How the Voting Rights Act is the Most Effective Act on the Books

By Drew Days

Vol. 4, No. 1, 1981, pp. 16, 25-27

As one who was charged with enforcing a host of other federal civil rights laws, I can attest that the Voting Rights Act of 1965 is by far the most effective statute on the books. While diligent efforts have been made to achieve compliance with laws prohibiting discrimination in housing, education, employment and the like, meaningful remedies for proven violations in these areas have come only after years of litigation. Administration of the preclearance provisions of the Voting Rights Act has, in contrast, prevented in a matter of days electoral changes likely to undercut or retard meaningful minority participation at the ballot box.

It would be unfortunate, however, for anyone to take what I have just said about the relative effectiveness of the Voting Rights Act to mean that over a century of injustice against minority voters has been remedied and that we need no longer fear that new strategies will be devised to reverse or retard what few gains have been achieved since the Act came into existence. Nothing could be further from the truth.

Though the Act has been on the books since 1965, any fair assessment of its enforcement history would have to conclude that it has been a meaningful weapon against other than the most direct forms of discrimination for less than a decade. It was not until 1969 that the Supreme Court made clear that private parties could sue to obtain compliance by covered jurisdictions with provisions of Section 5 and not until 1971 that the Justice Department received explicit Supreme Court approval to require that changes in polling place locations and in boundary lines by means of annexations receive approval pursuant to Section 5 procedures. Moreover, procedures for enforcing the Voting Rights Act have been the subject of broadly-based court challenges, several of which had to be resolved by the Supreme Court, almost every year since it was enacted.

One must also acknowledge, in assessing the Act’s effectiveness, that covered jurisdictions have made literally hundreds of changes that have never met the preclearance requirement of Section 5. I do not think it extravagant to conclude that many of those changes probably worked to the serious disadvantage of minority voters. I am proud of the performance of the Civil Rights Division in enforcing the Voting Rights Act during my tenure. But I will not assert that even during what I think was a vigorous enforcement of the Act that the Department was able to ensure that every, or indeed most, electoral changes by covered jurisdictions were subjected to the Section 5 process. There was neither time nor adequate resources to canvas systematically changes since 1965 that had not been precleared, to obtain compliance with such procedures or even, in a few cases, to ascertain whether submitting jurisdictions had complied with objections to proposed changes.

It was not uncommon for us to find out about changes made several years earlier from a submission made by a covered jurisdiction seeking preclearance of a more recent enactment. Take, for example, the case of the City of Greenville, Pitt County, North Carolina. In February 1980, the Department of Justice received a submission from Greenville, a city with a 25 percent black population, seeking preclearance of voting changes that became law in 1970, 1972, 1973, 1975, and 1977 without satisfying Section 5 requirements. In this instance, it should be noted, the submission was prompted by inquiries we made based upon an FBI survey conducted of voting changes in North Carolina, conducted at our request. Though the Department found most of the changes were nondiscriminatory, an objection was lodged to the city’s switch from a plurality to majority vote system for election of its city council because of its discriminatory consequences for black voters. Viewed more positively, however, the Greenville experience does point up the fact that

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many unprecleared changes do come ultimately to the Department’s attention. Extension of the Act should increase the likelihood that existing noncompliance with the law will be uncovered and remedied for the betterment of minority voters.

We must also recognize that electoral gains by minorities since 1965 have not taken on such a permanence as to render them immune to attempts by opponents of equality to diminish their political influence. I do not mean to be rhetorical or hyperbolic when I say that electoral victories, won by minorities in many communities through courageous and tenacious effort, could be swept away overnight were protections afforded by the Voting Rights Act removed. Shifts from ward to at-large elections, from plurality win to majority vote, from slating to numbered posts, annexations and changes in the size of electoral bodies, could, in any given community among those jurisdictions covered by the Act, deprive minority voters of fair and effective procedures for electing candidates of their choice. “One swallow does not make a spring” and it is too early to conclude that the effects of decades of discrimination against blacks and other minorities have been eradicated and that they are now in a position to compete in the political arena against nonminorities on an equal basis without the assistance of the Voting Rights Act.

As recently as last month, a three judge district court concluded that in Port Arthur, Texas where blacks constituted 45 percent of the population, city officials proposed redistricting plans subsequent to annexation of virtually all-white suburban areas, “which guaranteed that blacks would remain underrepresented on the City Council by comparison to their numerical strength in the enlarged community.”

