office of the State or local official authorized to receive such payment under State law, together with the name and address of the applicant.
Sec. 11. (a) No person acting under color of law shall fail or refuse to permit any person to vote who is entitled to vote under any provision of this Act or is otherwise qualified to vote, or willfully fail or refuse to tabulate, count, and report such person's vote.
(b) No person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for urging or aiding any person to vote or attempt to vote, or intimidate, threaten, or coerce any person for exercising any powers or duties under section 3(a), 6, 8, 9, 10, or 12(e).
(c) Whoever knowingly or willfully gives false information as to his name, address, or period of residence in the voting district for the purpose of establishing his eligibility to register or vote, or conspires with another individual for the purpose of encouraging his false registration to vote or illegal voting, or pays or offers to pay or accepts payment either for registration to vote or for voting shall be fined not more than $10,000 or imprisoned not more than five years, or both: Provided, however, That this provision shall be applicable only to general, special, or primary elections held solely or in part for the purpose of selecting or electing any candidate for the office of President, Vice President, presidential elector, Member of the United States Senate, Member of the United States House of Representatives, or Delegates or Commissioners from the territories or possessions, or Resident Commissioner of the Commonwealth of Puerto Rico.
(d) Whoever, in any matter within the jurisdiction of an examiner or hearing officer knowingly and willfully falsifies or conceals a material fact, or makes any false, fictitious, or fraudulent statements or representations, or makes or uses any false writing or document knowing the same be fined not more than $10,000 or imprisoned not more than five years, or both.
Sec. 12. (a) Whoever shall deprive or attempt to deprive any person of any right secured by section 2, 3, 4, 5, 7, or 10 or shall violate section 11(a) or (b), shall be fined not more than $5,000, or imprisoned not more than five years, or both.
(b) Whoever, within a year following an election in a political subdivision in which an examiner has been appointed (1) destroys, defaces, mutilates, or otherwise alters the marking of a paper ballot which has been cast in such election, or (2) alters any official record of voting in such election tabulated from a voting machine or otherwise, shall be fined not more than $5,000, or imprisoned not more than five years, or both.
(c) Whoever conspires to violate the provisions of subsection (a) or (b) of this section, or interface with any right secured by section 2, 3, 4, 5, 7, 10, or 11(a) or (b) shall be fined not more than $5,000, or imprisoned not more than five years, or both.
(d) Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice prohibited by section 2, 3, 4, 5, 7,10, 11, or subsection (b) of this section, the Attorney General may institute for the United States, or in the name of the United States, an action for preventive relief, including an application for a temporary or permanent injunction, restraining order, or other order, and including an order directed to the State and State or local election officials to require them (1) to permit persons listed under this Act to vote and (2) to count such votes.
(e) Whenever in any political subdivision in which there are examiners appointed pursuant to this Act any persons allege to such an examiner within forty-eight hours after the closing of the polls that notwithstanding (1) their listing under this Act or registration by an appropriate election official and (2) their eligibility to vote, they have not been permitted to vote in such election, the examiner shall forthwith notify then Attorney General may forthwith file with the district court and application for an order providing for the marking, casting, and counting of the ballots of such persons and requiring the inclusion of their votes in the total vote before the results of such election shall be deemed final and any force or effect given thereto. The district court shall hear and determine such matters immediately after the filing of such application. The remedy provided in this subsection shall not preclude any remedy available under State of Federal law.
(f) The district courts of the United States shall have jurisdiction of proceedings instituted pursuant to this section and shall exercise the same without regard to whether a person asserting rights under the provisions of this Act shall have exhausted any administrative or other remedies that may be provided by law.
Sec. 13. Listing procedures shall be terminated in any political subdivision of any State (a) with respect to examiners appointed pursuant to clause (b) of section 6 whenever the Attorney General notifies the Civil Service Commission, or whether the District Court for the District of Columbia determines in an action for declaratory judgment brought by any political subdivision with respect to which the Director of the Census has determined that more than 50 per centum of the nonwhite persons of voting age residing therein are registered to vote, (1) that all persons listed by an examiner for such subdivision have been placed on the appropriate voting registration roll, and (2) that there is no longer reasonable cause to believe that persons will be deprived of or denied the right to vote on account of race or color in such subdivision, and (b), with respect to examiners appointed pursuant to section 3(a), upon order of the authorizing court. A political subdivision may petition the Attorney General for the termination of listing procedures under clause (a) of this section, and may petition the Attorney General to request the Director of the Census to take such survey or census as may be appropriate for the making of the determination provided for in this section. The District Court for the District of Columbia shall have jurisdiction to require such survey or census to be made by the Director of the Census and it shall require him to do so if it deems the Attorney General's refusal to request such survey or census to be arbitrary or unreasonable.
Sec. 14. (a) All cases of criminal contempt arising under the provisions of this Act shall be governed by section 151 of the Civil Rights Act of 1957 (42 U.S.C. 1995).
(b) No court other than the District Court for the District of Columbia or a court of appeals in any proceeding under section 9 shall have jurisdiction to issue any declaratory judgment pursuant to section 4 or section 5 or any restraining order or temporary or permanent injunction against the execution or enforcement of any provision of this Act or any action of any Federal officer or employee pursuant hereto.
(c) (1) The terms "vote" or "voting" shall include all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing pursuant to this Act, or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election.
(2) The term "political subdivision" shall mean any county or parish, except that where registration for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting.
(d) In any action for a declaratory judgment brought pursuant to section 4 or section 5 of this Act, subpoenas for witnesses who are required to attend the District Court for the District of Columbia may be served in any judicial district of the United States: Provided, That no writ of subpoena shall issue for witnesses without the District of Columbia at a greater distance than one hundred miles from the place of holding court without the permission of the District Court for the District of Columbia being first upon proper application and cause shown.
