"Why the South Needs the Voting Rights Act"By Reubin O'D. Askew
Vol. 4, No. 1, 1981, pp. 10-13
With tear gas, with billy clubs, and with bullwhips, the eyes of America were opened at Selma, Alabama in 1965. The longstanding refusal of this nation to fulfill one of the most basic of its democratic commitments was revealed for all to see.
American citizens were denied their constitutional right to vote, and they were beaten and jailed for protesting that denial, simply because they were black. Millions of other Americans, both black and white, watched as it happened. The sights and the sounds of their television screens disclosed in sad detail the horror of the attacks on the peaceful marchers of Selma.
In the wake of those attacks, those who had long resisted statutory protection for minority voting rights in America were momentarily overwhelmed by the aroused sentiments of a conscience-stricken nation. Rising to the challenge, Congress quickly enacted a new law designed to assure and protect the right to vote.
In signing that law, President Lyndon Johnson summarized eloquently the need for such legislation.
"This Act," he said, "flows from a clear and simple wrong. The wrong is one which no American in his heart can justify. The right is one which no American, true to our principles, can deny."
The law passed by Congress and approved by President Johnson in the aftermath of the Selma marches is the Voting Rights Act of 1965. In the past sixteen years, that Act has proved to be one of the most successful laws ever enacted in the United States.
To a great extent, the wrong the Act was meant to redress has been rectified, and the right the Act was meant to protect has been secured. Throughout America, blacks and other minorities register, vote, and serve in elective office in record numbers. To many, Selma is a distant memory, and the right to vote is thought now to be a right freely and fairly exercised by all.
Not surprisingly, the very success of the Voting Rights Act has caused some, within Congress and without, to wonder whether the protections the Act affords are still needed. And, in the midst of a general retreat nationwide from the very notion of federal assertiveness, the question is asked: Why should we bother to prolong these protections when the Act comes up for review next year?
The answer to that question is simple: We should extend the Voting Rights Act because, as Americans, and as believers in representative democracy, we are still true to our principles, and we still care about the integrity of the right to vote.
Extended in 1970, and extended in 1975, the Voting Rights Act should be
Page 11extended again in 1982. The safeguards it provides are still needed to assure a free and fair exercise of the right to vote. Those who argue against yet another extension make much of the changes the Act has wrought in the political life of the nation. They point readily to the remarkable strides we have made since Selma.
Yet, as remarkable as they may be, the advances we have made since 1965 toward full participation by minorities in the American political process are still very much inadequate. Despite our strides, black registration in the South is still more than twenty percent lower than white registration. And, despite our advances, at no level nationally do black elected officials approximate their share of the population.
Blacks today comprise about 12 percent of the nation's population but hold only about one percent of the nation's elective offices. And, among these black office holders in the fifty states, there is not a single black governor, lieutenant governor, or United States senator.
In my home state of Florida alone, despite the substantial advances of recent years, blacks still represent less than 1.5 percent of all elected officials. And blacks, Hispanics, and other minorities represent less than two percent of all elected officials in Florida, despite the fact that minorities constitute a quarter of the state population. There are no members of minority groups among the statewide elected officials in Florida. And, among the 160 members of the state legislature, there are just five blacks and only one Hispanic.
The Voting Rights Act must not become a victim of its own success. For that success is incomplete. The aims of the Act still have not been achieved. Blacks and other minorities in America still do not have the full benefit of the right to vote.
We have put an end to literacy tests. We have abolished the poll tax. We have done away with property qualifications. We have dispensed with "grandfather" clauses and "good character" tests. We have rid the political process of virtually all the overt means of discrimination by which the right to vote was so cynically withheld for so long. But discrimination remains. It has simply assumed other, subtler forms.
No longer is there outright denial of the right to vote, as there was at Selma and as there was throughout so much of America before 1965. Today there is instead a dilution of the impact of minority votes through imaginative schemes and practices involving at-large elections, annexation of adjacent suburbs, and gerrymandering of reapportioned electoral districts.
Minorities are allowed to register, and they are allowed to vote. But the political system is often structured in such a way that black candidates can rarely get elected. So the results are often the same as they were before 1965.
This is the principal reason why, for example, so few members of minority groups serve in the Florida legislature. At-large elections in areas of the state where minorities are most numerous virtually assure the defeat of minority candidates. Until we have single-member districts in Florida, elected officials will not be as accountable as they should be to all their constituents, and the votes of minorities will count less than the votes of other citizens.
The situation in Florida is typical of the situation elsewhere. Minority votes are diluted throughout America. This is hardly consistent with the constitutional concept of the right to vote. And it is a good example of why we still need a strong and effective Voting Rights Act.
Essential to a strong and effective Act are the preclearance provisions of Section 5. These provisions are the heart of the Act and the source of much of the current debate about the Act. Simply put, Section 5 dictates that any state or local government with a history of voting discrimination must submit any change in its election laws to the Justice Department for prior approval, and if such approval is not granted, must either change the law or obtain the approval of a federal district court in Washington.