As Assistant Attorney General for Civil Rights from March 1977 to December 1980, it was my responsibility to review, with the assistance of my staff, literally thousands of voting changes subject to the preclearance provisions of the Act, to lodge objections to those changes determined to have a discriminatory purpose or effect, to seek the assistance of the courts in enforcing such objections and to respond to litigation brought by covered jurisdictions challenging our refusal to grant preclearance.

Had it not been for Department of Justice opposition during my tenure to these proposals under the Voting Rights Act, they might well have gone into effect unchallenged.

Furthermore, it bears noting that Voting Rights Act enforcement still must be concerned with changes that have a direct effect upon the process of casting ballots, even though most of the serious challenges to minority electoral gains have come recently from redistricting and annexations. In April 1978, for example, New Orleans, Louisiana submitted five proposed polling place changes two days after the changes went into effect for April 1 elections in that jurisdiction. We concluded that one of the changes had had discriminatory effects, in fact, upon the participation of black voters in the election. In that instance, the polling place was changed only 14 days before the election from a private home located in the 92 percent black district to an elementary school in another, noncontiguous district. Advertisements placed in the daily newspaper up to March 30 contained the address of the old polling place. On the day prior to the election itself, the correct polling place location was given but the public school was incorrectly identified. The new polling place, located approximately 16 blocks from the old, required voters, many of whom were elderly, without automobiles or convenient access to public transportation, to cross an interstate highway approximately 170 feet wide in order to cast their ballots. Not unsurprisingly in view of the physical and other obstacles to casting their ballots, many black voters stayed at home on election day.

Between early 1977 and the end of 1980, the Attorney General, on my recommendation, authorized the assignment of over 3,000 federal observers to monitor elections in covered jurisdictions. In almost every case, observers were assigned based upon our judgment that physical interference, intimidation or pressure was likely to be directed at minority voters absent a federal presence. Minority advances in the electoral process would appear to me to be especially vulnerable during the next few years when thousands of jurisdictions will be reapportioning themselves and making other alterations in their political structures based upon results of the 1980 census. I can think of no worse time to pull out from under minorities the props contained in the Voting Rights Act than during this period.

Some opponents of extension of the present preclearance mechanism argue that if the requirements of Section 5 are continued, then they should apply nationwide. As I understand it, these people argue that for 17 years the South has been in what they call “a penalty box,” and the time has come either to remove the preclearance stigma that was designed to punish the South for its past discriminatory conduct or to make all jurisdictions across the country subject to the same preclearance requirements.

There are several basic misperceptions behind calls for nationwide coverage. First, the preclearance provisions of Section 5 were not designed to punish anyone but were instead, in the wisdom of Congress, an effort to protect the voting rights of a previously disenfranchised minority. The triggering formula for preclearance automatically applies to parts of 22 states which employed a literacy test and where less than 50 percent of the voting age residents were registered or had voted in certain presidential elections. The trigger for coverage addresses a problem of substantial underrepresentation and under participation of minority citizens where that problem exists, and is not per se regionally biased. No states or other jurisdictions which are covered are named in the Act. Some Southern states, such as Tennessee and Arkansas, are not covered by Section 5. In contrast, three

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counties in New York City, Monterey, California and El Paso, Colorado are a few examples of covered jurisdictions outside the South.

Perhaps those who argue for nationwide coverage do not understand that the Act already contains a section allowing a court to order preclearance in a state or political subdivision not presently covered by the triggering formula. Under Section 3(c), if a federal district court makes a finding of Fourteenth or Fifteenth Amendment violations, it may order preclearance with the Attorney General or the local district court of voting law changes. Section 3(c) can successfully reach patterns and practices of voting rights violations through case by case litigation in those jurisdictions where the facts suggest there is a need for remedial action to cover voting law changes.

Finally, there are serious administrative problems with nationwide preclearance. It is hard enough for the Department of Justice to enforce the present provisions with respect to existing covered jurisdictions. In many ways the Department relies on voluntary compliance to enforce Section 5. As far as I know, the Attorney General still has not divined a way to ferret out all changes that covered jurisdictions make but fail to submit. I can think of no way for the Attorney General even to begin to get notice of all affected changes if nationwide preclearance is adopted. Although parts of 22 states are already covered, nationwide coverage would require Justice Department review of the laws of 41 states not now covered and of tens of thousands more political subdivisions.

While a dozen Civil Rights Division employees presently review all submissions from covered jurisdictions, the staff would be inundated by the avalanche of voting change submissions from every state, county, and city in the country. Keep in mind, that Section 5 requires that the Department of Justice look at each of these submissions within 60 days.

