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The Most Fundamental Right: Contrasting Perspectives on the Voting Rights Act

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Passed in 1965 during the height of the Civil Rights movement, the Voting Rights Act (VRA) changed the face of the American electorate, dramatically increasing minority voting, especially in the South. While portions of the Act are permanent, certain provisions were set to expire in 2007. Reauthorization of these provisions passed by a wide margin in the House, and unanimously in the Senate, but the lopsided tally hid a deep and growing conflict. The Most Fundamental Right is an effort to understand the debate over the Act and its role in contemporary American democracy. Is the VRA the cornerstone of civil rights law that prevents unfair voting practices, or is it an anachronism that no longer serves American democracy? Divided into three sections, the book utilizes a point/counterpoint approach. Section 1 explains the legal and political context of the Act, providing important background for what follows; Section 2 pairs three debates concerning specific provisions or applications of the Act; while Section 3 offers commentaries on the previous chapters from attorneys with widely divergent viewpoints.

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1 Meaningful Votes

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The debate over minority voting rights began in earnest the night of April 11, 1865. General Robert E. Lee had surrendered the Army of Northern Virginia two days earlier, and the end of the Civil War was in sight. Washington, D. C., was in a state of exultation, and a boisterous crowd of citizens gathered below a window of the White House, demanding that the president say a few words. Lincoln came to the window and, reading by candlelight, explained his vision for a postwar nation. Among his ideas was a proposal to give some blacks, especially those who had fought in the war, the right to vote. Among the listeners in the crowd was John Wilkes Booth. He muttered to his friend, “That means nigger citizenship. That’s the last speech he’ll ever make.”1

In the aftermath of the Civil War and Lincoln’s assassination, the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution were adopted. The Fifteenth Amendment, which became part of the Constitution in 1870, reads, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. The Congress shall have power to enforce this article by appropriate legislation.” The debate over the Fifteenth Amendment was contentious; southern states argued that it interfered with states rights. But after the amendment was adopted, the New York Times editorialized that the amendment would “put an end to further agitation of the subject.”2

 

2 The Constitutional Foundations of the “Preclearance” Process: How Section 5 of the Voting Rights Act Was Enforced, 1965–2005

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In July 2006, Congress adopted a revision of the 1965 Voting Rights Act that reauthorized the “preclearance” requirements set forth in Section 5 for another twenty-five years and amended the legal standards to be applied in its enforcement, restoring the standards for assessing the purpose and effect of voting changes that had been altered by two recent Supreme Court decisions.1 Section 5 is often regarded as one of the act’s two most powerful provisions.2 In the preclearance process jurisdictions covered by Section 5, for the most part states of the former Confederacy, must obtain federal approval of voting changes, either from a three-judge panel in the District of Columbia or from the Department of Justice, before these changes become legally enforceable. Approval requires proof by the jurisdiction that the change “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.”3 Shortly after its adoption the Supreme Court ruled that Section 5, like the rest of the act, was constitutional. “Congress concluded that the unsuccessful remedies which it had prescribed in the past would have to be replaced by sterner and more elaborate measures,” wrote Chief Justice Earl Warren.4 Twice since then the Court has upheld the constitutionality of Section 5, as amended.5

 

3 Influence District and the Courts: A Concept in Need of Clarity

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The concept of “influence district” is referenced frequently in discussions of minority voting rights and representational districting. An influence district is said to be a district in which voters constituting a cohesive quantitative minority of voters cannot elect a representative of their choice if their choice is a member of their own group, but can still be expected, given their level of presence in the district, to influence the legislative behavior of the person who is elected to represent the district. Theoretically the presence of any group satisfying these criteria could be the basis for calling a district an influence district for that group, but in application the concept has been applied almost exclusively to districts in which the group is a minority group protected by the Voting Rights Act (VRA), in particular African Americans and Latinos.1

Influence districts are one of three types of districts recognized by the United States Supreme Court in which minority voters do not constitute a majority of the voting age population. The others are “coalition districts” and “crossover districts.” In these types of districts, minority voters do have a reasonable opportunity to elect representatives from within their group based on predictable levels of support for those candidates from other voters. In the case of coalition districts, the other voters are members of other protected minorities; in the case of crossover districts they are typically white or Anglos voters.2 Influence districts, however, are districts “in which minority candidates do not win, but minority voters can play a significant role in electing candidates who will be sympathetic to their interests.”3

 

4 The Bull Connor Is Dead Myth: Or Why We Need Strong, Effectively Enforced Voting Rights Laws

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Prior to passage of the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006,1 which extended the special preclearance provisions of Section 5 of the act, opponents of the legislation frequently said, “Bull Connor is dead. We don’t need Section 5 anymore.” Edward Blum, a Visiting Fellow of the American Enterprise Institute, made that argument in his testimony in opposition to the bill before the House of Representatives on October 25, 2005. Quoting a recent law review article that said “Bull Connor is dead,” he added, “And so is every Jim Crow–era segregationist intent on keeping blacks from the polls.”2

Bull Connor was the infamous chief of police of Birmingham, Alabama, who turned attack dogs and fire hoses on peaceful African American civil rights demonstrators during the 1960s. With Bull Connor’s death, Blum and others said or implied, all racial prejudice, bias, division, and discrimination also died, and with it the need for federal supervision of voting changes in jurisdictions (most of them in the South) that had traditionally denied racial minorities the right to vote.

