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BOOK
Mark E. Rush, Voting Rights and
Redistricting in the United States, Greenwood Press: Westport,
Conn., 1998.
This collection of essays addresses key elements of the law
and politics of voting rights: the Supreme Court's jurisprudence,
the impact of the Voting Rights Act, and the opportunities for
enhanced minority representation posed by alternative electoral
systems. The book's 328 pages are comprised of contributions
written by both legal and political science practitioners in the
field of voting rights. The collection includes current analysis
of related Supreme Court decisions, current research on the
impact of the Voting Rights Act on the various minority groups it
purports to assist, and critical analysis of the use of
alternative electoral systems. Such considerations as "Equal
Representation or Guardian Democracy?", "Race and
Representation in the Supreme Court," and "The Impact
of the Voting Rights Act on African-Americans: Second and Third
Generation Issues" will hold the reader's interest.
CASES
Abrams v.Johnson, 117 S.Ct. 1925
(1997).
Georgia residents brought an action challenging the
constitutionality of a legislative redistricting plan, and also
sought injunction against any further use of plan in upcoming
congressional elections. The Supreme Court held that: (1)
district court was not required to defer to unconstitutional
plans previously adopted by Georgia legislature and acted within
its discretion in deciding it could not draw two majority-black
districts without engaging in racial gerrymandering; (2) district
court's failure to create second majority-black district did not
result in dilution of black voting strength in violation of
Voting Rights Act; (3) district court's plan did not violate
Voting Rights Act provision prohibiting plans resulting in
retrogression in position of racial minorities; and (4) plan did
not violate constitutional guarantee of one person, one vote.
Bush v. Vera, 116 S.Ct. 1941
(1996).
Registered voters brought an action for injunctive and
declaratory relief from Texas' redistricting plan adopted after
the 1990 census revealed a population increase entitling Texas to
three additional congressional seats. The Supreme Court held that
the new district lines were drawn with race as the predominant
factor and, thus, the districts were subject to strict scrutiny.
The Court held that strict scrutiny applies where
congressional redistricting legislation is so extremely irregular
on its face that it rationally can be viewed only as effort to
segregate races for purposes of voting, without regard for
traditional districting principles, or where race for its own
sake, and not other districting principles, was legislature's
dominant and controlling rationale in drawing its district lines.
City of Mobile, Alabama v. Bolden,
100 S.Ct. 1490 (1980).
Black citizens of Mobile, Alabama, brought a class action
challenging constitutionality of the city's at-large method of
electing its commissioners. The Supreme Court held that the
at-large electoral system in Mobile did not violate the rights of
the city's Negro voters in contravention of the Fifteenth
Amendment, since Negroes in Mobile register and vote without
hindrance and their freedom to vote has not been denied or
abridged by anyone.
Holder v. Hall, 114 S.Ct. 2581
(1994).
Black voters brought an action challenging the single county
commissioner form of government as a violation of the
Constitution and the Voting Rights Act. The Supreme Court, held
that the plaintiff could not maintain a vote dilution challenge
to a government body, such as a county commission, under § 2 of
Voting Rights Act.
Johnson v. Mortham, 926 F.Supp. 1460
(N.D. Florida 1996).
White and Hispanic voters brought an action to challenge the
constitutionality of an African-American majority congressional
district created by a federal court, alleging that such a
district violated equal protection in that it segregated voters
on basis of race and was not narrowly tailored to further a
compelling governmental interest. The District Court, 915 F.Supp.
1529, granted voters' motion for partial summary judgment,
finding the federal court which established the challenged
district's boundaries lacked constitutional authority to adopt a
permanent redistricting plan and finding that the district was
drawn for predominantly race-based reasons. After a bench trial,
the District Court held that the alleged need to remedy past
effects of racial discrimination was not a compelling
governmental interest justifying the creation of a district, and
the district was not narrowly tailored to serve the asserted
compelling governmental interests.
Morse v. Republican Party Of
Virginia, 116 S.Ct. 1186 (1996).
Registered voters wishing to become delegates to a political
party's state convention to nominate a candidate for United
States Senator brought an action challenging the party's
requirement that persons wishing to become delegates pay a
registration fee. The Supreme Court held that a private right of
action exists to enforce the Voting Rights Act section that
prohibits a poll tax.
Nixon v. Kent County, 76 F.3d 1381
(6th Cir. 1996).
Coalition of African Americans and Hispanic Americans brought
Voting Rights Act claim asserting that apportionment plan enacted
for county board of commissioners unlawfully diluted minority
voting strength. The Court of Appeals held that the plain
language of the Voting Rights Act did not authorize a voting
dilution claim by a coalition of two different minority groups
which individually lacked sufficient members to state separate
prima facie claims.
