Amended Act Passes...

By Steve Suitts

Vol. 4, No. 1, pp. 2-8

In a final vote showing overwhelming support from members of Congress in the South and elsewhere, the U.S. House of Representatives passed the Voting Rights Act virtually as amended earlier by the House Judiciary Committee. By a margin of 389 to 24, the House now sends to the Senate a bill with amendments that will permit some Southern local governments to bail out from Section 5, the provision of the Act that requires them to get the approval of the U.S. Justice Department before an act or practice affecting voting is implemented.

The bill also makes lawsuits on voting discrimination easier to prove and contains an unexpected change which will bar voters from receiving assistance in the ballot booth unless they are blind or disabled.

The debate on the bill began Friday, October 2, when Rep. Don Edwards of California, chairman of the House Subcommittee on Civil and Constitutional Rights, introduced H.R. 3112. Presenting the first arguments for the passage of the Act, Rep. Dan Glickman, a Kansas Democrat and co-sponsor of the bill, assured his colleagues that the Edwards subcommittee had "found overwhelming evidence that the Act is still needed.... I want to emphasize that this bill is important not only to those vitally affected citizens," Glickman said, "but also because it reinforces to the rest of the world our fundamental democratic principles."

The chairman of the House Judiciary Committee, Peter Rodino, a Democrat of New Jersey, called the moment a "historic day" and explained that the proposed bill had amendments "because fairness dictated that an avenue to escape the preclearance requirements should be afforded those jurisdictions that have had a history of complying with the law."

The first vote on the bill came Monday, October 5, when Rep. Henry Hyde, Republican of Illinois, proposed a "technical" amendment to change the bailout provisions. Hyde proposed to exclude consent decrees reached by litigants in federal court on voting cases as a standard showing a local or state government was not protecting voting rights and could not bail out of the preclearance requirements. Hyde contended that consent decrees were not admissions of wrongdoing even though they are orders of the court to which all parties agree that changes will be made in practices which plaintiffs had claimed were discriminatory. The Illinois Republican said that the present bill would discourage settlements.

Republican Rep. James Sensenbrenner of Wisconsin quickly took issue with Hyde, declaring that "approximately half of the voting rights cases are resolved as consent decrees, settlements, or agreements" and while they rarely contain admissions of guilt "the agreements are signed because litigation is highly likely to result in a judgment that the jurisdiction's voting practices or methods of election are discriminatory." Another Republican, Rep. Hamilton Fish of New York, echoed Sensenbrenner's objection to the change saying "these consent decrees have been largely entered into late in the proceedings and ... proves the point that the jurisdiction could see that it was about to lose."

The roll call vote showed strong support for the bailout provisions prepared by the Edwards subcommittee. The margin, 92 to 284, also showed


Page 3

that Southern representatives would not maintain a "solid South" in opposition to the passage of H.R. 3112. Almost four out of ten of the Southern delegation voted in support of the stronger subcommittee bill.

During the first day of debate, the split in the Southern delegation was evident. While Texas Democrats Martin Frost and Sam Hall voiced support for the subcommittee's bill, Republican Rep. James Collins of Texas joined Caldwell Butler and Thomas Bliley of Virginia and Carroll Campbell of South Carolina—all Southern Republicans—in expressing opposition.

Mickey Leland, a Houston Democrat and one of only two of the South's black members of Congress, spoke early reminding his colleagues that "historical accidents called racism and other kinds of obstacles placed in our paths have indeed disallowed Hispanics and blacks to participate in the process of democracy equally. It takes longer than twenty or thirty years to correct those historical accidents," Leland said.

Congressmen Butler of Virginia and Campbell of South Carolina joined Henry Hyde as the most vocal opponents of H.R. 3112 and as the sponsors of most floor amendments. Saying that it was "sheer demagoguery to suggest that all amendments to the committee bill represent a back door attempt to kill this legislation," Campbell described his amendments as "sensible and constructive proposals that will give the Voting Rights Act the kind of broad, bipartisan consensus it deserves ... and to work for its acceptance here and in South Carolina."

The closest vote on changes in the bailout provisions came on the question of whether local Southern federal courts should replace the federal court in the District of Columbia, as the law now provides, as the forum where local jurisdictions try to bail out from preclearance. Caldwell Butler, the sponsor of the amendment, argued that "it is more reasonable to hear these cases where they arise instead of Washington, D.C. The substance of local judicial prejudice does not in my view exist. . . . "

Rep. Rodino, one of the sponsors of the original 1965 Act, replied, "that time and experience have shown us quite clearly that the D.C. court was the proper court to implement protection for the Fifteenth Amendment. Congress originally placed jurisdiction in the District Court for the District of Columbia to assure uniform interpretation and enforcement of the Act," he said.