Sec. 15. Section 2004 of the Revised Statutes (42 U.S.C. 1971),1 as amended by section 131 of the Civil Rights Act of 1957 (71 Stat. 637), and amended by section 601 of the Civil Rights Act of 1960 (74 Stat. 90), and as further amended by section 101 of the Civil Rights Act of 1964 (78 Stat. 241), is further amended as follows:
(a) Delete the word "Federal" wherever it appears in subsections (a) and (c);
(b) Repeal subsection (f) and designate the present subsections (g) and (h) as (f) and (g), respectively.
Sec. 16. The Attorney General and the Secretary of Defense, jointly, shall make a full and complete study to determine whether, under the laws or practices of any State or States, there are preconditions to voting, which might tend to result in discrimination against citizens serving in the Armed Forces of the United States seeking to vote. Such officials shall, jointly, make a report to the Congress not later than June 30, 1966, containing the results of such study, together with a list of any States in which such preconditions exist, and shall include in such report such recommendations for legislation as they deem advisable to prevent discrimination in voting against citizens serving in the Armed Forces of the United States.
Sec. 17. Nothing in this Act shall be construed to deny, impair, or otherwise adversely affect the right to vote of any person registered to vote under the law of any State or political subdivision.
Sec. 18. There are hereby authorized to be appropriate such sums as are necessary to carry out the provisions of this Act.
Sec. 19. If any provision of this Act or the application thereof to any person or circumstances is held invalid, the remainder of the Act and the application of the provision to other persons not similarly situated or to other circumstances shall not be not be affected thereby.
1 42 U.S.C.A. § 1971.
Approved August 6, 1965.
Voting Rights Act
Voting Rights Act
On July 27, 2006, President George W. Bush signed the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Reauthorization and Amendments Act of 2006 into law. That act extended several key but nonpermanent parts of the Voting Rights Act (VRA) of 1965 and its subsequent amendments.
The renewal was preceded by debates about whether the VRA was still necessary. The VRA is and has been one of the most important laws in American history. Aimed at eradicating systematic discrimination against minorities and specifically at securing their voting rights, the VRA enabled the federal government to take affirmative steps toward ensuring racial equality and political fairness. Nonetheless, the renewal and extension of the VRA in July 2006 indicated that the battle to achieve nationwide political fairness was not over.
The Voting Rights Act was signed into law by President Lyndon Johnson on August 6, 1965. The act was passed essentially to enforce the provisions of the Fifteenth Amendment, which states, “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.” Despite the passage of the Fifteenth Amendment, along with the Thirteenth and Fourteenth Amendments to the Constitution, blacks systematically had been denied access to the franchise and the free exercise of their constitutional rights for the better part of a century.
The president’s determination to introduce the VRA was crystallized by the events of February and March 1965. The Reverend Martin Luther King had been arrested in Selma, Alabama. Peaceful protest marches ensued as King and other civil rights workers attempted to organize resistance to the institutionalized system of racial discrimination known as Jim Crow. The peaceful marches were met and dispersed by police violence. Clergy and other marchers were beaten and in some cases killed.
On March 7 marchers seeking to march from Selma to Montgomery were stopped on the Edmund Pettus Bridge leading out of Selma. There the marchers were beaten in another outbreak of police violence. This time, however, the violence was broadcast on national television.
On March 15, 1965, President Johnson spoke to a special joint session of Congress. In that speech he acknowledged that despite the passage of the Fifteenth Amendment black voters had been prevented systematically from exercising the franchise: “Experience has shown that the existing processes of law cannot overcome systematic and ingenious discrimination. No law that we now have on the books—and I have helped to put three of them there—can ensure the right to vote when local officials are determined to deny it” (Johnson 1965).
The key provisions of the VRA were as follows:
- Section 2 of the act essentially restated the Fifteenth Amendment: “No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.”
- Section 4 explicitly forbade the use of literacy tests or other devices to deny citizens access to the franchise or the polling booths.
- Section 5 imposed “preclearance requirements” on any state or political subdivision that as of November 1, 1964, had used literacy tests and in which less than 50 percent of the voting-age population was registered to vote or in which less than 50 percent of registered voters voted in the presidential election of 1964.
In any political subdivision that met those criteria Section 5 required that the government submit any change to a “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964” to the United States District Court for the District of Columbia or the United States Department of Justice for approval. Section 5 thus was designed to prevent surreptitious or invidious attempts by local or state governments to continue to disenfranchise minority voters despite the intent of the VRA.
Several controversies arose as a result of the VRA, and all of them led to Supreme Court litigation. The first dealt with the scope of the act. What actually constituted a “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting”? Local officials who tried to resist the VRA took advantage of that ambiguity to craft subtle but effective practices that would limit the capacity of minorities to vote. As Abigail Thernstrom noted in 1987, “By 1969 public officials in Mississippi and elsewhere had made all too plain their readiness to alter the electoral environment by instituting, for instance, county-wide voting, eliminating the single member districts from which some blacks were likely to get elected” (Thernstrom 1987, p. 4).
In 1969 in Allen v. State Board of Elections the Supreme Court heard challenges to such laws passed by several southern states. The states argued that because the changes had no impact on black voters’ access to the polls, they were not covered by the VRA. However, in striking down those laws, the Supreme Court ruled that the franchise entailed more than mere access to the polls. The challenged laws included the following:
- A 1966 Mississippi law that allowed counties to change the manner in which their boards supervisors were elected. Instead of using districts, they could use at-large elections.
- Another Mississippi law that allowed the boards of education in eleven counties to appoint the superintendent of education (instead of electing the superintendent).
- A Mississippi law that changed the requirements for independent candidates running in general elections.
- A Virginia law that changed the requirements for casting write-in ballots.
