New Fight for Voting Rights
The signs of segregation were ubiquitous when John Lewis was growing up on his family’s farm in Pike County, Ala. Whether they hung over separate drinking fountains, washrooms, restaurant entrances or other public facilities, they always read the same: “white” and “colored.”
“I would ask my parents and grandparents, ‘Why segregation?’ ” recalls Lewis, now 65. “They would say, ‘That’s just the way it is. Don’t get out of line. Don’t get in the way.’ ”
Lewis didn’t listen to his elders, though. He got in the way. Today he sits in the U.S. House of Representatives, where he represents Georgia’s Fifth Congressional District, which covers Atlanta and parts of surrounding communities. Lewis’ presence on Capitol Hill is due in no small part to the Voting Rights Act of 1965. As a young man, Lewis played a pivotal role in securing passage of the act. The law enforces the 15th Amendment, ratified in 1870 to extend the franchise to slaves freed by the Civil War.
But as advocates for minority rights celebrated the landmark legislation’s 40th anniversary last summer, they looked ahead to 2007, when key provisions will expire unless Congress reauthorizes them.
“It was good and necessary in 1965, and it is good and necessary today,” says Lewis, a Democrat first elected to the House in 1986. “It will be good and necessary for years to come.”
Under the Voting Rights Act, minority participation has increased in all phases of the electoral process, from registration and turnout to running for and winning office.
But though renewal is expected to receive overwhelming bipartisan support in Congress, the U.S. Supreme Court ultimately will decide the act’s future. It faces a less certain fate there.
The court has joined with others in hailing the law as the most important piece of civil rights legislation. But since lawmakers last reauthorized it in 1982, the court with Chief Justice William H. Rehnquist at the helm embarked on a long road of decisions favoring states’ rights over the power of the federal government.
The Rehnquist court’s view of federalism could carry heavy weight as precedent as some states seek to escape strict conditions the Voting Rights Act has placed on all parts of their electoral systems. At the same time, the court has demanded ever more exacting evidence to support the need for civil rights statutes in general as the justices apply the highest level of constitutional scrutiny to them.
At the least, Voting Rights Act proponents foresee little change under new Chief Justice John G. Roberts Jr. and associate justice nominee Samuel A. Alito Jr., who is expected to appear before the Senate Judiciary Committee for confirmation hearings this month.
At the worst, they see a jarring shift to the right. Before his confirmation in September, Roberts encountered vehement resistance from voting rights advocates for his memorandums and other writings on the 1982 renewal. As a freshly minted lawyer in the Reagan administration, Roberts tried to justify the administration’s initial opposition to the House version. The House overruled a Supreme Court decision requiring some plaintiffs to prove not only discriminatory effects of voting rights violations, but discriminatory intent, which can be difficult if not nearly impossible. President Reagan eventually relented and signed the measure into law.
The faces of racism and illegal discrimination also have changed over the years. But though they have become less pronounced, civil rights leaders say bigotry and discrimination remain pervasive.
In the classic example, a jurisdiction—a school board, perhaps—may attempt to weaken minority voting strength by switching from single-member districts to at-large elections. Because districts are more likely to concentrate minority populations, those groups often have decent shots at electing one of their own. But tossing all candidates into an at-large system can dilute minority voting strength and significantly reduce their preferred candidates’ chances of success. So voting rights advocates are looking past the almost facile political act of congressional renewal. Instead, they are concentrating on the more formidable task of documenting discrimination since 1982 with solid evidence to repel constitutional attacks.
Looking far beyond 2007, the Census Bureau predicts that by 2050 the United States will become a nation with no single racial majority. Then the questions turn to the act’s continued viability and whose rights it is supposed to protect as the historically disadvantaged minorities it targets increase in size. But, supporters say, neither today’s federal judiciary nor Congress can fully understand the act’s significance without first revisiting its history.
the civil rights movement and the opposition gathered momentum in the decade before the Voting Rights Act entered the picture.
A unanimous Supreme Court already had opened the schoolhouse doors to desegregation with the milestone decision in Brown v. Board of Education, holding that “separate educational facilities are inherently unequal.” Activist Rosa Parks already had refused to surrender her seat to a white passenger on a bus in Montgomery, Ala. Martin Luther King Jr. already had issued his clarion call to action in his “Letter from Birmingham Jail,” followed by his “I Have a Dream” speech to a crowd of 200,000 from the steps of the Lincoln Memorial during the 1963 march on Washington.