Illinois Democrat Harold Washington, a member of the Congressional Black caucus, noted that "there have been any number of cases in Southern district courts which illustrated the difficulty in obtaining relief in voting rights litigation even when the facts and the law were clear, very clear." The amendment failed by a vote of 132 in support and 277 in opposition. About 3/5 of the South's members voted for the Butler amendment.

Before the debate had concluded late in the evening of October 5, ten more amendments would be proposed to alter the House bill and all were rejected. Until the final vote, most Southern members did support the weakening amendments. (See, for example, Chart # 1). In some instances, the words and votes of Southern representatives did not always match.

On the first day of debate Congressman Sam Hall of Texas made brief remarks concluding "I am strongly supportive of H.R 3112." In subsequent votes, however, Rep. Hall voted to amend H.R. 3112 with the Butler amendment and a later amendment proposed by Rep. Campbell to permit states to bail out of preclearance if two-thirds of the local governments in the state had a good record.

One of the few Southern Congressmen who voted for the House bill in every vote was Democrat Bo Ginn of south Georgia. A faithful conservative, Ginn told reporters the


Page 4

reasons: "It means little to whites. It means a whole lot to blacks." Rep. Ginn's district is more than 1/3 black and he is also an announced candidate for governor in Georgia where he will be courting a large number of black votes in Atlanta and other cities in the state.

Before the voting on October 5, Rep. Campbell had proposed several of his amendments to the sponsors of the bill and to civil rights groups as a way for them to assure enough votes for the Act's passage. Administrative assistants and legislative counsels for other Congressional opponents of the Edwards subcommittee's bill also spent time on the telephone in late September predicting that the "hardliners" among civil rights groups, who would not agree to further compromises, would be responsible for crippling the Act when drastic floor amendments were proposed.

Further compromises were apparently unnecessary. On all recorded votes proponents of floor amendments never received as many as one third of the total votes cast.

Strong opposition had been expected to extending the Act's bilingual provisions that guarantee ballots and election materials are printed in both English and the language of a substantial minority population where it exists. Robert McClory, Republican of Illinois, proposed to delete the extension of the bilingual provisions, arguing that the provision was unnecessary and costly. Describing the bilingual ballot as "a luxury that is known to no other country in the world," he argued that the federal government had no right to place this financial burden on state and local governments.

Other representatives quickly replied to McClory's amendment. New York's Hamilton Fish disagreed with McClory's estimates of cost, as did other representatives whose districts have bilingual ballots.

In the middle of the debate, Rep. Leland began speaking in Spanish. Saying to his colleagues that "if you cannot understand me, nor can you understand 21 percent of the adult citizens of El Paso, Texas..." The majority leader of the House, Jim Wright of Texas, also spoke in opposition to the amendment. McClory's amendment failed, 128 to 284.

Filling more than one hundred pages of small print in the Congressional Record, the debate on the Act was often predictable, seldom rancorous, and usually filled with facts and figures. There were, however, a few humorous moments. New York Rep. Robert Garcia told of a conversation with former HEW Secretary Califano as the two discussed the rich ethnic heritage of America. In an apparent game of one-upmanship, Califano boasted that it was an Italian, Christopher Columbus, who discovered America. "But I reminded the Secretary, that it may have been an Italian who discovered America, but it was a Hispanic woman who gave him the money to get here," remarked Garcia, referring obviously to the Queen of Spain who financed Columbus' voyage.

At another moment, in the debate on the bilingual provisions, Rep. Wright was attempting to find the right term to describe the "pluralistic American culture" which was not a "single stream of sameness like ores poured into a melting pot." Apparently finding no other analogy, the Texan suggested that the American culture did not blend together but was "more like a fruitcake."

The only amendment added to the subcommittee's bill was introduced by Republican Rep. Millicent Fenwick of New Jersey. The change prohibits any person from receiving assistance in the polling booth unless the voter is blind or physically incapacitated.

The debate on the amendment was brief, and the need for it was never fully explained. Fenwick mentioned the importance of the "secret ballot" and said that the addition "would seek to keep the bosses out of the ballot booth. The voter should not be accompanied unless blind or physically incapacitated, unable to vote on their own. All the instruction and assistance can be given in the hall."

Although Fenwick supported the subcommittee bill in all other respects, the only other person to speak in favor of her change was Rep. Hyde. "I plead ... let us have a voice vote on this one. Let us prevail," Hyde remarked to Edwards. "Let us say that the gentleman was not so foolishly consistent as to reject what is unquestionably an improvement to this great bill."