 

5 Bull Connor Is Long Dead: Let’s Move On

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Over time, the Voting Rights Act has evolved into one of the most ambitious legislative efforts in the world to define the appropriate balance between the political representation of majorities and minorities in the design of democratic institutions.

RICHARD H. PILDES, PROFESSOR OF
LAW, NEW YORK UNIVERSITY

In January 2009 Barack Obama became the first black leader of the free world, winner of an election in which his race was clearly no barrier, and may well have been an advantage. He won a larger share of the white vote than the previous two nominees of his party, and turnout for African Americans ages eighteen to forty-four was higher than that for whites.1 President Obama’s victory was unmistakably the end of an era and the welcome beginning of a new one. Whatever one thinks of his politics, his stunning success is a historic turning point. Integration was the aim of the civil rights movement in the 1950s and much of the 1960s, and, by the ultimate test, American politics is now integrated. Blacks have been a major force in American politics for decades – and now they have reached its highest peak.

 

6 The Voting Rights Act in South Dakota: One Litigator’s Perspective on Reauthorization

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South Dakota received relatively little attention in the debates over reauthorization of the Voting Rights Act. The state is hardly mentioned in the legislative history of the 2006 reauthorization. It got not a word in the Supreme Court’s opinion upholding that reauthorization.1 Few people, including many voting-rights advocates, are even aware that the state was affected by the reauthorization. South Dakota is not one of the seven states originally covered by the special provisions of the Voting Rights Act,2 but it is a prime example of the need for continued – and expanded – coverage.

In the seven years preceding Congress’s decision to reauthorize the special provisions for another twenty-five years, Native American3 voters brought eight voting rights cases challenging virtually every level of government in the state.4 Together, those cases and the volumes of evidence they generated offer a compelling demonstration of the present-day impact of the Voting Rights Act and the continuing need for close federal oversight of state election processes. The cases also suggest that Congress may not have gone far enough to protect minority voters from the kinds of invidious voting discrimination that they face today.

 

7 Realistic Expectations: South Dakota’s Experience with the Voting Rights Act

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For thirteen years, from 1989 through 2002, I served as the election supervisor for the state of South Dakota. In 2002 I was elected secretary of state in a three-way race with 56 percent of the vote. In 2006 I was unopposed for re-election, which was the first time in the history of South Dakota that a candidate for secretary of state was unopposed. My involvement in election administration ended in 2011 when term limits prevented me from running for re-election. I mention these facts only to establish with the reader my long-term and respected involvement in administering elections in South Dakota.

Native Americans are the largest minority population in South Dakota. The 2010 census reported that 8.8 percent of our population was American Indian. Of South Dakota’s 814,180 residents, 71,817 reported being full American Indian. An additional 10,229 residents report some American Indian racial background.1

Approximately one-third of the time I spent on election-related responsibilities as secretary of state was devoted to Native American voter needs. Some of that time involved compliance with the temporary provisions of the Voting Rights Act such as Section 5 (preclearance) and Section 203 (minority-language provisions). Significant amounts of time were involved defending the state in ACLU-inspired lawsuits involving Native American voting issues.

 

8 The Continuing Need for the Language-Assistance Provisions of the Voting Rights Act

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The bilingual election requirements in the Voting Rights Act (“VRA” or “Act”) are straightforward.1 A permanent provision in the 1965 Act, Section 4(e), requires that Spanish-speaking Puerto Rican voters be provided with voting materials and assistance in their native language.2 The Act’s temporary language-assistance provisions, including Section 203, help millions of non-English-speaking voting-age U.S. citizens overcome language barriers to political participation.3 The requirements apply to four language groups: Alaska Natives; American Indians; Asian Americans; and persons of Spanish heritage and the distinct languages and dialects within those groups.4 Covered jurisdictions must provide written voting materials in the covered language unless it is oral or unwritten, or if it is an Alaska Native or American Indian language that is “historically unwritten.”5 “Voting materials” are defined as “registration or voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots.”6

 

9 Policy and Constitutional Objections to Section 203 of the Voting Rights Act

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This chapter discusses Section 203 of the Voting Rights Act.1 Section 203 requires some jurisdictions to print ballots and offer election-related materials in foreign languages. As a constitutional matter, this provision raises serious federalism concerns and equally serious concerns about Congress exceeding its authority to enforce the right to vote regardless of race. Its constitutionality aside, this provision is also objectionable on a variety of policy grounds.