John Lewis already had been there, too. Just 23 at the time, he was one of the primary organizers and a keynote speaker at the march. He was one of the founders and a chairman of the Student Nonviolent Coordinating Committee, which was instrumental in enlisting students in the movement, including attempts to register black voters.
Lewis fondly remembers his friends and mentors from that era, including Parks and King. “Dr. King was 11 years older than me,” Lewis says. “He was like a big brother.”
With the notable exception of convicted felons in some states, all citizens 21 and older in 1965 had the right to vote under the 15th Amendment, as well as the 19th Amendment, which enfranchised women in 1920. Exercising that right was something else, especially for African-Americans in the South, where the entrenched white power structure erected barriers to stop them from registering.
The weapons of choice were the notorious poll tax and literacy tests. Election officials would require prospective black voters to interpret sections of the Constitution or perform absurd tests, such as counting the number of jelly beans in a jar or bubbles in a bar of soap.
In Selma, Ala., voter registration was open only on the first and third Thursdays of each month. Lewis remembers endless lines forming in front of the courthouse on those days, only to find a sign on the registrar’s door saying the office was closed for vacation.
Selma became a blood-drenched beachhead in the fight for the vote. Lewis recalls Jan. 18, 1965, when he helped escort a group of some 60 citizens, most of them elderly, to the registrar’s office.
“Jim Clark was the sheriff,” Lewis says. “He was a big man. He carried a gun on one side, a nightstick on the other and an electric cattle prod in his hand. He didn’t use it on cattle. He walked up to me and said, ‘John Lewis, you’re an outside agitator. You’re the lowest form of humanity.’ I said, ‘Sheriff, I may be an agitator, but I grew up only 80 miles from here.’ ”
The remark earned Lewis one of his many trips to jail. And things only got worse in Selma that winter as Clark and his deputies used beatings and arrests to block blacks from registering. Meanwhile, state troopers fanned the flames even higher when they shot 26-year-old Jimmie Lee Jackson in the abdomen as he tried to protect his mother from another trooper during a demonstration in the nearby town of Marion. Jackson died eight days later.
King, who had moved his headquarters to Selma, called for a march to the state capital in Montgomery to demand that Gov. George Wallace protect black registrants. On Sunday morning, March 7, 1965, Lewis and fellow activist Hosea Williams of the Southern Christian Leadership Conference set out on the 54-mile trek from Selma with 600 marchers behind them. They only made it six blocks.
As they tried to cross the Edmund Pettus Bridge out of town, they encountered a sea of blue: Clark’s Dallas County deputies and state troopers in gas masks commanded by Col. Al Lingo. The sheriff also had deputized all white men over 21 who showed up. Lingo declared the march illegal and ordered the protesters to disperse. They never got the chance.
“In less than a minute, he said, ‘Troopers advance!’ ” says Lewis, remembering the confrontation as if it were yesterday. “They came at us with nightsticks and bullwhips. They trampled us with horses. Then they released the tear gas.”
Amid a chorus of rebel yells from onlookers, a trooper’s nightstick crashed down on Lewis’ head. Only after he had spoken at a rally that night did Lewis learn that he had suffered a concussion and had spent the day in the hospital, along with about 50 other injured marchers. To this day, he says he still doesn’t remember how he got off the bridge.
“I saw death on that bridge,” Lewis says. “I thought I was going to die.”
Lewis couldn’t understand how President Johnson could send troops to Vietnam but not to Selma. But the struggle on the bridge became a turning point. ABC first broke the news when it interrupted its Sunday night movie—Judgment at Nuremberg—and broadcast footage of the confrontation, which became known as “Bloody Sunday.”
On Aug. 6, 1965, Johnson signed the Voting Rights Act. Less than a year before, the president had told King that he couldn’t deliver the votes from Congress to pass it.
“It not only transformed Southern politics,” Lewis says, 40 years and 40 arrests later, “it transformed the nation.”