Preclearance is viewed by its advocates as necessary insurance against renewed or continued disrimination. It is viewed by its detractors as an intrusion by the federal government into the sovereign domain of the states. Both are correct.
But in my view, the reasons for continued enforcement of the preclearance provisions are far more compelling than those against such enforcement.
Preclearance is indeed an intrusion on the dignity of sovereign states. It offends our belief in the principle of Federalism. Yet this intrusion was richly earned through years of countless indignities imposed on those who sought to exercise their right to vote. And, as much as I believe in Federalism, I believe also that our concern for Federalism must yield to our concern for the integrity of the Fifteenth Amendment.
Were it not for the long history of flagrant discrimination which led to the confrontation at Selma and inspired the Act in the first place, the elimination of preclearance might be justified. As it is, I think it naive to suppose that, without some form of federal oversight, the right to vote will not, in some instances, be abused.
We can regret the necessity of federal intervention in what ideally should be the preserve of local governments and the states. But that does not remove the necessity.
Some have maintained that, out of fairness, the preclearance provisions of
Page 12the Act should be extended to cover all 50 states, and not merely those with past histories of discrimination. In fact many of the restrictions in the Voting Rights Act already apply nationwide. And all 50 states are already liable, if not now subject, to preclearance procedures. If a court finds that any one of them has violated constitutnal voting rights to an extent justifying relief, it can require preclearance.
As it is, Section 5 now applies to nine states and portions of 13 others. This includes states from virtually every region of the nation. Practically speaking, extending Section 5 to all 50 states would flood the Justice Department with preclearance requests, particularly as the states reapportion following the latest census.
In extending the preclearance provisions everywhere, we would lessen the ability of the Justice Department to enforce the Act anywhere-and increase the likelihood that discriminatory changes in election laws would survive the screening process.
Although it would not be advisable to extend preclearance nationwide, there may be some merit in allowing communities and states to escape from preclearance requirements if they can prove they no longer discriminate. To be acceptable, any such "bailout" provision should be carefully drafted to demand that the burden of proof in avoiding preclearance fall on communities and states to show that they are no longer discriminating. It should in no way diminish, and no way even threaten to diminish, the integrity of the right to vote.
It is important to realize as well that other minorities besides blacks have a stake in the extension of the Act. Partly as a result of low registration and turnouts, Hispanic Americans are badly under-represented at all levels of government. Hispanics are a rapidly growing minority group. Yet, according to the New York Times, there are only six Hispanic members of Congress, all in the House of Representatives, and, except in New Mexico, no Hispanics now hold statewide office anywhere in the nation.
Congress broadened the Voting Rights Act in 1975 to protect the rights of Hispanics and other minorities who often speak little or no English by requiring that bilingual ballots, bilingual voting machines, and other bilingual assistance be made available in certain areas.
I can speak firsthand of the need for this provision. In my current home of Dade County, Florida, in reaction to the arrival of the Mariel and Haitian refugees, an ordinance has been enacted prohibiting the use of any language other than English in a government publication. Without the bilingual requirements of the Voting Rights Act, Dade County would not be able to provide a bilingual ballot. Yet 35 percent of the people who live and vote in the county are of Hispanic descent.
This particular provision of the Act does not expire until 1985. But it too should be extended as an outcome of the current debate.
Still another result of the current debate should be clarification in the Act that the test of discrimination in voting is the effect of a law and not the intent of those who enacted it.
As a former prosecutor, I can say with some certainty that intent is hard to prove. Given the outcome of the Supreme Court decision last year, I think the black voters of Mobile, Alabama will agree. And I know the black voters of my former home of Escambia County, Florida, will agree as well, for they too have tried with some difficulty to prove discriminatory intent in court. But in the area of voting rights, proof of discriminatory intent should not be required. It is effect, not intent, that matters. If the effect of a law is to dilute the right to vote, then the law should be removed from the books, regardless of the intent of those who enacted it.
The inclusion of this principle in the Voting Rights Act would enable us, for the first time, to combat effectively the new and sophisticated means of voting discrimination—such as at-large elections—which have proliferated since Selma. It would help us assure that the votes of all citizens count equally in choosing our representatives and resolving public issues.
In a democracy, all else flows from the right to vote. The exercise of all our other rights as Americans depends on the free and fair exercise of the franchise. The vote is the wellspring of participation. It is the indispensable key to entry into the full life of this land. At a time when participation has diminished, when democracy is threatened, what wisdom can there be in according anything less than the fullest possible measure of protection to the exercise of the right to vote? At a time when there is so little faith in our institutions of government, what reason can there be for risking the integrity of the one means by which all Americans have an opportunity for an equal voice in the actions of government?
Reubin O'D. Askew was formerly governor of Florida and special trade representative for the United States in the Carter Administration. His remarks were presented at a conference on minority voting rights in the South on August 21, 1981.