Voting Rights Act of 1965
Voting Rights Act of 1965
The Voting Rights Act of 1965 is generally considered to be one of the most significant pieces of federal civil rights legislation ever passed by the United States Congress. The Act has helped African Americans to exercise their right to vote and engage in political participation, overcoming almost a century of poll taxes, literacy tests, intimidation, and violence that served as obstacles to the Fifteenth Amendment’s guarantee of a right to vote throughout the South. Though still contested on various fronts, the legislation has changed the American political landscape in significant ways, affecting small town and city governments as well as Congress.
Many historians and political scientists view the vote as the most important form of conventional political participation, and American civil rights leaders thought that the franchise was the most accessible and effective means of advancing the struggle for racial equality. According to James Button, in Blacks and Social Change: Impact of the Civil Rights Movement in Southern Communities (1989), “the assumption was that voting rights would pave the way for all other changes, since the franchise is the normal method by which demands of citizens are fulfilled” (p. 5). Many expected that through electing blacks and moderate whites to office, progress in the political realm would also enable African Americans to make important gains in areas such as education, employment, housing, and public services. Moreover, it was believed that the vote would have both a symbolic and practical effect on democratic practices, because it would provide a sense of viable citizenship and improved self-esteem. Finally, a reliance on federal rights and intervention would not only provide leverage to bargain over state and local resources, it would also insulate blacks from state-sanctioned or condoned violence and terror.
Passed as one of the Reconstruction amendments following the Civil War, the Fifteenth Amendment provides 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.” Each of these amendments also granted Congress the power to enforce the amendments by appropriate legislation. However, after the Hayes-Tilden Compromise of 1877, blacks were effectively disenfranchised through an interlocking system of discriminatory laws and widespread violence. In 1890, for example, Mississippi held a convention to write a new constitution. The spirit of the convention was captured by one white leader, who exclaimed, “We came here to exclude the Negro, from voting.”
Under this new constitution, voters in Mississippi had to pay a poll tax two years before an election. Blacks at the bottom of the socioeconomic scale rarely had the funds to pay the tax, however. In addition, the state required all voters to pass a literacy test, though 60 percent of black men could not read at the time. What is worse, clerks, who were always white, would require blacks to interpret the most difficult passages of the test, while whites were routinely tested on uncomplicated passages. In 1898, Louisiana introduced a new device into its constitution, the “grandfather clause,” which allowed anyone to register whose “grandfather” was qualified to vote before the Civil War. This benefited only whites, of course, because only white citizens could vote before the Civil War. In 1902, Mississippi passed a law that made political parties private organizations outside the authority of the Fifteenth Amendment. Because whoever won the Democratic primary almost always won the general election, this permitted Democratic parties in Southern states to openly exclude blacks from membership in the only party that mattered in the South. This voting regime was referred to as the white primary. Another method used to prevent African-Americans from voting was felony disenfranchisement, or withholding the right to vote from persons convicted of felony offenses. Several Southern states enacted felon disenfranchisement laws and carefully selected “disenfranchising crimes” to disqualify a disproportionate number of black voters.
The white primary, the grandfather clause, the poll tax, the literacy test, and felon disenfranchisement are simply the most well-known methods of disenfranchisement. Other inventive methods included transferring the power to determine voter qualifications to “private,” all-white political clubs, giving newly enfranchised blacks only two weeks to register, and property ownership requirements. As late as 1940, as a direct result of these interlocking discriminatory laws and schemes, only 35 percent of blacks were registered to vote in the confederate states, with only 1 percent being registered in Mississippi. It was not until 1944, in the Supreme Court case of Smith v. Allwright, that the “white primary” was effectively struck down. The poll tax was not struck down until 1966, in Harper v. Virginia Board of Elections.
The activism of the civil rights movement was of central importance in assuring the right to vote. During the 1960s, direct action protests, marches, and sit-ins emerged as major instruments of political change. Indeed, during the summer of 1964, known as “Freedom Summer,” thousands of civil rights activists conducted an intensive voter-registration campaign in the Southern states. The activists focused on Mississippi, because in 1962 only 6.7 percent of African Americans in the state were registered voters, the lowest percentage in the nation.
The activities of the civil rights workers were met with threats, protests, and brutal violence. In June 1965, for example, three young civil rights workers—James Chaney (an African American) and two white co-workers, Andrew Goodman and Michael Schwerner—were murdered near Philadelphia, Mississippi. Earlier, in March 1965, more than 600 peaceful civil rights marchers were beaten by Alabama state troopers and local sheriff’s officers as they crossed the Edmund Pettus Bridge in Selma on their way to Montgomery. These incidents and others sparked national outrage and helped generate support for voting-rights enforcement. The national attention helped to spur President Lyndon B. Johnson to urge Congress to pass strong voting-rights legislation, which became the Voting Rights Act that was signed by President Johnson on August 6, 1965.