Edwards did speak against the amendment, saying that his "subcommittee which heard over 100 witnesses did not receive any testimony on this issue ... and that the responsibility for assisting persons at the voting booth is governed by state law and "is not properly a federal responsibility." With less than 10 minutes of debate, the amendment was passed by voice vote.

The Fenwick amendment may present substantial problems for voters with little education and in some areas where bilingual ballots are not available to Spanish-speaking minorities. In Sumter County, Alabama, for example, white officials who remain hostile to blacks continue to control election procedures. The average level of education for blacks in the county is about 8 years. In the next several months the county is expected to change from paper ballots to voting machines for the first time. Without assistance from anyone of their choosing at the polls, as provided by state law, and with the elections run by hostile whites, elderly black voters may not be able to cast their vote within the few minutes which Alaba-


Page 5

ma law permits a person to remain in the booth.

In Atlanta census figures show that more than 100,000 Hispanic residents now live in the area. Because Atlanta doesn't provide bilingual ballots, (and the Voting Rights Act does not require it in such places), Spanish speaking voters may not be able to function at the polling booth without assistance.

"It is a terrible disappointment," says Raymond Brown who monitors events surrounding the Voting Rights Act for the Southern Regional Council. "It could be very harmful if it stays in the Act," observed Barbara Phillips, co-director of the Voting Rights Project of the Lawyers' Committee for Civil Rights Under Law in Washington.

The amended act now faces in the United States Senate an uncertain future. Republican Sen. Strom Thurmond of South Carolina says that the upper chamber will begin considering the Act in early 1982. Thurmond opposes the extension of the preclearance requirements of Section 5 and has said that any Voting Rights Act should apply nationwide. As chairman of the Senate Judiciary Committee, which will be assigned to study HR 3112, Thurmond is in a position to put some clout behind his views.

Orin Hatch, Republican of Utah, is the chairman of the Judiciary's subcommittee on the Constitution—the legislative unit that has held hearings in the Senate on the Act during past renewals. Hatch's position on Section 5 is unclear; however, he does oppose the House bill's amendments that overturn the Supreme Court's 1980 decision in the Bolden case which held that Section 2 of the Voting Rights Act required successful litigants to prove a racially discriminatory effect and purpose of any voting practice. The House bill permits lawsuits to prevail if the court finds a voting change or practice as a racially discriminatory "result."

Laughlin McDonald, the director of the Southern Office of the American Civil Liberties Union which has litigated numerous voting cases, says that a showing of intent to discriminate is difficult if not impossible to prove. "It can't be done if intent to discriminate requires a confession of guilt. "

The Utah senator was a powerful opponent on the same issue in Congress last year when a new, stronger fair housing bill was proposed. The bill died in the Senate because supporters of the act could not convince Hatch to permit litigants to prove only the effects of racial discrimination in such cases.

Three Southerners other than Thurmond sit on the Senate Judiciary Committee: Republican John P. East of North Carolina and Republican Jeremiah Denton and Democrat Howell Heflin of Alabama. Both East and Denton have also expressed opposition to several sections of the current Act.

With strong Senate opposition to critical parts of the House Bill, time favors the opponents of the act. The preclearance requirements of Section 5 expire August 6 of next year if Congress does not renew the act before then. Hence, the speed with which the Judiciary Committee and its subcommittee proceeds to hold hearings and report a bill to the full Senate is important to the supporters of the Act.


Page 6

Also, the historical tool of Southern opposition to civil rights legislation in the Senate, the filibuster, will be available to delay passage or to press for substantial changes. Although Senate rules on filibustering have changed since the early 1960s, a two thirds vote of all senators is still required in most instances to halt a filibuster.

The act does have bipartisan sponsorship in the Senate. Senator Edward Kennedy of Massachusetts is joined by Democratic Senators Patrick Moynahan of New York, Alan Cranston of California, Howard Metzenbaurn of Wisconsin, and Joseph Biden of Delaware. Republican co-sponsors include Lowell Weicker of Connecticut and Charles Mathias of Maryland.

Also, in an unprompted announcement in June while hearings were being held in the house, Republican Sen. Barry Goldwater of Arizona released a statement supporting the Act's renewal. Aides for the Senate sponsors also say that they have picked up additional Republican and Democratic support in recent weeks.

Despite added support, some key officials have kept mostly silent about the Act. Senate majority leader Howard Baker of Tennessee and Democratic minority leader Robert Byrd of Virginia℄both influential in vote-getting and setting procedural rules℄have not made their positions on the act clear. The only Southern Senator with a good record on the Act, (Chart Number 2), Baker supported extension of the Act in 1970 before becoming head of the Senate Republicans. Byrd opposed the extension without some amendments six years ago, saying, "I just think that the South is entitled to some consideration for the efforts it has made over the past ten years to comply with this law."