In striking down those laws, the Court ruled:
The Voting Rights Act was aimed at the subtle, as well as the obvious, state regulations, which have the effect of denying citizens their right to vote because of their race. Moreover, compatible with the decisions of this Court, the Act gives a broad interpretation to the right to vote, recognizing that voting includes “all action necessary to make a vote effective.” We are convinced that in passing the Voting Rights Act, Congress intended that state enactments such as those involved in the instant cases be subject to the 5 approval requirements. (Allen v. State Board of Elections, 565–566, internal citations omitted)
Thus, the Court expanded the scope and definition of the franchise to protect it from pernicious attempts to constrain its exercise.
Another major controversy arose in 1982. As it originally was written, the VRA could have been interpreted to require plaintiffs to forbid only those electoral arrangements which had been passed with the intent of diluting minority voting power. In 1982 Congress rewrote Section 2 to require only a demonstration that a challenged law had the effect of diluting minority voting strength. Legislative intent did not matter.
In Thornburg v. Gingles (1986) the Supreme Court sustained the new effects standard. Gingles thus placed a great deal of pressure on the states. It led to extensive efforts by the Justice Department to require states to draw legislative and congressional districts in a manner that would allow minority voters to constitute an electoral majority. That practice led to the creation of so-called majority-minority districts with truly bizarre shapes and gave rise to another controversy: If districts drawn to shut minority voters out of politics were unconstitutional, could districts drawn to ensure their chances of election survive constitutional scrutiny?
In Shaw v. Reno (1993) the Court ruled that a redistricting scheme that was “unexplainable” on grounds other than race would violate the equal protection clause of the Fourteenth Amendment. If the record indicated that racial considerations had played a determining role in the construction of a challenged district and if the district’s shape indicated that the legislature had forsaken “traditional districting principles” to such an extent that its outline was “highly irregular,” “bizarre,” and “irrational on its face” (Shaw, 648), the redistricting plan would run afoul of the equal protection clause of the Fourteenth Amendment.
Shaw rewrote the rules of the districting process. Gingles had indicated that if states did not draw districts to enhance minority representational opportunities, they were guilty of vote dilution in violation of Section 2 of the VRA. According to Shaw, if they went too far in drawing majority-minority districts, particularly in states that did not have large demographic concentrations of African American voters, they risked a Fourteenth Amendment challenge.
After Shaw voting rights law was based on a double standard. Districts drawn to harm minority voters were unconstitutional, but districts drawn to help them were also unconstitutional even though it was constitutionally permissible to draw them to help other groups, such as incumbents, urban and rural voters, Democrats and Republicans, and other ethnic groups. In subsequent rulings the Supreme Court resolved that double standard by modifying its stand against racial gerrymandering.
In Miller v. Johnson the Court declared congressional districts in Georgia unconstitutional because the legislative record clearly demonstrated that they had been drawn with the explicit intent of maximizing the number of majority-minority districts. In her concurrence, however, Justice O’Connor indicated that the double standard in Shaw was problematic:
The standard [for assessing the constitutionality of districts] would be no different if a legislature had drawn the boundaries to favor some other ethnic group; certainly the standard does not treat efforts to create majority-minority districts less favorably than similar efforts on behalf of other groups.… Application of the Court’s standard does not throw into doubt the vast majority of the Nation’s 435 congressional districts, where presumably the States have drawn the boundaries in accordance with their customary districting principles. That is so even though race may well have been considered in the redistricting process. (Miller, 928-929, O’Connor, J., concurring)
O’Connor thus acknowledged that factors such as race and ethnicity are part of the redistricting process. But, she said, the Shaw standard at least allowed the Court to police “extreme instances of gerrymandering.”
A majority of the Court finally acknowledged the tensions in its voting rights jurisprudence. In Easley v. Cromartie (2001) the Court declared majority-minority congressional districts in North Carolina constitutional despite their bizarre shapes because they were the product of a multitude of factors only one of which was race. In so doing, the Court set forth a standard of proof that made it easier for states to avert a Shaw challenge while simultaneously upholding the goals of the VRA.
So long as states could demonstrate that some other factor besides race played an important role in the drafting of legislative district lines, they could defend a districting scheme by explaining that race did not “predominate” (Easley, 258). The Court thus drew upon a statement made by Justice O’Connor in Bush v. Vera : “If district lines merely correlate with race because they are drawn on the basis of political affiliation, which correlates with race, there is no racial classification to justify” (Bush v. Vera, 968). Thus, the Court explained that “the Constitution does not place an affirmative obligation upon the legislature to avoid creating districts that turn out to be heavily, even majority, minority. It simply imposes an obligation not to create such districts for predominantly racial, as opposed to political or traditional, districting motivations” (Easley, 248).
Easley allowed courts to look at a racially remedial gerrymander and declare it nothing more than a partisan or incumbent one. By declaring that race had to be the predominant factor in a redistricting plan, the Court enabled states to defend their plans by offering a plausible partisan alternative explanation for their districting decisions. In this respect the states could cloak a racial gerrymander in partisan clothing and move on.
Although the line of cases from Shaw to Cromartie addressed the manner in which states and the Justice Department could remedy claims of vote dilution, the Supreme Court also had to address key issues concerning the preclearance provision in Section 5. Specifically, the Court had to determine the scope and definition of “retrogression.” In Georgia v. Ashcroft (2003) the Supreme Court ruled that a reduction in the number of majority-minority districts in a covered jurisdiction did not necessarily amount to a retrogression in minority voting power. In some cases states could draw so-called minority “influence” districts. In those districts, it was argued, minority candidates could win even though the districts were not composed of a majority of minority voters.
The development of this strategy for enhancing minority voting strength was a reaction to the Shaw line of cases. Scholars such as Sam Hirsch (2002) had demonstrated that minority candidates could win elections in minority influence districts if their campaigns were crafted carefully. Insofar as such districts were not drawn to ensure that minority voters constituted a majority of the population, they did not run afoul of the standard set forth in Shaw. Speaking for the Court, Justice O’Connor stated:
a court should not focus solely on the comparative ability of a minority group to elect a candidate of its choice. While this factor is an important one in the § 5 retrogression inquiry, it cannot be dispositive or exclusive … to maximize the electoral success of a minority group, a State may choose to create a certain number of “safe” districts, in which it is highly likely that minority voters will be able to elect the candidate of their choice. Alternatively, a State may choose to create a greater number of districts in which it is likely—although perhaps not quite as likely as under the benchmark plan— that minority voters will be able to elect candidates of their choice. (Ashcroft, 480)
She concluded: “Section 5 gives States the flexibility to choose one theory of effective representation over the other” (Ashcroft, 482).