Some provisions of the act are permanent, including a flat ban on literacy tests and other obstacles to registration. (The 24th Amendment had outlawed poll taxes for federal elections in 1964.) Another significant permanent provision, section 2, enables private and government lawsuits challenging virtually any election procedure that discriminates against racial or language minority groups. Courts have interpreted section 2 broadly to include everything from last-minute switches in polling place locations to legislative redistricting.
SECTION 5 LOOMS LARGE
The most controversial expiring provision is section 5. It requires certain jurisdictions with a history of illegal discrimination to obtain permission—“preclearance” in election law parlance—from either the Justice Department or a three-judge panel of the federal district court in Washington, D.C., before changing any voting practices.
Though voting rights advocates say section 5 once covered any unconstitutional voting changes, the Supreme Court has taken the more limited view that it merely prevents jurisdictions from backsliding into discriminatory practices, so long as the changes don’t worsen minorities’ positions. Another set of expiring provisions allows the attorney general to send federal election examiners and observers to monitor covered jurisdictions.
Section 5 is important because the Justice Department can use it to prevent voting rights violations before they occur. After-the-fact challenges to voting changes under section 2 can carry the double whammy of increasing litigation costs and reducing the chances of success. And in more swiftly moving section 5 challenges, the burden shifts to the covered jurisdiction to prove that proposed changes don’t discriminate.
Section 5 covers nearly all of nine states—seven of them in the heart of the former Confederacy—and scattered counties or cities in seven others. Though jurisdictions can bail out of section 5 coverage if they can prove they’ve changed their ways, only a handful have succeeded, and the coverage map today is nearly identical to the 1965 version. Congress has recognized that section 5’s singling out of some jurisdictions presents a huge constitutional problem.
In 1982, lawmakers renewed the section for just 25 years, acknowledging that the Supreme Court “has expressed concern that Congress not permanently subject jurisdictions to the unusually stringent remedy of preclearance.”
Supporters fear that without section 5, some jurisdictions would retrogress, as courts and lawyers call it, into illegal voting practices the law banned in 1965. They say its deterrent effect alone makes it worth renewing.
The other significant expiring provision, section 203, requires local jurisdictions to furnish language assistance if either 5 percent or 10,000 of their voting-age citizens speak little or no English. The requirement, first enacted in 1975, covers all stages of the process, from registration to casting a ballot, and includes four language groups: Spanish, Asian, American Indian and native Alaskan. Nearly 500 jurisdictions in 31 states must comply.
As with other statutes aimed at remedying racial or ethnic discrimination, the Supreme Court in all likelihood will apply strict scrutiny—its toughest standard—to any constitutional assault on a renewed Voting Rights Act. Not only will the justices insist on detailed evidence to support the act, they will also demand that the cure be as narrowly tailored as possible to address a specific problem and nothing further.
In 1965, nationally televised beatings of demonstrators and other overt acts of racism and intimidation made it a cinch to justify the Voting Rights Act, constitutionally and politically. Assembling evidence of the type of cleverly disguised discrimination advocates say exists today promises to be a major chore.
The job of building a record to support the act goes to a nonpartisan commission set up by the Lawyers’ Committee for Civil Rights Under Law, a Washington, D.C., advocacy group established in 1963 at the urging of President Kennedy. Working on behalf of the nation’s other major civil rights organizations, the seven commissioners are expected to release their findings this month, culled from a series of public hearings across the country and statistical evidence compiled from government and private sources.
Eventual court success likely will depend on numbers of all stripes, from enforcement to registration and turnout. African-American registration skyrocketed in the South in the years after the law took effect, followed by similar gains as other minorities came on board, especially Latinos and Asian-Americans.
In California, for instance, Asian and Pacific Islander turnout nearly doubled from 1998 to 2004, according to the Census Bureau. Exit polls conducted in eight other states by the Asian American Legal Defense and Education Fund during the 2004 presidential election classified 41 percent of those voters as having limited proficiency in English. Language assistance becomes doubly important in states like California, which not only have burgeoning Asian and Latino populations but regularly ask voters to decide rambling ballot questions that even stump native English speakers.