As I understand it, the Department of Justice is studying a proposal to restrict the types of voting changes subject to preclearance re-

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view. One possibility under review would be to limit the preclearance requirement to those types of changes that have elicited the most objections from the Justice Department. I don not endorse this effort.

Clearly some changes have a greater impact than others. I would agree that the discriminatory redistricting of a state or the annexation of territory by a city which is already using an at-large method of election might affect adversely the minority population in the entire jurisdiction. On the other hand, changes in polling place locations from a housing project in the minority community to a distant location across town, as with a New Orleans submission, may have precisely the type of discriminatory consequences Congress sought to prevent, even though the number of people adversely affected may be smaller. And there are polling place changes which substantially and adversely affect the entire minority community. Recently, the Department of Justice objected to a polling place change that illustrates very well my point. The Board of Directors of the Burleson County Hospital District, Texas, reduced the number of polling places to be used in the hospital district election for board of directors from 13 to one, eliminating the polling places in the predominantly Mexican American and black communities. The one remaining polling place was 19 miles from the Mexican American community and 30 miles from the black community. Without Section 5, this polling place change, which was not submitted until the Justice Department wrote to the district, would have had a substantial discriminatory effect since the hospital district has significant taxing powers. I, for one, am not prepared to say that polling place changes no longer hurt.

The lesson of the pre 1965 experience is that jurisdictions did not limit their efforts to discriminate to one type of voting practice. Congress determined that a preclearance mechanism that monitored all perspective voting changes was necessary to reach and correct discriminatory practices that kept cropping up to replace schemes that had been successfully challenged.

Bail-Out

I am aware that one of the topics being discussed most is the procedure for “bailing-out,” that is, for terminating Section 5 coverage for a covered jurisdiction. There is a bail-out provision in the law as it stands, and it has always been there. Moreover, that bail-out procedure, in Section 4(a), has been used successfully by 24 jurisdictions since 1975.

The current bail-out allows jurisdictions with a genuine history of nondiscrimination to bail-out. Because there is a bail-out that works in the law as it stands, Congress should think very hard before deciding to change the procedure and venture out into uncharted territory. Bail-out is a complicated subject that should be complicated further by change only if the record requires it.

I would suggest several major areas of caution about an alternative bail-out. First, there should be a stringent showing, over a significant period of time, of no violations of the Voting Rights Act or of the Constitution or other voting rights provisions, as well as no objections to proposed voting changes. In the category of no violations, I put a high value on a record of no implementation of Section 5 changes by the jurisdiction in question without submission and preclearance. During the past 5 years, there have been an alarmingly high number of nonsubmissions throughout the covered jurisdictions; these should not be tolerated in a jurisdiction seeking to show that it is “pure” or “saintly” and, therefore, entitled to bail-out.

Second, any bail-out formula should require a showing that the jurisdiction has taken affirmative steps to bring about full voting participation, and the steps to be taken should be an incentive, it ought to set standards high enough to discourage a jurisdiction that might want to be free of the submission obligation but not wish to undergo a true change of attitude and practice.

Third, there should be some measure of the practical effect of the things that the jurisdiction sets out to do, such as a significant increase in the rate of participation by minority voters, and, perhaps other measures.

Apart from the substantive showing to be made by a jurisdiction on seeking to bail-out, there ought to be some careful attention to the procedural and jurisdictional details. For one thing, the standards ought to be as well-defined as possible. The current standards are well-defined, and this clarity has been useful to many local attorneys in deciding whether to bring a bail-out suit. Vague or subjective standards would be very unhelpful.

Next, a jurisdiction seeking to bailout should have to establish not only that its record as a particular governmental body warrants Section 5 coverage termination, but that the same is true of all subunits of government located there. For example, it would not be sensible to allow a state to bail-out if there were violations within individual counties and cities within the state.

Congress recognized that every attack on the right to vote kills at least a part of it that can never be brought back—especially for minority citizens who have been bred to know that some people will stop at literally nothing to prevent them from having that right. Extension of the Voting Rights Act offers the only genuine prospect for ensuring that millions of minority citizens gain their rightful place in the political life of this Nation. The Act’s preclearance provisions do not need to be amended or altered; the Act just needs the resources and vigilant oversight only this Congress can provide to ensure its continued effectiveness. Finally, Congress must ensure that the current and all future Administrations faithfully enforce the provisions of this most vital law.

Drew Days, who testified before Congress on July 13, 1981, is now a professor at Yale Law School.