Ortiz v. City Of Philadelphia Office
Of The City Commissioners Voter Registration Division, 28 F.3d
306 (3d Cir. 1994).
Suit was brought challenging a statute allowing for removal of
inactive voters from registration lists. The Court of Appeals
held that the statute did not violate the rights of minority
voters.
Reno v. Bossier Parish School Board,
117 S.Ct. 1491 (1997).
Louisiana parish school board sought preclearance under Voting
Rights Act for its proposed redistricting plan. The Supreme Court
held that: (1) preclearance under Voting Rights Act may not be
denied solely on basis that covered jurisdiction's new voting
standard, practice, or procedure violates Act section barring
states and their political subdivisions from maintaining voting
standard, practice or procedure that results in denial or
abridgment of right to vote on account of race or color; (2)
evidence that covered jurisdiction's redistricting plan dilutes
minorities' voting power may be relevant to inquiry whether
covered jurisdiction acted with purpose of denying or abridging
right to vote on account or race or color under Voting Rights Act
preclearance section; and (3) whether district court considered
relevant proffered evidence showing that board's redistricting
plan diluted minorities' voting power was unclear.
To obtain judicial preclearance under the Voting Rights Act, a
covered jurisdiction bears the burden of proving that electoral
change does not have purpose and will not have effect of denying
or abridging right to vote on account of race.Voting Rights Act
of 1965, § 5, 42 U.S.C.A. § 1973c.
Shaw v. Reno, 113 S.Ct. 2816 (1993).
North Carolina residents brought an action against the United
States Attorney General, Assistant Attorney General, and various
state officials and agencies, challenging North Carolina's
congressional redistricting plan. The Supreme Court held that the
allegation that North Carolina's redistricting legislation was so
extremely irregular on its face that it could rationally be
viewed only as effort to segregate races for purposes of voting,
without regard to traditional districting principles and without
sufficiently compelling justification, was sufficient to state
claim upon which relief could be granted under the equal
protection clause.
Thornburg v. Gingles, 106 S.Ct. 2752
(1986).
Action was brought challenging the use of multimember
districts in North Carolina legislative apportionment. The
Supreme Court held that: plaintiffs claiming impermissive vote
dilution must demonstrate that voting devices resulted in unequal
access to electoral process; a legal concept of racially
polarized voting incorporates neither causation nor intent; some
electoral success by a minority group does not foreclose a
successful section 2 claim; a finding of impermissible dilution
was supported by the evidence; but, the claim of dilution with
respect to one multimember district was defeated by evidence that
last six elections resulted in proportional representation for
black residents.
Williams v. City Of Dallas, 734
F.Supp. 1317 (N.D. Texas 1990).
Suit was brought against the city of Dallas, alleging that THE
system for election of members of the city council violated the
Voting Rights Act. The District Court held that use of eight
single-member districts and three "at-large" places to
elect members of the Dallas city council violates § 2 of the
Voting Rights Act because it dilutes the votes of politically
cohesive blacks and Hispanics in Dallas.
CONSTITUTIONAL AMENDMENTS
15TH AMENDMENT
The 15th Amendment to the Constitution of the United States,
ratified in 1870, prohibits federal or state governments from
infringing on a citizen's right to vote "on account of race,
color, or previous condition of servitude."
In Smith v. Allwright, 321
U.S. 649 (1944), the Supreme Court held voting rights
discrimination in primaries to be unconstitutional on the basis
of the 15th Amendment.
24TH AMENDMENT
The Twenty-Fourth Amendment to the Constitution of the United
States, ratified Jan. 23, 1964, bans the use of poll taxes (or
any other tax) in federal elections. Such taxes were imposed by
five states--Alabama, Arkansas, Mississippi, Texas, and Virginia,
as a means to circumvent the Fifteenth Amendment guarantee of
equal voting rights.
The amendment prohibited the tax only in federal elections,
but the Supreme Court declared in Harper
v. Virginia State Board of Elections, 383 U.S. 663 (1966) that
the tax was unconstitutional in state elections because it
violated the 14th Amendment's equal protection of the laws
guarantee.The amendment led to the Voting Rights Act of 1965.
LAW REVIEWS
Ronald J. Krotoszynski, Jr.,
Celebrating Selma: The Importance Of Context In Public Forum
Analysis, 104 Yale Law Journal 1411, 1411-1425 (1995).