In some aspects the decisions in Easley v. Cromartie and Georgia v. Ashcroft represent a great victory and resonate with the spirit of the VRA. They permit the practice of drawing districts to help racial and ethnic minority voters gain representation that has benefited other groups of voters throughout American history. However, they do so in a manner that prevents unabashed attempts to draw electoral districts that are guaranteed to produce a particular result. In this respect they manifest a bizarre irony: The battle to end discrimination against minority voters by gerrymandering electoral districts has been won by giving minorities the same chance as every other political group to gerrymander electoral districts in their favor.
The controversy surrounding ways to define and prevent minority vote dilution and retrogression remains a key focus of the VRA. However, although academic debates about the superiority of majority-minority districts or minority influence districts endure, they demonstrate the positive impact of the VRA. Instead of fighting to protect minority voting rights, scholars and practitioners now debate how best to protect the franchise.
Despite these advances the possibility that some parts of the VRA might have expired in 2007 generated controversy and debate. Studies by many organizations ranging from the American Civil Liberties Union to the National Commission on the Voting Rights Act demonstrated that in many ways many Americans still were unable to exercise the franchise freely.
The renewal of the language provisions manifested the scope and complexity of expanding voting rights protections further. As the election of 2000 and the passage of the Help America Vote Act demonstrated, many obstacles to the truly free exercise of the franchise have continued to exist. They range from making sure that non-English speakers are able to register and vote to ensuring that voting procedures are not confusing and that voting machines function properly.
Thus, although the VRA and the ensuing Supreme Court decisions have resulted in a fairer process of drawing voting districts and a means by which the federal government can be called on to oversee changes in local election laws, the renewal of the nonpermanent provisions of the act in 2007 demonstrates the need to continue policing the electoral process and the renewed national commitment to preserving the integrity of American democracy.
SEE ALSO Gerrymandering;Jim Crow; King, Martin Luther, Jr.; Politics, Black; Politics, Southern; Protest; Race; Racism; Supreme Court, U.S.; Violence
Allen v. State Board of Elections, 393 U.S. 544. 1969. http://caselaw.lp.findlaw.com/cgibin/getcase.pl?court=USvol=393invol=544.
Bush v. Vera, 512 U.S. 952. 1996. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=USvol=517invol=952.
Easley v. Cromartie, 532 U.S. 234. 2001. http://law.onecle.com/ussc/532/532us234.html.
Georgia v. Ashcroft, 539 U.S. 461. 2003. http://caselaw.lp.findlaw.com/cgibin/getcase.pl?navby=casecourt=USvol=539invol=461.
Hirsch, Sam. 2002. Unpacking Page v. Bartels : A Fresh Redistricting Paradigm Emerges in New Jersey. Election Law Journal 1: 7–23.
Johnson, Lyndon B. 1965. Special Message to Congress: The American Promise. March 15. National Archives and Records Administration, Lyndon Baines Johnson Library and Museum, Austin, TX. http://www.lbjlib.utexas.edu/johnson/archives.hom/speeches.hom/650315.asp.
Karlan, Pamela S. 2004. Georgia v. Ashcroft and the Retrogression of Retrogression. Election Law Journal 3: 21–36.
National Commission on the Voting Rights Act. 2006. Protecting Minority Voters: The Voting Rights Act at Work, 1982–2005. Washington DC: Lawyers’ Committee for Civil Rights under Law.
Raskin, Jamin. 1998. The Supreme Court’s Racial Double Standard in Redistricting: Bizarre Jurisprudence, Bizarre Scholarship. Journal of Law and Politics 14: 591–666.
Rush, Mark E. 2006. The Voting Rights Act and Its Discontents. In The Voting Rights Act: Securing the Ballot, ed. Richard M. Valelly, 145–160. Washington, DC: CQ Press.
Shaw v. Reno, 509 U.S. 630. 1993. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=usvol=509invol=630.
Thernstrom, Abigail M. 1987. Whose Votes Count? Affirmative Action and Minority Voting Rights. Cambridge, MA: Harvard University Press.
Thornburg v. Gingles, 478 U.S. 30. 1986. http://supreme.justia.com/us/478/30/.
Valelly, Richard M., ed. 2006. The Voting Rights Act: Securing the Ballot. Washington, DC: Congressional Quarterly.
Voting Rights Act of 1965
Voting Rights Act of 1965
William D. Araiza
Excerpt from the Voting Rights Act of 1965
Section 2: No voting qualification or prerequisite to voting, or ... procedure shall be imposed ... to deny or abridge the right of any citizen of the United States to vote on account of race or color.
Section 5: Whenever a [covered] State ... shall enact ... any voting qualification ... differ ent from that in force ... on November 1, 1964, such State ... may institute an action ... for a declaratory judgment that such qualification ... does not have the purpose and will not have the effect of...denying or abridging the right to vote on account of race or color ... Provided ... that such qualification ... may be enforced ... if [it] has been submitted ... to the Attorney General and the Attorney General has not interposed an objection within sixty days.
The Voting Rights Act of 1965 (VRA) (P. L. 89-110, 79 Stat. 437) was designed to protect and ensure the right to vote that is guaranteed by the Fifteenth Amendment to the United States Constitution. The Fifteenth Amendment, which prohibited racial discrimination in voting, was enacted in the immediate post-Civil War period. Yet as late as the early 1960s the country witnessed systematic efforts to deny the right to vote to racial and ethnic minorities, especially blacks in the South. Southern politicians attempted to prevent blacks from voting by using a variety of devices, including literacy and good character tests that were easily manipulated by poll officials. As a result, blacks participated in voting and political activity in very low numbers in the areas where such devices were employed. The VRA was designed to eliminate the use of these devices as a means of preventing blacks from exercising their right to vote.
