The Attack on Voting RightsBy Laughlin Mcdonald
Vol. 7, No. 5, 1985, pp. 1-3
The Reagan Administration continues to widen its attack on minority voting rights. In its latest depredation, it has filed a friend of the court brief with the Supreme Court arguing that the election of even a single black to office forecloses a challenge to a disputed election plan under the Voting Rights Act.
The case in which the brief was filed, Thornburg v. Gingles, involves North Carolina's 1982 legislative reapportionment. In oral argument before the US Supreme Court, heard on December 4,1985, the Reagan Administration was represented by Solicitor General Charles Fried. Julius Chambers, director of the NAACP Legal Defense Fund (and a former president of the Southern Regional Council), argued against Fried and North Carolina Attorney General Lacy Thornburg on behalf of a group of black North Carolinians. Chambers told the Court that "blacks do not have and have not had an equal opportunity to participate in the electoral process and to elect representatives of their choice."
The Department of Justice originally approved the state's plan under the special preclearance provisions of Section 5 of the Act, but a three-judge court later ruled that features of the reapportionment--six multi-member and one single-member districts--violated another part of the Act, Section 2, because they had the result of diluting minority voting strength. The court said that even though a token number of minorities had actually been elected in the challenged districts, this electoral success was "too minimal" and "too recent" in history to support a finding that race was no longer a significant adverse factor or that the elections were fair. Justice, however, in an effort to defend
Page 2its prior approval of the plan, is now arguing that the minimal minority success at the polls is a total bar to a further Section 2 challenge. Reduced to its essentials, the argument is the familiar one emanating from Reagan officials these days: that anything more than tokenism in civil rights is a quota or a form of prohibited affirmative action.
The Administration, despite its frequent rhetoric to the contrary, has never supported strong voting rights laws. When the extension of the Voting Rights Act was debated in the House in 1981, the Reaganites, saying they were "studying" the question, kept silent on the critical issue of whether or not to continue Section 5--which requires certain jurisdictions with long histories of discrimination in voting to obtain federal approval of new voting laws prior to implementing them. After the House voted overwhelmingly to extend Section 5, the Reagan Administration finally showed its hand. It labeled the House Bill "extreme" and lobbied the Senate to cripple it by enacting two amendments, one of which would have exempted a large number of jurisdictions from compliance with preclearance, and another that would have made it easier for the remaining jurisdictions to enact new, potentially discriminatory voting laws. The Senate rejected the proposed amendments and adopted a version of Section 5 similar to that passed by the House.
Reagan and friends also vehemently fought the strengthening of Section 2 of the Act. Section 2 is a general prohibition against discrimination in voting and is enforced in traditional lawsuits brought by the Attorney General or by private parties. Unlike Section 5, it applies nationwide and to both old and new voting practices, even to those which may have been precleared by the Attorney General.
The civil rights community advocated the amendment of Section 2 to include a "results" test for voting rights violations. The issue was important because the Supreme Court had indicated in a 1980 decision, City of Mobile v. Bolden, that direct proof of a racially discriminatory purpose was required in voting cases, regardless of how discriminatory a particular procedure was in practice. Given such a burden of proof, minorities could rarely expect to challenge successfully even the worst of discriminatory practices.
Attorney General William French Smith testified before the Senate on behalf of the Administration in January, 1982 and urged that Congress reject the amendment of Section 2. He called the amendment "bad legislation" and a "dramatic change" in the law. It would, he said, require racial "quotas" for office holding and "proportional representation." The Senate brushed aside the Attorney General's objections and voted eighty-five to eight to adopt the results standard. The President later signed the Act into law in a Rose Garden ceremony, pronouncing the right to vote "the crown jewel of American liberties," and, without betraying a trace of irony, said the new legislation was evidence of his Administration's "unbending commitment to voting rights."
In light of Attorney General Smith's Senate testimony, it is not surprising that the current Administration has taken a hostile view of Section 2 in Gingles. What makes Gingles critical is that the Court has never before revised the application of Section 2 to the particular facts of a given case, and has frequently said that the opinions of the Attorney General are entitled to deference--at least in cases involving Section 5 in which the Attorney General has unique enforcement responsibilities. Whether or not the Court will defer to the Attorney General's opinion in this case, and whether it will establish restrictive guidelines for the implementation of Section 2, will weigh heavily on minority voting rights in the years ahead.