The Voting Rights Act of 1965 allowed African Americans to
step forward and participate in the American political process.
The Act did not eliminate all of the evils of racist opposition
to Blacks' participation in process, but it took a large step
forward. This article examines some of the history contemporary
to the Act's passage. The article examines the social
significance of the Selma march lead by the Reverend Martin
Luther King in focusing national attention on the
disenfranchisement of Southern blacks. The march, in fact,
prompted Congress to pass the Voting Rights Act of 1965. The
Voting Rights Act, in turn, led to a dramatic rise in black
participation in democratic government, forever altering the
shape of politics throughout the South and throughout the
nation.
Although, the author focuses on First Amendment issues, his
consideration of the political activism of the civil rights
movement and the impact of that activisim on American culture and
laws makes this article worth the time it takes to read it. In
Reverend King's words, "The Civil Rights Act of 1964 gave
Negroes some part of their rightful dignity, but without the vote
it was dignity without strength."
The author recounts that in 1965, the disenfranchisement of
the black citizens of Alabama was nearly complete. Although
15,115 black persons of voting age resided in Dallas County, the
central Alabama county of which Selma is the principal city, only
335 (representing 2.2% of all black citizens) were registered to
vote. In contrast, 9542 of the 14,400 white residents of Dallas
County were registered. This appalling pattern repeated itself
throughout other counties in central Alabama's "black
belt." The article makes its points by highlighting little
known facts such as the following. "In some areas, dead
white Alabama residents apparently enjoyed greater access to the
ballot than live black ones. In Wilcox County, for example, none
of the 6085 black residents were registered to vote, but 2959 of
only 2647 white residents were registered."
The author takes the reader on a journey that includes stops
at voter qualifying tests, discriminatory enforcement of
registration rules, poll taxes, and outright racial
gerrymandering. This essay is good reading for someone whose
recollection of those events is fuzzy, or whose activism has
turned to apathy.
Evelyn Elayne Shockley, Voting Rights
Act Section 2: Racially Polarized Voting And The Minority
Community's Representative Of Choice, 89 Michigan Law Review
1038, 1038-1047.
This article starts off quoting W.E.B. DuBois, "[t]he
granting of the ballot to the black man was a necessity, the very
least a guilty nation could grant a wronged race..." It then
continues painting an interesting historical picture of African
American voting rights suffrage leading to the enactment of the
Voting Rights Act of 1965. The author sensitively points out that
although the Fifteenth Amendment gave African-American men the
right to vote in 1870, almost a hundred years later they were
still largely unable to exercise the right. This condition did
not result from apathy on the part of African-American voters,
but rather from their inability to overcome barriers set up by
white racists who instituted such practices as literacy and
understanding tests, poll taxes, the white primary, intimidation,
and violence.
The author points out that in 1965 only 383 African-Americans
of voting age, out of approximately 15,000, were registered to
vote in Dallas County, Alabama. In the three months following the
enactment of the Voting Rights Act, 8000 African-Americans were
registered. The author then concludes that under such conditions,
assuring African-Americans access to the ballot alone marked a
congressional achievement. The article assists one trying to
acquire an understanding of the intricacies of the Voting Rights
Act. It's crisp writing style makes the task less tedious.
MAGAZINE
Vern E. Smith, Jon Meacham, &
Veronica Chambers, The War Over King's Legacy, Newsweek, April 6,
1998, at 42, available in Westlaw, 1998 WL 9578302.
This article examines the man that brought America to the
moral crossroad. Although, the Reverend King's impact on the
passage of the Voting Rights Act of 1965 is only briefly touched
on, the article's strength is in its analysis of the man who
served as a catalyst for significant change in both the American
legal and moral landscape.
NEWSPAPER
Andrea F. Siegel, Felon Ballot
Rights Sought; Convict Sues To Gain Absentee Voting For Various
Inmates; 'Very Significant Issue'; Some Say Law Keeps Many Black
Men From Taking Part In Elections, The Baltimore Sun, August 7,
1997, at 1B, available in Westlaw, 1997 WL 5523742.
Calvin Robinson-Bey, a convicted killer, filed a civil suit
contending that the "growing number of African American men
incarcerated in Maryland was having a profound impact on the
so-called Black community's ability to participate in the
political process." Robinson-Bey's suit challenged a state
law that bars voting by those serving time for a first felony
conviction and permanently purges a voter from the registration
list after a second such conviction. He wanted the state to set
up an absentee ballot system for inmates awaiting trial and for
jailed misdemeanor offenders, as well as for incarcerated felons.