FEATURES OF THE ACT
The most important provisions of the VRA are contained in sections 2 and 5. Section 2 prohibits states from establishing voting qualifications or standards in a way that results in a denial of the right to vote on account of race. Section 5 requires states and other jurisdictions with a history of race discrimination in voting to obtain the approval of the United States Department of Justice before changing any law with regard to voting. This provision has become known as the "preclearance" provision because it requires states to obtain the clearance of the Justice Department before changing its voting laws.
The preclearance provision has a wide scope. It includes, for example, the redrawing of electoral districts that occurs after every national census (a population count conducted every ten years), voter qualification rules, and changes in government structure. (Such changes include the decision to change some offices from elective to appointive, or to change a city council from one in which one representative is elected from each district to one in which all representatives run city-wide.) All of these changes have the potential to weaken, or, in the words of the statute, "dilute" the strength of minority voting. To prevent such dilution, the statute requires Justice Department clearance before such changes can be put into effect. If a state concludes that the Justice Department's disapproval of a desired change is unwarranted, the matter is decided by a federal court. The Supreme Court may review these federal court decisions if it so chooses. In its review of several decisions, the Court has interpreted section 2 to prohibit a broad array of government conduct.
Sections 2 and 5 are similar, in that they both seek to combat government practices making it difficult for minorities either to vote or, more generally, to participate effectively in government. Section 5 differs from section 2, though, in that it puts the burden on state and local governments with a history of discrimination to obtain approval for any changes that might possibly have these effects. Section 2, which applies throughout the nation, does not include such a preclearance requirement.
Other important sections of the act forbid the use of literacy and good character tests to determine eligibility for voting and provide for federal officials to register voters and observe elections in certain circumstances.
The constitutional basis for the VRA is Congress' power under section 2 of the Fifteenth Amendment. Section 1 of that Amendment states that "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." Section 2 states that "the Congress shall have the power to enforce [the Amendment] by appropriate legislation." In debating the VRA, Congress uncovered a large number of examples of states violating the Fifteenth Amendment, and determined that guaranteeing (or, in the words of section 2, "enforcing") the rights granted in that amendment justified enactment of the VRA.
CIRCUMSTANCES LEADING TO ADOPTION OF THE ACT
In the late 1950s and early 1960s leaders of the Civil Rights movement realized that race-based voting restrictions severely impeded the political, economic, and social progress of black Americans. Civil rights activists initiated voter registration drives and educational campaigns in the early 1960s to encourage greater black political participation. In the summer of 1964, for example, white college students traveled to the South to assist in voter registration and educational efforts, and civil rights organizations such as the National Association for the Advancement of Colored People (NAACP) and the Southern Christian Leadership Conference (SCLC) spearheaded similar drives. Some whites responded to these campaigns with violence, both against the civil rights leadership, the workers in the civil rights campaigns, and local blacks who expressed sympathy or support for them. This violence, and pressure from the civil rights community, prompted Congress to take action.
President Lyndon B. Johnson, who had become president after the assassination of John F. Kennedy in 1963, made completion of his predecessor's civil rights agenda one of his top priorities and one of the foundations of his Great Society program. Dr. Martin Luther King Jr., the acknowledged leader of the Civil Rights movement, was also a major supporter of the VRA. The civil rights agenda was not limited to the VRA. It also included the Civil Rights Act of 1964, which provided broad guarantees against racial and other discrimination in private employment and federally sponsored activities, and the Fair Housing Act of 1968, which prohibited racial discrimination in the housing market.
The legislative debate leading to the act focused on the seriousness and breadth of states' deprivations of the right to vote. The debate also concerned the appropriateness of federal legislation overseeing states' conduct of their elections. Under the Constitution, the conduct of elections is a matter for state regulation. Opponents of the VRA argued that the VRA was an inappropriate federal interference in state affairs. On the other side, proponents noted that the right to vote was enshrined in the U.S. Constitution, and argued, ultimately successfully, that it was appropriate for the federal government to take steps to safeguard that right.
The debate on the VRA was heavily influenced by current events. The Civil Rights movement was in full swing by the mid-1960s. Southern opposition to that movement, in particular acts of violence and intimidation led both by private parties and by government officials, were national news. Pictures of police using dogs and water cannons on nonviolent protesters appeared prominently on national television, and reports of mob violence against civil rights activists appeared on the front pages of newspapers. All of this persuaded many Americans who had previously been uninformed or apathetic about civil rights issues that strong federal action was necessary.
IMPORTANT COURT INTERPRETATIONS
The constitutionality of the VRA was established in an important 1966 case, South Carolina v. Katzenbach. In that case the Supreme Court held that the VRA was an appropriate use by Congress of its power to "enforce" the Fifteenth Amendment. South Carolina is notable because it inaugurated a period during which the Supreme Court gave a more permissive interpretation to Congress' power to enforce the Fifteenth Amendment. Also in 1966, the Court gave a similarly broad reading to Congress' power to enforce the Fourteenth Amendment in Katzenbach v. Morgan.
In other important cases the Supreme Court interpreted provisions of the VRA itself. For example, in Allen v. State Board of Elections (1969), the Court interpreted section 5's preclearance requirements to apply to any change that had the effect of diluting the voting strength of minorities, rather than merely to changes in laws dealing with the act of voting itself. Vote dilution occurs when a government entity, such as a city government, changes its structure in a way that reduces minority voting strength. In Perkins v. Matthews (1971), for example, the Court held that a city's annexations of surrounding areas had to be precleared under section 5. If the annexed area was primarily occupied by whites, then such annexations might dilute minority voting strength. The result would be a new, larger city with a larger percentage of whites than before, thus weakening minority political power.