In August 2006, President George W. Bush signed into law Congress’s amended reauthorization of the Voting Rights Act, which, among other things, extended Section 2032 of the Voting Rights Act for another twenty-five years. Though it and other provisions did not expire for another year, their reauthorization was a priority for the 109th Congress. Congress appeared to recognize the need for a strong documentary record justifying the reauthorization of these provisions. But the hearings in the House stand out for their one-sidedness, with few witnesses suggesting any policy or legal doubt for reauthorization. The hearings in the Senate included more witnesses expressing these policy and legal doubts. Ultimately, however, Congress chose to adopt without revision the bill as reported by the House Judiciary Committee.3 The refusal to adopt even modest changes to the structure of the reauthorization and the desire to secure a reauthorization one year prior to expiration suggest that while Congress went through the motions of fulfilling the doctrinal requirement of demonstrating an ongoing pattern of discrimination to justify reauthorization, substantively its deliberative process and constitutional obligations gave way to political expediency.

 

10 After Namudno: The Shape of Future Litigation

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The most significant legal challenge in nearly three decades to Section 5 of the Voting Rights Act (VRA), Northwest Austin Municipal Utility District Number One v. Holder, 129 S.Ct. 2504 (2009) (“NAMUDNO”), was decided by the Supreme Court on June 22, 2009. In an 8-1 opinion, the justices overturned a lower court decision that had denied a small Travis County, Texas, suburban jurisdiction from seeking a “bailout” from the “preclearance” provision of the act. But it is what the justices did not do – strike down the act as unconstitutional – that matters most for the critics and defenders of this provision. Some have speculated that it is only a matter of time before the constitutional issue once again presents itself to the High Court, while others believe the issue has been dodged indefinitely. Who is right?

Some background on the case will be useful for understanding the court’s opinion and what is likely to happen next. The 1965 Voting Rights Act was, as the Supreme Court recognized in this opinion, a “historic accomplishment” designed to end the official governmental barriers to voting that blacks faced in the Deep South by eliminating any type of literacy test, providing federal voting registrars, and criminalizing harassment of black voters. These objectives were enforced through two provisions: Section 4(b), which pinpointed the states and jurisdictions where black disenfranchisement was the most pernicious, and Section 5, the “preclearance” requirement, which was to end the never-ending gamesmanship by southern election officials that was used to prevent blacks from registering to vote.

 

11 Looking Backward to and Forward from the 2006 Voting Rights Act Reauthorization

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In the America promised by our founders, every citizen is somebody, and every generation has a responsibility to add its own chapter to the unfolding story of freedom. In the four decades since the Voting Rights Act was first passed, we’ve made progress toward equality, yet the work for a more perfect union is never ending.

PRESIDENT GEORGE BUSH, WHITE HOUSE STATEMENT
AT THE VOTING RIGHTS ACT REAUTHORIZATION
SIGNING CEREMONY
, JULY 27, 2006

We shouldn’t forget that better is not good enough.

SENATOR BARACK OBAMA, 42ND COMMEMORATION OF
BLOODY SUNDAY, SELMA, ALABAMA, MARCH 4, 2007

How much progress is enough?1 Is voting discrimination tolerable in our democracy, and, when it occurs, how is it best remedied? As the chapters in this book make clear, these were the core questions that animated the 2006 reauthorization of key provisions of the Voting Rights Act of 1965 (“VRA”) and that persist in its wake.2 They are not small questions. The VRA is recognized not only as one of the most important civil rights laws ever passed, but also as one of the most important laws of any kind in the history of the United States. It is a rare statute, which merges our nation’s past, present, and future; it bridges the cross-currents of the ugliest chapters of yesterday, today’s challenges, and our aspirations for tomorrow. A survey of the history of the right to vote in America reveals just how difficult it has been to reach this stage in our progress. There was a period in which the Supreme Court severely undermined, if not essentially foreclosed, the possibility of voting equality.3 For a long period Congress failed to confront flagrant and violent voting discrimination,4 followed by belated responses that proved inadequate to meet the scale of the problem. Supported by a well-documented history of voting discrimination and enacted as a result of courageous resistance to entrenched discrimination, the Voting Rights Act drastically altered the pattern of exclusion. Although the act’s special enforcement provisions have been extended four times, these provisions, which are central aspects of the VRA, continue to generate substantial debate, as the chapters in this book make clear.

 

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