Executive director Margaret Fung says the fund hopes to use such figures, along with increasing requests for language assistance, to establish a continuing need for section 203. Some advocates want to drop the percentage requirement from 203 altogether and decrease the numerical threshold to as few as 5,000. Fung estimates that would nearly double the number of jurisdictions required to furnish Asian language help, to 49 from 27.
“They may know enough English to pass a citizenship test, but not nearly enough to, say, fill out a California ballot,” Fung says.
RACIALLY POLARIZED VOTING
No government official is likely to own up to racial motives in making voting changes. So statistical studies of a phenomenon political scientists and lawyers call racially polarized voting could carry special significance. In case law, racially polarized voting occurs when patterns emerge in which minority-preferred candidates are shut out of the process because most of the racial majority won’t vote for them. Though not smoking-gun evidence, such studies allow courts to infer that illegal discrimination is at work. The evidence can be more powerful than eyewitness accounts.
“It’s more objective,” says Jon Greenbaum, voting rights director for the Lawyers’ Committee for Civil Rights Under Law. “It’s not simply what one person says versus what another person says. It’s measurable. It’s what courts like.”
Some commentators, mostly academics, have suggested rolling other federal election laws into a single statute or even a new constitutional amendment. They would go beyond the original act’s goal of remedying racial discrimination to encompass issues like felon voting, new state laws governing voter identification and mechanical problems with voting equipment, such as those that caused the Florida recount in the 2000 presidential election.
That’s unlikely in the current judicial climate, however, because some measures may not directly deal with discrimination or lack sufficient evidence to justify them even if they do. Either way, cramming too much into a reauthorization statute could doom the entire act under strict scrutiny or a federalism analysis. “It’s a question of timing,” says lawyers’ committee general counsel John C. Brittain. “It also would prolong debate and become a distraction. We do believe in voting reform for all. But we are careful to distinguish that from the immediate goal.”
Still, a couple of adjustments may occur.
Civil rights leaders are urging Congress to overrule two recent Supreme Court decisions, Reno v. Bossier Parish School Board, 528 U.S. 320 (2000) (Bossier II), and Georgia v. Ashcroft, 539 U.S. 461 (2003).
They read Bossier II as forcing the Justice Department under section 5 to approve unconstitutional voting changes, so long as minorities are no worse off. In Ashcroft, the court allowed redistricting plans that reduce minorities’ chances of electing their own candidates if minorities remain in a position to “influence” the outcome. Critics complain that Ashcroft could result in discrimination because it imposes subjective standards for determining whether minorities are fairly treated.
Supporters hope Congress will lift a financial burden and allow private plaintiffs in section 2 cases to recover their costs in addition to attorney fees, which they already can get. California sets the example. In 2001, it became the first state to pass its own voting rights act to make it easier to challenge at-large election systems that dilute minority voting strength. The law also allows plaintiffs to recoup their expenses to cover the rising price of necessary studies to prove racially polarized voting and expert witnesses to explain the evidence. A state trial judge already has declared the act unconstitutional in one of the first cases filed under it. An appeal is under way.
“You almost had to match the other side dollar for dollar,” says veteran voting rights lawyer Joaquin G. Avila of Compton, Calif., who has long represented Latinos in such cases in his home state and throughout the Southwest. “These cases just became prohibitively expensive.”
Though no one is taking congressional passage for granted, hopeful signs appeared in October, when the Constitution subcommittee of the House Judiciary Committee opened the first round of hearings on renewal. A perhaps telling moment came when Rep. Tom Feeney, R-Fla., regularly identified with his party’s right wing, used both feet to jump all over a political science professor whose analysis of Georgia voting trends contends that the state no longer should fall under section 5. The professor, Ronald Keith Gaddie of the University of Oklahoma, based his conclusions on African-Americans’ gains in winning elective office in the Peach State.
Casting the next skeptical eye on Gaddie’s analysis was Rep. Melvin L. Watt, D-N.C., an African-American who occupies the seat in the state’s oddly shaped 12th District, which concentrates black voters in a narrow 160-mile strip that snakes up Interstate 85 from Charlotte to Winston-Salem.
“I’m beginning to worry because two meetings in a row I agree with Mr. Feeney,” Watt joked. “It kind of unnerves me.”