Another important electoral practice involves redistricting. States redraw their legislative districts every ten years to take account of population changes reflected in the census. Depending on how those districts are drawn, minority voting strength might be diluted. For example, a black neighborhood might be split up into several districts rather than concentrated in one, with the result that in no one district would black voting power be decisive. In Georgia v. United States (1973), the Court held that state legislative redistricting would also have to be precleared. Today both state legislative and congressional district lines must be precleared in the states subject to section 5.
At other times, the Court has adopted narrower interpretations of the VRA. For example, in Mobile v. Bolden (1980), the Court held that section 2's prohibitions on voter qualification tests that are racially discriminatory included only those tests specifically motivated by a desire to discriminate on the basis of race. The VRA does not apply, the Court said, to those requirements that merely affect blacks and other minorities differently than they affect whites. Two years later, Congress amended the VRA to make clear that it intended to prohibit actions with discriminatory results, not just actions that were intentionally discriminatory.
The VRA was originally written to expire in five years. In 1970 Congress renewed the act for another five years, and in 1975 and subsequent years it was renewed again. Each time, Congress has renewed the act for only a limited period, with the idea that it would reconsider whether the federal intrusions on state electoral processes were still necessary, or even needed strengthening. In each case Congress decided to renew the act. In renewing the act in 1970, Congress indicated its approval of the broad interpretations the Supreme Court gave to the act in cases like Allen.
THE VRA AND EQUAL PROTECTION
In the 1990s the Justice Department's use of the VRA to prevent minority vote dilution came under attack in the Supreme Court. The Justice Department has sometimes insisted that compliance with section 5 requires maximizing minority voter strength. This in turn would require taking race significantly into account when states redraw their legislative and congressional districts. Some legal scholars and political leaders have claimed that the practice of placing voters in particular districts based on their race violates the equal protection clause of the Fourteenth Amendment. This clause prevents states from denying to individuals "the equal protection of the laws" and has long been understood as prohibiting government from classifying individuals on the basis of their race. In Shaw v. Reno (1993) and Miller v. Johnson (1995), the Court suggested that such use of race might violate the equal protection clause if race was the predominant motivating factor in the state's redistricting plan. The Court's suggestion raises questions about how stringently the VRA may be used in the districting context. So far, the Court has not squarely faced those questions.
Section 2 of the VRA has gone a long way toward ending the discriminatory use of voter qualifications tests. Before the VRA these tests were used to deprive blacks and other minorities of their rights to vote. Today it is rare, though still not unknown, for government officials to seek to deprive minority voters of their rights through obvious means such as voter qualification tests. Dilution claims, however, are far more common, given how broadly "voter dilution" is defined. In fact, this loose understanding of the term has the potential to affect almost any structural or electoral change a government may make.
Section 5 has also become extraordinarily important. Congressional district boundaries are redrawn every ten years to correspond with population changes as reflected in the census. In the states subject to section 5 of the VRA, the U.S. Justice Department heavily influences the redrawing of those lines, a practice normally performed by state legislatures. Under section 5, the Justice Department must approve those district lines before they can go into effect to become the new congressional and state legislative boundaries. Redistricting is a hotly contested political issue, because the shape of legislative districts influences how heavily Democratic or Republican the district will be. Thus Justice Department involvement in redistricting has often led to lengthy legal and political conflicts.
Branch, Taylor. Pillar of Fire: America in the King Years 1963–1965. New York: Simon & Schuster, 1998.
Thernstrom, Abigail. Whose Votes Count? Affirmative Action and Minority Voting Rights. Cambridge, MA: Harvard University Press, 1987.
U.S. Commission on Civil Rights. A Citizen's Guide to the Voting Rights Act. Washington, DC: The Commission, 1984.
Williams, Juan. Eyes on the Prize: America's Civil Rights Years 1954–1965. New York: Viking, 1987.
The Great Society
Alfred L. Brophy
In May 1964, President Lyndon B. Johnson delivered a graduation speech at the University of Michigan, which established the idea that the United States should strive for "abundance and liberty for all." He told the graduating students that "Your imagination, your initiative, and your indignation will determine whether we build a society where progress is the servant of our needs, or a society where old values and new visions are buried under unbridled growth. For in your time we have the opportunity to move not only toward the rich society and the powerful society, but upward to the Great Society." The two key elements of that "Great Society" were "an end to poverty and racial injustice."
Johnson focused on equal opportunity and assisting racial minorities and the poor of any race. The Civil Rights Act of 1964 and the Economic Opportunity Act were important early Great Society legislation. They were followed in January 1965, after Johnson's landslide victory in the November 1964 presidential election against Republican Barry Goldwater, with legislation to establish Medicare (for elderly Americans) and Medicaid (for poor Americans), the Voting Rights Act of 1965, and the Immigration Act of 1965. Other legislation included the Housing and Urban Development Act, the Motor Vehicle Traffic Safety Act, the National Endowment for the Humanities, and the Elementary Secondary Education Act, the Higher Education Act, and the Fair Housing Act of 1968.
In the closing months of Johnson's presidency, the war in Vietnam and increasing domestic violence—like the long, hot summer of 1968 and the assassination of Robert Kennedy and Martin Luther King—signaled the unraveling of Johnson's programs. They also signaled the end of the optimism, born of America's triumphs in World War II and the New Deal, in government. The era of Great Society legislation ended in 1968 with the election of President Richard Nixon, although many of its accomplishments continue to this day.