In mid-October, however, Byrd did head off the possibility that Thurmond could kill the House bill by never reporting it from committee. When the bill was received by the Senate, Byrd used a parliamentary rule to place H.R. 3112 on a special


Page 7

calendar which permits the full Senate to call up the bill for debate even if the committee has not reported it. The technique of burying legislation in committee was used often in the late 50s and early 60s by the Senate's Southern chairmen hostile to civil rights legislation.

Baker's position and that of other Republicans may be influenced strongly by the White House's views. In June President Reagan requested Attorney General William French Smith to determine if the Voting Rights Act was the "most appropriate means of guaranteeing" the right to vote. Reagan asked for the report by October 1.

The report apparently arrived at the White House on October 2, although its release was delayed. According to sources who saw the document early, the report presents the President with five options. "All of them could spell disaster for a strong act," remarks one civil rights lawyer who had read the report.

Although the President mentioned early this year his own interest in nationwide coverage for the Act, the Attorney General concludes that "there has not yet been developed a record sufficient to demonstrate such a pervasive disregard for minority voting rights in 'non-covered' jurisdiction to support a nationwide extension of the Act's special provisions." At the same time, the report supports removing some local and state governments from the required preclearance of voting changes.

The three options which the Attorney General stresses would weaken HR 3112 by permitting easier "bailout" of local jurisdictions and requiring a "good" record for only five to seven years. The House bill requires a "clean" record for a period of ten years before the jurisdiction can bailout.

One of the alternatives the Attorney General appears to recommend strongly is a five-year extension with provisions that automatically permit bailout for jurisdictions with low minority populations or high minority registration.


Page 8

While the President's views on the Act carry weight with many senators, the strong support for the Act in the House probably will not. The voting records of Southern representatives on the Act show that while only 19 of 108 in eleven Southern States voted against final passage of HR 3112, a majority did support most weakening amendments. If Southern senators follow that pattern, the House bill will be out of danger only if weakening amendments fail. Moreover, it is possible that proponents of the Act in the Senate will have to propose floor amendments in order to restore provisions in the House bill which Thurmond's committee may remove.

Many Southern political observers also discount the notion that the region's senators will follow prevailing votes of their state's House delegations. For example, while a majority of North Carolina's congressmen voted in favor of a stronger act on all roll call votes, no one in the state believes that the Republicans Jesse Helms and John East will take their instructions from those votes. Both North Carolina senators are on record opposing major provisions of the Act.

Perhaps South Carolina's Rep. Carroll Campbell foretold the fate of the Act for the next few months on October 5. After attempting to amend HR 3112, Campbell voted for final passage but rose immediately afterwards to explain: "I consider this bill deficient in some respects and I expect the Senate to consider the merits of the arguments raised against certain provisions."

Voting Record of Southern Members
Of U.S. House of Representatives on
Key Issues of the Voting Rights Act

