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Craig Newburger
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Introduction

The following annotated bibliography traces the evolution of American voting rights, or more specifically, the ultimate granting of promised voting rights to African Americans. Correspondingly, the social and legal upheavals that were required for such change to occur are considered. Although, the 15th Amendment to the Constitution of the United States prohibits federal or state governments from infringing on a citizen's right to vote "on account of race, color, or previous condition of servitude," a plethora of insidious methodologies for preventing African Americans from exercising their voting rights were successfully implemented by racist whites who dominated the corridors leading to the voting booths. Voter qualifying tests (e.g., literacy tests), discriminatory enforcement of registration rules, poll taxes, and outright racial gerrymandering were just some of the devices standing between African Americans and their constitutionally guaranteed right to both register to vote and vote.

The civil rights activism of the late 1950s and 1960s reached a high point when the Reverend Martin Luther King lead the Selma march that focused America's attention on this unforgivable inequity, and moved a sympathetic President to work with Congress to achieve a quick passage for the Voting Rights Act of 1965. Before the passage of the Act, 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. 

We have not achieved a panacea in the voting rights area, however. Currently, Blacks make up about 14 percent of the population, but they represent about a third of those ineligible to vote because of criminal 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.

The legal landscape is currently going through a substantive period of evolution regarding applications and interpretations of the Voting Rights Act. As our moral conscience and legal manifestations of such progress, new and unforeseen challenges will certainly need to be met.

The annotations are presented below in the following order of sources: book, cases, Constitutional Amendments, law reviews, magazine, newspaper and Voting Rights Act. 


The following articles are included in this bibliography:
 
Constitution and Statutes

24TH AMENDMENT

15TH AMENDMENT

VOTING RIGHTS ACT

42 U.S.C.A. 1973(a)(b)

42 U.S.C.A. 1973c

Cases

Abrams v.Johnson

Bush v. Vera

City of Mobile, Alabama v. Bolden

Holder v. Hall

Harper v. Virginia State Board of Elections

Johnson v. Mortham

Morse v. Republican Party Of Virginia

Nixon v. Kent County

Ortiz v. City Of Philadelphia Office Of The City Commissioners Voter Registration Division

 Reno v. Bossier Parish School Board

Mark E. Rush, Voting Rights and Redistricting in the United States

Shaw v. Reno

Smith v. Allwright

South Carolina vs. Katzenbach

Thornburg v. Gingles

Williams v. City Of Dallas

Articles

Celebrating Selma: The Importance Of Context In Public Forum Analysis

 Voting Rights Act Section 2: Racially Polarized Voting And The Minority Community's Representative Of Choice

 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 War Over King's Legacy
 


Annotations

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)



 
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