The Voting Rights Act generally prohibits the denial or abridgement of the right to vote because of one’s race or color through the imposition of voting qualifications or prerequisites. Sections 5 and 2 of the act have generated the most controversy. Section 5 provides for extensive federal oversight and intervention to assure compliance, requiring federal approval, or “preclearance,” of changes in voting procedures in areas with a history of discrimination (primarily, but not exclusively, Southern states and subdivisions). Section 2 prohibits any “voting qualification … which results in a denial … of the right … to vote on account of race or color.” It assures that minority votes will not be diluted, or submerged within majority white districts, in ways that deny minority voters “an equal opportunity to participate in the electoral
process and to elect representatives of their choice” (Thornburg v. Gingles, 478 U.S. 30 ).
Additionally, the Act was amended in 1975 to prohibit voting qualifications that would deny the right of any citizen to vote because he or she is a member of a language minority. As a result, covered states and political subdivisions must now supply bilingual or multilingual assistance or other materials or information relating to the electoral process. Importantly, the preclearance provisions of Section 5 and the protections for language minorities must be renewed periodically by Congress. Civil rights groups expect opponents will vigorously contest renewal when the issue is next before Congress in 2007.
In interpreting the Voting Rights Acts, courts have focused predominately on two issues: whether various voting procedures deny minority voters access to the ballot, and whether various political representation plans dilute minority votes to the point that members of minority groups cannot elect the candidate of their choice.
In 1980, in City of Mobile v. Bolden, a challenge to the city’s at-large voting scheme, the Supreme Court held that Section 2 of the act would not afford relief in vote-dilution cases unless there was proof of intentional discrimination. But it was virtually impossible to provide such proof, and vote-dilution claims came to a virtual standstill after this decision. However, in 1982 Congress not only extended Section 5 for twenty-five years, it also amended Section 2 to prohibit discriminatory effects even in the absence of intent.
In 1986, in Thornburg v. Gingles, the Supreme Court construed the amended Section 2 for the first time. In a case involving a legislative redistricting plan of multimember districts in North Carolina, the Court held that minority plaintiffs can successfully establish a vote-dilution claim if they show that their community is sufficiently large and geographically compact enough to make up a majority in a single member district, that the group is politically cohesive, and that the white majority’s bloc voting will defeat the minority candidate. After Thornburg v. Gingles, and throughout the 1980s, black voters were able to press for black majority districts, and, candidates of their choice, who were usually black, were consequently voted into office.
However, with the decision in Shaw v. Reno (1993), the Supreme Court announced a new voting rights jurisprudence based on color-blindness. In the case, white plaintiffs challenged a North Carolina redistricting plan on the grounds that majority-black district lines deliberately segregated voters into separate districts on the basis of race, violating their constitutional right to participate in a “color-blind” electoral process. Justice Sandra Day O’sConnor, writing for the 5-4 majority, found that the district was so bizarrely drawn that it could not be understood as anything other than an effort to separate voters into different districts on the basis of race. Such a district, according to O’sConnor, reinforced racial stereotypes and threatened to undermine the U.S. system of representational democracy by signaling to elected officials that they represented a particular racial group rather than their constituency as a whole. Shaw broke new ground, evidencing a judicial hostility to race based districting to empower blacks and to protect them from illegal gerrymandering and vote dilution.
Yet in spite of these cases, race conscious redistricting per se is not unconstitutional, although it is now weighed against the normative interests of rights that inhere in individuals. The Supreme Court thus set the stage for individualized color blindness to triumph over groupbased race consciousness. In the context of vote dilution, this is a peculiar jurisprudence because, as Chandler Davidson (1984) observes, vote dilution is a racialized group phenomenon: “It occurs because the propensity of an identifiable group to vote as a bloc waters down the voting strength of another identifiable group… . [O]ne individual acting alone could not dilute the vote of another individual or of a group of individuals.”
After the Shaw line of cases, increased attention has been paid to alternatives such as influence districts, cumulative voting, and proportional representation. Out of necessity, perhaps, the next chapters in the struggle for political participation by African Americans and other ethnic minorities may focus on these approaches.
Bell, Derrick. 2004. Race, Racism and American Law, 5th ed. New York: Aspen Publishers.
Davidson, Chandler, ed. 1984. Minority Vote Dilution. Washington, DC: Howard University Press.
Grofman, Bernard, ed. 1998. Race and Redistricting in the 1990s. New York: Agathon Press.
Issacharoff, Samuel, Pamela S. Karlan, and Richard H. Pildes. 2001. The Law of Democracy: Legal Structure of the Political Process, 2nd ed. Westbury, NY: Foundation Press.
Keyssar, Alexander. 2000. The Right to Vote: The Contested History of Democracy in the United States. NY: Basic Books.
John O. Calmore