Georgia v. Ashcroft
Before 2003, the sections of the Voting Rights Act dealing with "dilution" of the minority vote were interpreted to mean that any reduction in the percentage of minority voters in a legislative district would result in a reduction of minority voting rights, and so could not be permitted. In the South, this concentration of black voters in particular districts came to result in more black candidates being elected, but fewer Democrats overall winning office, because black voters (who tended to vote Democratic) were excluded from districts with white majorities. In Georgia v. Ashcroft (2003), however, the Supreme Court refined the previous interpretation, ruling that states may consider the overall influence of minority voters, not just their relative percentages of the population, when redrawing district lines. In effect, the reasoning went, minority voters might have more power if they were able to have an influence in many districts. Justice Sandra Day O'Connor, who wrote the majority opinion, stated that it was necessary to take into consideration districts in which minority voters could join coalitions to elect representatives supportive of minority interests, even if minorities did not hold enough votes to elect a minority candidate. "The state may choose," she wrote, "that it is better to risk having fewer minority representatives in order to achieve greater overall representation of a minority group by increasing the number of representatives sympathetic to the interests of minority voters."
Voting Rights Act
Voting Rights Act
The Voting Rights Act of 1965 was created to enable the black population to vote. This right had been denied to blacks in some regions of the South since the end of the Reconstruction Era (1865–77; the period after the American Civil War [1861–65] when the southern states were reorganized and brought back into the Union ). The Fifteenth and Nineteenth Amendments to the Constitution had given black men and black women the right to vote, but violence and intimidation, economic punishments, and unfair voting requirement tests had effectively prevented it. Prior civil rights acts had provided for African American voting rights, but their enforcement often depended on the cooperation of white Southerners who had no intention of complying with them.
African Americans in Selma, Alabama , had long been obstructed from registering to vote by the segregationist (people who wanted to separate blacks and whites) local government. In late 1964, the Southern Christian Leadership Conference (SCLC), a civil rights organization founded by Martin Luther King Jr. (1929–1968), planned an all-out campaign in Selma aimed at winning new federal voting rights legislation. On March 7, 1965—a day that was later named “Bloody Sunday”—peaceful demonstrators began a march from Selma to Montgomery . They were almost immediately confronted by a brutal police attack. Mass arrests followed. The nation watched the violence on the television news. “Bloody Sunday” rallied public and congressional support for the Voting Rights Act that was being promoted by President Lyndon B. Johnson (1908–1973). Congressional passage of the bill was marked by intense controversy, but, in its final form, the measure was overwhelmingly approved.
The 1965 Voting Rights Act applied to states and counties in which a test or other device was used to determine voter eligibility, and where voter turnout for the 1964 presidential election had been less than 50 percent of potentially eligible voters. In those areas, the Act prohibited the use of literacy (ability to read and write) and other racially discriminatory tests. The Act authorized federal examiners to replace local registrars (officials in charge of voting) and to observe voting procedures. It required a voting district or state to get advance federal approval for changes in election laws and voting procedures. The Act also expanded the voting rights of non-English-speaking citizens.
The act's effectiveness
In the immediate aftermath of the act's passage, impressive gains were made by federal authorities; in the first six months, they registered more than 100,000 southern blacks, while local officials, aware of the threat of federal action, added another 200,000. In 1965, some 2 million African Americans were registered to vote in the South; by mid-1970, that figure had jumped to 3.3 million.
Later gains under the act were weaker than the early ones. During the presidential administrations of Richard M. Nixon (1913–1994; served 1969–74) and Gerald Ford (1913–2006; served 1974–77), commitment to the act decreased. Many southern officials resisted the Voting Rights Act, challenging its constitutionality in court and continuing to withhold the ballot from African American voters. They also found ways to weaken the black community's voting power. Using a variety of techniques, including redrawing voting districts to break up black majorities and imposing new restrictions and property qualifications on political candidates, southern politicians made it difficult for black candidates to run for and win office.
The Voting Rights Act has been extended three times since its initial passage. Originally, its targets included Alabama, Georgia, Louisiana, Mississippi, South Carolina, Virginia , parts of North Carolina , and Alaska . In 1970, the ban on literacy tests was expanded nationwide. The act was again extended in 1975, with less southern resistance than in the past. In 1982, the administration of President Ronald Reagan (1911–2004; served 1981–89) fought vigorously against another extension, but even so, it was extended and even amended to address the wide range of strategies designed to get around it.
By 2005, a total of about 9,000 African Americans held elected office in the United States, compared to just 500 in 1965. Although the gains are impressive, African Americans were still underrepresented as elected officials relative to their proportions in the population.
Voting Rights Act of 1965
VOTING RIGHTS ACT OF 1965
The Voting Rights Act of 1965 (42 U.S.C.A. § 1973 et seq.) prohibits the states and their political subdivisions from imposing voting qualifications or prerequisites to voting, or standards, practices, or procedures that deny or curtail the right of a U.S. citizen to vote because of race, color, or membership in a language minority group. A product of the civil rights movement of the 1960s, the Voting Rights Act has proven to be an effective, but controversial, piece of legislation. The act was extended in 1970 and again in 1982, when its provisions were renewed for an additional twenty-five years.
In the early 1960s very few African Americans in the South were allowed to vote. Southern states used literacy tests and physical and economic coercion to prevent African Americans from registering to vote. The state legal system supported these practices, leaving African Americans and other minority groups with few options to challenge voting discrimination. civil rights leaders organized public protests and voter registration drives, but met intense resistance from local authorities.
A 1965 march to Selma, Alabama, by Dr. martin luther king jr. and other civil rights supporters to demand voting rights led to police violence and the murder of several marchers. The Selma violence galvanized voting rights supporters
in Congress. President lyndon b. johnson responded by introducing the Voting Rights Act, the toughest civil rights law in one hundred years. Congress enacted the measure five months later.
Congress based its authority to regulate voting practices on the fifteenth amendment to the U.S. Constitution, which gives all citizens the right to vote regardless of race, color, or previous condition of servitude. The passage of the act ended the traditional practice of allowing states to handle all matters concerning voting and elections. The Voting Rights Act is premised on the active participation of the U.S. justice department and the federal courts. Southern states challenged the legislation as a dangerous attack on states' rights, but the U.S. Supreme Court, in South Carolina v. Katzenbach, 383 U.S. 301, 86 S. Ct. 803, 15 L. Ed. 2d 769 (1966), upheld the constitutionality of the act, despite the fact that the law was, in the words of Chief Justice earl warren, "inventive."