The government's arguments in the Gingles case, however, are refuted by Section 2 itself. The statute requires that political processes be "equally open" to minorities and that they not have "less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." As the statute makes plain, the right protected is one of equal, not token, political participation.
In addition, the statute directs a court to consider "the totality of circumstances" in evaluating a violation, and provides that the extent to which minorities have been elected to office "is one circumstance that may be considered." If black electoral success is merely one of a number of circumstances which may be considered in a Section 2 case, a finding of minimal or any other level of minority candidate success could not, as the government argues, be sufficient.
Congress, in fact, expressly considered and rejected the very argument now being pressed by the Reagan Administration in the Supreme Court. The Senate Report which accompanied amended Section 2 provides that while minority electoral success is a significant and relevant factor, it is n_ the be all or end all--it is not dispositive.
Otherwise, the majority might evade the statute by manipulating the election of a "safe" minority candidate to
Page 3give the appearance of racial fairness to a discriminatory election system. According to the Senate Report, which drew upon the language of prior voting rights cases, "were we to hold that a minority candidate's success at the polls is conclusive proof of a minority group's access to the political process, we would merely be inviting attempts to circumvent the Constitution." Lower federal courts in Alabama, Texas, Louisiana and Illinois have decided cases on the basis of the new law and have predictably rejected the claim that minimal or token black success at the polls forecloses a Section 2 challenge.
The necessity of considering factors other than the election of minorities in the North Carolina case is particularly apparent in House District 21 (Wake County) and House District 23 (Durham County), where black candidates have enjoyed perhaps their greatest electoral successes. One black has been elected to the three-member delegation from District 23 since 1973, and a black was elected in 1980 and 1982 to the six-member delegation from District 21. This success, however, as the trial court found, was the result of single-shot voting by blacks, i.e. blacks giving up the right to vote for all delegation members and instead concentrating their votes on a few black candidates. Black voters in District 23 forfeited up to two-thirds of their voting strength and black voters in District 21 forfeited up to five-sixths of their voting strength in this fashion in order to elect candidates of their choice to office. Whites, by contrast, can vote a full slate without forfeiting any of their voting strength and still elect candidates of their choice. Such a system does not provide black voters equal access to the political process and is another reason the mere election of minorities to office should not foreclose a dilution challenge. The totality of circumstances must always be considered.
Aside from being contrary to the statute and legislative history, the government's Section 2 argument is in opposition to the whole thrust of modern voting and civil rights enforcement. Congress enacted the Voting Rights Act in 1965 as an "uncommon exercise of Congressional power" designed to combat the "unremitting and ingenious defiance of the Constitution" by some jurisdictions in denying minority voting rights. Based upon the continuing need for voting rights protection, Congress extended and amended the coverage of the Act three times--in 1970,1975 and 1982. It would be illogical to suppose, that in amending Section 2, Congress suddenly retreated from its general commitment to racial equality in voting and adopted a statute providing only tokenism and minimal political participation.
Modern congressional enforcement of civil rights in other areas has similarly not been one of minimalism. Congress, for example, clearly intended to protect more than token access to public accommodations or employment when it enacted the Civil Rights Act in 1964, or token service on juries when it enacted the Federal Jury Selection and Service Act in 1968. It makes no more sense to say that token minority success at the polls forecloses a voting rights challenge than to say the renting of a single motel room to a black forecloses a challenge to a discriminatory public accommodations policy, or that the presence of a few blacks in the jury pool bars challenge to a discriminatory jury selection system.
If the Reagan Administration prevails in its Supreme Court argument, it will be impossible to eradicate discriminatory election procedures in places where minority candidates have had some success. On the other hand, jurisdictions in which blacks have had no success will be encouraged to manipulate the election of a token minority and block challenges to their discriminatory election schemes. There will be no incentive for voluntary compliance with the Voting Rights Act and every inducement for circumvention. The Reagan Administration will have accomplished in the courts what it failed to do in the Congress--to significantly retard the nation's twenty year progress in minority voting rights.
Laughlin McDonald is director of the Southern Regional Office of the American Civil Liberties Union.