Malcolm Young, executive director of the Sentencing Project, a
Washington nonprofit think tank, cautioned that, "With an
estimated 1.4 million Black men -- or one in seven Black men of
voting age -- disenfranchised nationally, the loss of a large
number of potential Black voters is a "very significant
issue." The organization estimated that 4.2 million people
of all races are barred from voting because of convictions. While
Blacks make up about 14 percent of the population, they represent
about a third of those ineligible to vote because of convictions.
The penalty falls harder on Blacks because their incarceration
rate is higher, and, some contend, the disparity is widening
because Blacks are punished more harshly.
Maryland is among 13 states where felons lose the vote,
according to a report by the Sentencing Project. "I think it
is important to consider whether or not there is a social cost
there." Department of Corrections statistics show that 77.8
percent of the 22,000 people in Maryland state prisons are
Black.
This article addresses an area rarely considered by voting
rights advocates who express concern about African American
participation in the American political process. There just may
be a social cost there.
VOTING RIGHTS ACT
The Voting Rights Act was passed by the U.S. Congress in 1965.
African American voter registration drives were met with extreme,
at times, violent resistence. In March 1965
Dr. Martin Luther King, Jr., led a march from Selma to
Montgomery, Alabama, to bring attention to the voting issue. This
Act was passed largely because of the influence exerted on the
Congress by the activism of the civil rights movement and a
sympathetic President, Lyndon Johnson. The Voting Rights Act
authorized the U.S. Attorney General to intervene in voter
registration activity under certain circumstances, and it
essentially brought to an end voter literacy tests.
The Supreme Court found the law constitutional against a
states' rights challenge in South
Carolina vs. Katzenbach, 383 U.S.301 (1966). Chief Justice Earl
Warren wrote in the 8-1 majority opinion,"This may have been
an uncommon exercise of Congressional power, as South Carolina
contends, but the Court has recognized that exceptional
conditions can justify legislative measures not otherwise
appropriate."
42
U.S.C.A. § 1973(a)(b)
§ 1973. Denial or abridgement of right to vote on account of
race or color through voting qualifications or prerequisites;
establishment of violation.
(Voting Rights Act of 1965, § 2, as
amended, 42 U.S.C.A. § 1973.)
(a) No voting qualification or prerequisite to voting or
standard, practice, or procedure shall be imposed or applied by
any State or political subdivision in a manner which results in a
denial or abridgement of the right of any citizen of the United
States to vote on account of race or color, or in contravention
of the guarantees set forth in section 1973b(f)(2) of this title,
as provided in subsection (b) of this section.
(b) A violation of subsection (a) of this section is
established if, based on the totality of circumstances, it is
shown that the political processes leading to nomination or
election in the State or political subdivision are not equally
open to participation by members of a class of citizens protected
by subsection (a) of this section in that its members have less
opportunity than other members of the electorate to participate
in the political process and to elect representatives of their
choice. The extent to which members of a protected class have
been elected to office in the State or political subdivision is
one circumstance which may be considered: Provided, That nothing
in this section establishes a right to have members of a
protected class elected in numbers equal to their proportion in
the population.
42 U.S.C.A. § 1973c. Alteration of
voting qualifications and procedures; action by State or
political subdivision for declaratory judgment of no denial or
abridgement of voting rights; three-judge district court; appeal
to Supreme Court.
Whenever a State or political subdivision with respect to
which the prohibitions set forth in section 1973b(a) of this
title based upon determinations made under the first sentence of
section 1973b(b) of this title 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, or
whenever a State or political subdivision with respect to which
the prohibitions set forth in section 1973b(a) of this title
based upon determinations made under the second sentence of
section 1973b(b) of this title 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, 1968, or
whenever a State or political subdivision with respect to which
the prohibitions set forth in section 1973b(a) of this title
based upon determinations made under the third sentence of
section 1973b(b) of this title 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, 1972, 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, or in contravention of the guarantees
set forth in section 1973b(f)(2) of this title, 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, or upon good cause shown, to
facilitate an expedited approval within sixty days after such
submission, the Attorney General has affirmatively indicated that
such objection will not be made. Neither an affirmative
indication by the Attorney General that no objection will be
made, nor 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. In the event the
Attorney General affirmatively indicates that no objection will
be made within the sixty-day period following receipt of a
submission, the Attorney General may reserve the right to
reexamine the submission if additional information comes to his
attention during the remainder of the sixty-day period which
would otherwise require objection in accordance with this
section. 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 and any appeal shall lie
to the Supreme Court. (42 USCA § 1973c) |
