Race, Racism and the Law 
Speaking Truth to Power!!

HISTORY

Reaffirmation or Requiem for the Voting Rights Act?

Copyright 1996, The American Civil Liberties Union

In the 19th Century, during the early days of Reconstruction, Congress passed two amendments to the Constitution: the Fourteenth, which guaranteed African Americans equal rights under the law, and the Fifteenth, granting black men the right to vote. During that era, 22 African Americans were elected to Congress, including two Senators from Mississippi. More than 700 served in Southern state legislatures, with some Southern states being nominally under black control.

Unfortunately, whites found myriad ways to circumvent the Constitution's promise of equality in a determined effort to keep power out of black hands. With the complicity of the federal courts, the South rewrote its state constitutions to legitimate a host of Jim Crow laws and regulations designed to keep blacks out of the voting booth and out of government. These included literacy tests imposed on blacks who had never had access to education; poll taxes and grandfather clauses; political gerrymandering, and the requirement that a prospective voter present vouchers from two already registered voters. Intimidation and violence reigned, directed against any black man who tried to register himself or others.

This display of racist ingenuity was a source of pride to South Carolina's infamous Senator "Pitchfork" Ben Tillman, who led one of the bloodiest campaigns against black enfranchisement. Said Tillman: "We have done our level best. We have scratched our heads to find out how we could eliminate every last one of them. We stuffed ballot boxes. We shot them. We are not ashamed of it."

By 1902, white officials had effectively subverted the Fourteenth and Fifteenth Amendments, with the courts' approval. Virtually no black elected officials were left, and so the South largely remained until the advent of the civil rights movement. In 1964, Congress passed the Civil Rights Act, but voting discrimination continued. Finally, public outrage over the suppression of nonviolent civil rights protesters precipitated passage of the Voting Rights Act of 1965.

The new law was designed to enforce the Fifteenth Amendment. In one stroke, Section 4 of the Act abolished literacy tests and all other such devices used to discriminate against minority voters. Section 5, the so-called heart of the Act, mandated that any change in election law -- including something as small as moving a polling place -- must be precleared, either through the U.S. Justice Department or through the federal district court in the District of Columbia, to ensure that the change did not abridge minority voting rights. Preclearance applied specifically to jurisdictions that had previously used a literacy test or the like, and where less than half of the voting age residents were registered or had voted.

The number of black registered voters shot up immediately after passage of the Act and continued to rise in subsequent decades. The most dramatic changes occurred in Mississippi, the state with the largest black population and one of the worst records of racial bias. There, black registration rose from 6.7 percent in 1964 to 70.8 percent by 1986.

But although the most blatant obstacles to minority enfranchisement were removed, more insidious obstacles remained. Even when African Americans could register, vote and have their votes fairly tallied, their group voting strength was so diluted by racial gerrymandering and obstructive election schemes that it was virtually meaningless.

The at-large election was one of the most common and effective means of diluting the black vote. Unlike single member district voting, where each district within a given jurisdiction elects its own representative, at-large systems allow all voters to vote for all candidates. Lumping minority voters with a hostile white majority virtually ensures the triumph of candidates chosen by the white majority and the defeat of candidates favored by minority voters. While minority voters have repeatedly demonstrated, across the country, their willingness to support white candidates, whites have just as commonly demonstrated a tendency not to support minority candidates. As a result, to this day it is predominantly minority districts, in which minorities make up more than half the population, that elect minority candidates.

In 1973, the Supreme Court ruled in White v. Regester that at-large election schemes were unconstitutional, if such schemes diluted minority voting strength, and mandated the creation of at least some minority-controlled election districts. With that decision in hand, the ACLU and other civil rights groups began the hard work of challenging the at-large systems in place on every level of government throughout the South. Two years into that process, Congress amended the Voting Rights Act to extend protection to foreign language minorities, including Latinos, Native Americans, Asian Americans and Alaska Natives.

However, the Supreme Court soon dealt a substantial blow to minority voting rights. In 1980, the Court brought progress to a screeching halt when it ruled in City of Mobile v. Bolden that black voters challenging the at-large election of officers to the Mobile, Alabama City Commission had to show not only that their voting strength was being diluted, but that the system had a racially discriminatory purpose. Proving intent is always difficult, if not impossible. The origins of longstanding practices may be shrouded in the past, while legislators have become savvy in masking their true motives for adopting certain recent practices. Judges, in any event, are reluctant to label public officials racist.

The Bolden decision would have been a complete disaster, but when key sections of the Voting Rights Act came up for renewal in 1982 the civil rights community asked Congress to redress Bolden by amending Section 2 of the Act to outlaw any plan that resulted in vote dilution -- whether intentional or not, and no matter when or where that plan was established.

The Reagan Administration and its allies in Congress bitterly opposed these amendments, claiming that they would impose a quota system for voting and "pit race against race." But Congress found that, in fact, the "effects" test established in White v. Regester had a reassuring track record that belied all predictions of doom. According to a Senate subcommittee, calling minority-controlled districts the cause of, rather than a response to, racial polarization was "like saying that it is the doctor's thermometer which causes high fever." Congress passed the amendments by an overwhelming majority.

The impact was extraordinary. After 1982, hundreds of Southern cities, counties and towns switched from at-large systems to district voting, many compelled by lawsuits or by the Justice Department, others in anticipation of such compulsion. Predominantly minority districts were, thus, created.

Minority office holding increased dramatically. In Georgia, for example, vote dilution suits were filed against 40 cities and 57 counties between 1974 and 1990. Almost all were successful. In Alabama, between 1970 and 1989, 42 of the 48 cities with populations over 6,000 switched to district elections.

Change was accelerated by the Congressional redistricting that followed the 1990 census (the census is taken every ten years). Nationwide, the number of majority black and Latino districts went from 29 to 52. New predominantly minority districts were created in nine Southern states, and each elected a black representative -- which increased the Southern black delegation from five to 17. The Congressional Black Caucus, now 40 members strong, had become a force to reckon with.

In 30 years, the Voting Rights Act had altered the face of American government. In 1965, the South had only 72 African American elected officials; by 1976, there were 1,944. Today there are nearly 5,000 -- 68 times as many as when the Voting Rights Act was passed. A study published in 1994, the most comprehensive and systematic to date on the impact of the Voting Rights Act, calls the change a "quiet revolution."

Then, on the last day of its 1993 term, the Supreme Court lowered the boom with its decision in Shaw v. Reno, which called into question the constitutionality of remedial race-conscious districting. For the voting rights movement, it was like a train wreck at high speed.