And though some members of the Congressional Black Caucus weren’t pleased when President Bush told them in January 2005 that he didn’t know enough about the Voting Rights Act to respond to their request for support, Attorney General Alberto R. Gonzales has since repeatedly endorsed reauthorization. Civil rights leaders, however, call the Justice Department’s enforcement efforts woefully inadequate.
OPPOSITION LINING UP
While the depth of the administration’s commitment to renewal remains to be seen, the first court chal- lenges are expected to come from organizations that historically have opposed other civil rights initiatives. They also are completing their own studies in opposition and starting to sniff out potential clients and legal strategies.
One opponent of renewal is Edward J. Blum, a visiting fellow at the American Enterprise Institute for Public Policy Research, a Washington, D.C., think tank. Blum is working with Abigail Thernstrom, vice chair of the U.S. Commission on Civil Rights, on an institute-sponsored endeavor called the Project on Fair Representation, which includes the study of Georgia voting that evoked Feeney’s ire. The study eventually will cover all section 5 jurisdictions, and Blum says he expects to make a strong case for expiration.
He wonders about Republicans who oppose affirmative action in other areas, such as university admissions, government contracting and employment. “I’m pretty sure that most Republicans and conservative types are going to say no to all three,” Blum says. “So why is voting different? The answer is that it’s political.”
He says Republicans for too long have redrawn the lines in a fashion that packs overwhelmingly Democratic black voters into single districts, which may benefit blacks but damage the Democratic Party as a whole. That, Blum and others say, is how Republicans gained control of Congress.
“The idea that this may be coming to an end is threatening to many Republicans,” Blum says.
Another voice in opposition comes from the Sterling, Va.-based Center for Equal Opportunity, of which Blum is a senior fellow. Vice president and general counsel Roger Clegg maintains the Voting Rights Act is constitutionally vulnerable not only because it treats some states differently than others but also because the states historically have conducted registration and elections under their own laws.
A former deputy assistant attorney general in the administrations of Presidents Reagan and George H.W. Bush, Clegg also sees section 5 as the main issue in any future litigation. He’s especially irked that Rep. Jerrold Nadler of New York, the ranking Democrat on the constitution subcommittee, spoke of renewal as a done deal as the October hearings opened and declared that the panel was there “to build a record” for the Supreme Court.
“I’m not going to concede that it’s a done deal,” Clegg says. “Legally, there’s been a lot of water under the bridge [since 1982] and Congress really does need to take a fresh look at whether preclearance makes any sense.”
RENEWAL EFFORTS EXPECTED EARLY
Though Congress has until august 2007 to act, most observers agree lawmakers will take up renewal as early as possible that year so it doesn’t butt up against the 2008 presidential primary season. No candidate wants voting rights on his or her plate with a looming national election that could become a watershed in its own right.
Moreover, another milestone lurks in the not-too-distant future. The Census Bureau predicts that the percentage of whites, who in 2000 accounted for nearly 70 percent of the nation’s population, will drop to 50 percent by 2050.
The transformation already has occurred in some parts of the country. In September, Texas joined Hawaii, New Mexico, California and the District of Columbia as the nation’s newest state with no racial majority, with nonwhites comprising a little more than 50 percent of its population. Next in line are Maryland, Mississippi, Georgia, New York and Arizona, with minority populations of about 40 percent.
So as the United States becomes a truly multiracial society, the continued relevance of the Voting Rights Act could come into doubt. That gives Joe Rogers pause when he considers the drive for renewal.
“It begs the question: Should we be doing this?” says Rogers, a member of the nonpartisan commission set up by the Lawyers’ Committee for Civil Rights Under Law.
Rogers, a Denver lawyer and Republican, was Colorado’s first African-American lieutenant governor. Despite colossal gains by African-Americans in local elections and in contests for the U.S. House, Rogers is one of only a handful to attain statewide office.
“The end hope is that this act is going to be so successful that it no longer will be needed,” Rogers says, “and we won’t have to come back and renew it.”
Correction"New Fight for Voting Rights," January 2006, page 42, misidentified Joaquin G. Avila's current residence because of an editor's error. Avila is a law professor at Seattle University. He is formerly of Compton, Calif. The Journal regrets the error.
John Gibeaut is a senior writer for the ABA Journal.
John Gibeaut is a senior writer for the ABA Journal.