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

Edited by Daniel McCool Indiana University Press ePub

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

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

Edited by Daniel McCool Indiana University Press ePub

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.

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

Edited by Daniel McCool Indiana University Press ePub

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.

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1 Meaningful Votes

Edited by Daniel McCool Indiana University Press ePub

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

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

Edited by Daniel McCool Indiana University Press ePub

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

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