The original act was directed at seven southern states—Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia—which had used poll taxes, literacy tests, and other devices to obstruct registration by African Americans.
Under the law, a federal court can appoint federal examiners, who are authorized to place qualified persons on the list of eligible voters. The act waived accumulated poll taxes and abolished literacy tests and similar devices in those areas to which the statute applied. It required that bilingual election materials be made available in areas where more than five percent of the citizens are members of a single-language minority.
The act also required the seven states to obtain "preclearance" from the Justice Department or the U.S. District Court for the District of Columbia before making changes in the electoral system. The state has the burden of proving that the proposed changes do not have the purpose or effect of "denying or abridging the right to vote on account of race or color." The Supreme Court has liberally construed this provision to require approval of even inconsequential alterations. As a result, relocation of polling sites, changes in ballot forms, reapportionment of election districts, municipal annexations, and revision of rules pertaining to the qualifications of candidates and the appointive or elective nature of the office fall within the ambit of federal supervision. If a modification of the election law, such as redistricting, has the purpose or effect of denying or curtailing the right to vote on the basis of race, it may be held to violate the Voting Rights Act. The 1982 extension of the act revised this provision, extending it to all states. This means that a voter may challenge a voting practice or procedure on the ground that it is racially discriminatory either by intent or by effect.
The most controversial issue for the courts has been whether voting districts can be redrawn to facilitate the election of racial minorities. The lower federal courts had approved such reapportionment plans, but the Supreme Court dealt a severe blow to these attempts in shaw v. hunt, 517 U.S. 899, 116 S. Ct. 1894, 135 L. Ed. 2d 207 (1996). In Shaw the Court ruled that the redrawing of a North Carolina congressional district into a "bizarrelooking" shape so as to include a majority of African Americans could not be justified by the Voting Rights Act, because it violated the equal protection clause of the fourteenth amendment.
The Voting Rights Act has proven effective in breaking down discriminatory barriers to voting. Enforcement of the act in the South resulted in substantially higher levels of voter registration among African Americans. Many politicians who formerly made overt appeals to white supremacy tempered their racist rhetoric to draw support from new black voters. In addition, many African Americans have been elected to public office in areas where whites had ruled exclusively.
"The Future of Majority-Minority Districts in Light of Declining Racially Polarized Voting." 2003. Harvard Law Review 116 (May).
Landsberg, Brian K. 2003. "Sumter County, Alabama and the Origins of the Voting Rights Act." Alabama Law Review 54 (spring).
Laney, Garrine P. 2003. The Voting Rights Act of 1965: Historical Background and Current Issues. New York: Nova Science.
Voting Rights Act of 1965
VOTING RIGHTS ACT OF 1965
VOTING RIGHTS ACT OF 1965 (VRA) abolished a set of tactics that had prevented most African Americans in the South from voting since the beginning of the twentieth century. The VRA also established a variety of oversight mechanisms that gave the law the teeth absent from the Civil Rights Acts passed in 1957, 1960, and 1964. The provisions included the preclearance of any changes in state and local election laws with the federal government (section 5), authorization of federal "registrars" who would make sure that blacks were being allowed to register (sections 6 and 7), and provision for federal observers who would oversee elections (section 8).
By 1964, 43.3 percent of voting-age blacks in the South were registered to vote, up from only 3 percent in 1940. However, in Alabama, Georgia, Mississippi, North Carolina, and South Carolina, black registration was only 22.5 percent. Continued resistance in these states, along with the violence against peaceful voting rights demonstrators in Selma, Alabama, early in 1965, galvanized national public opinion in favor of the VRA.
President Lyndon Johnson signed the VRA into law on 6 August 1965. The positive effects were immediate and substantial; within two years, black registration in Mississippi increased from 6.7 percent to 59.8 percent, and in Alabama it went from 19.3 percent to 51.6 percent. The impact on black officeholders was even more dramatic. Only seventy-two blacks served in elective office in the South in 1965. By 1985 there were 143 blacks in state houses (10.8 percent of the total), 33 in state senates (7.8 percent), 425 on county councils (5.9 percent), and 1,330 on city councils (5.6 percent).
Many states actively resisted the growing influence of black voters. Initial legal challenges to the constitutionality of the VRA were rejected by the Supreme Court in South Carolina v. Katzenbach (1966). Other tactics were more invidious. Racial gerrymanders, at-large elections, prohibition of "single-shot" voting in multimember districts, majority runoff provisions, and impediments to voter registration were used widely throughout the South. In a landmark ruling in Allen v. Board of Election (1969), the Supreme Court gave the Justice Department the ability to challenge these practices under the section 5 pre-clearance provision of the VRA. Ruling that the right to vote encompassed the entire electoral process, not simply the acts of registering or casting a ballot, the Court significantly expanded the reach of the VRA. In 1975, section 4 was expanded to include language minorities in Texas, Alaska, Arizona, and parts of several other states.
The most important of the VRA amendments, passed in 1982, extended key provisions of the law for twenty-five years and overturned City of Mobile v. Bolden (1980). The Bolden case had required that plaintiffs demonstrate the intent to discriminate rather than discriminatory effects, which made it almost impossible to prove a vote dilution claim. The 1982 VRA amendments restored the pre-Bolden standard of proof by amending section 2 to prohibit any voting procedure that results in protected classes having "less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." This amendment was the impetus behind the racial redistricting of the early 1990s, which was subsequently challenged in a series of court cases, starting with Shaw v. Reno (1993). While this area of the law is in flux, the VRA has remained the single most important contribution to minority voting rights in U.S. history. The VRA is up for renewal in 2007. The outcome of that legislative process will determine the direction of voting rights for the next generation.
Kousser, J. Morgan. Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction. Chapel Hill: University of North Carolina Press, 1999.