Members 1975 1981
House of Representatives Butler Amendment Butler Amendment
1981 Exempting Some States Changing Bailout
Alabama
Jack Edwards (R) B B
William Dickenson (R) B B
Bill Nichols (D) B B
Tom Bevill (D) B B
Ronnie B. Flippo (D) - B
Albert Smith (R) - B
Richard Shelby (D) - B
Arkansas
Bill Alexander (D) ? G
Ed Bethune (R) - G
John Hammerschmidt (R) ? G
Beryl Anthony (D) - G
Florida
Earl Hutto (D) - G
Don Fuqua (D) G G
Charles Bennett (D) G G
Bill Chappell (D) B B
Bill McCollum (R) - B
C.W. Young (R) B B
Sam Gibbons (D) B G
Andy Ireland (D) - G
Bill Nelson (D) - G
L.A. BaFalis (R) B B
Dan Mica (D) - G
Clay Shaw (R) - B
William Lehman (D) G G
Claude Pepper (D) G -
Dante Fascell (D) G G
Georgia
Bo Ginn(D) B G
Charles Hatcher (D) - B
Jack Brinkley (D) B B
Elliot Levitas (D) G B
Wyche Fowler (D) - G
Newt Gingrich (R) - B
Larry McDonald (D) B B
Billy Evans (D) - B
Ed Jenkins (D) - B
Doug Barnard (D) - B
Louisiana
Robert Livingston (R) - B
Lindy Boggs (D) B* G
W.J. Tauzin (D) - B
Buddy Roemer (D) - B
Jerry Huckaby (D) - B
W. Henson Moore (R) B B
John B. Breaux (D) B B
Gillis W. Long (D) B G
Mississippi
Jamie Whitten (D) B B
David Bowen (D) B* B
G.V. Sonny Montgomery (D) B B
William Dowdy (D) - G
Trent Lott (R) B B
North Carolina
Walter Jones (D) ? -
L.H. Fountain (D) B G
Charles Whitley (D) - G
Ike Andrews (D) G G
Stephen Neal (D) G G
Eugene Johnston (R) - B
Charles Rose (D) G G
W.G. Hefner (D) B G
James Martin (R) B B
James Broyhill (R) B B
William Hendon (R) - G
South Carolina
Thomas Hartnett (R) - B
Floyd Spence (R) B B
Butler Dernck (D) B ?
Carroll Campbell (R) - B
Ken Holland (D) B G
John Napier (R) - B
Tennessee
James Quillen (R) B B
John Duncan (R) B G
Marilyn Bouquard (D) G G
Albert Gore (D) - G
William Boner (D) - G
Robin Beard (R) ? -
Ed Jones (D) G* G
Harold Ford (D) G G
Texas
Sam Hall (D) - B
Charles Wilson (D) ? G
James Collins (R) B B
Ralph Hall (D) - B
Jim Mattox (D) - G
Phil Gramm (D) - B
Bill Archer (R) B B
Jack Fields (R) - B
Jack Brooks (D) B -
J.J. Pickle (D) B G
Marvin Leath (D) - B
Jim Wright (D) B G
Jack Hightower (D) B G
William Patman (D) - B
E. dela Garza (D) G G
Richard White (D) B G
Charles Stenholm (D) - B
Mickey Leland (D) - G
Kent Hance (D) - G
Henry Gonzalez (D) G G
Tom Loeffler (R) - B
Ronald Paul (R) - -
Abraham Kazen (D) G G
Martin Frost (D) - G
Virginia
Paul Trible (R) - B
G.W. Whitehurst (R) B B
Thomas Bliley (R) - B
Robert Daniel (R) B B
Dan Daniel (D) B B
M. Caldwell Butler (R) B B
J. Kenneth Robinson (R) B B
Stanford Parris (R) - -
William Wampler (R) B B
Frank Wolf (R) - B

G = A vote for the Voting Rights Act or opposing changes to original bill.

B A vote against the Voting Rights Act or supporting changes to original bill.

- = Not a member of Congress or not voting. = Vote is unknown.

* = A vote that was 'paired" with another member of Congress.

** = Amendment to change "bailout' provision so states could be exempted if 60% minority voters cast ballots, and if states remained free of Voting Rts. Act violations for at least five years.

*** = Amendment to change original bill to permit "bailout" from Section 5 to be decided by local federal district courts instead of the district court in the District of Columbia.

SOURCE: Congressional Quarterly; compiled by the Southern Regional Council, 75 Marietta Street, Atlanta, Ga. 30303.

VOTING RECORD
Of Southern Members of
U.S. Senate on Key Issues of
Voting Rights Act 1965-1975

1965 1970 1975**
Senators (1980) Passage of the Voting Rights Act Voting Rights Act Extension Tunney Amendment to Table Stone Amendment on Pre-clearance
Alabama
Howell Heflin (D) - - -
Jeremiah Denton (R) - - -
Arkansas
David Pryor (D) - - -
Dale Bumpers (D) - - B
Florida
Lawton Chiles (D) - - B
Paula Hawkins (R) - - -
Georgia
Sam Nunn (D) - - B
Mack Mattingly (R) - - -
Louisiana
J. Johnson (D) - - B
Russell Long (D) B B* B
Mississippi
John Stennis (D) B - B
Thad Cochran (R) - - -
North Carolina
Jesse Helms (R) - - B
John East (R) - - -
South Carolina
Strom Thurmond (R) B B B
Ernest Hollings (D) - B B
Tennessee
James Sasser (D) - - -
Howard Baker (R) - G B
Texas
Lloyd Bentson (D) - - B
John Tower (R) B B* B
Virginia
Harry Byrd (I) B* B B
John Warner (R) - - -

G = A vote for passage of the Voting Rights Act or a vote opposing changes to original bill.

B = A vote against passage of the Voting Rights Act or a vote supporting changes to original bill.

- = Not a member of Congress or not voting.

* = A vote that was "paired" with another member of Congress.

** = Tunney motion was a vote to table the Stone amendment to only apply the Act's pre-clearance & examiner remedies in any state or subdivision where the Attorney General has filed suit under the Act alleging discrimination.

(R) = member of the Republican Party

(D) = member of the Democratic Party

(I) = independent of the two major parties