United Steelworkers vs. Weber: Affirmative Action on Trial

By Laughlin McDonald

Vol. 1, No. 9, 1979, pp. 14-17

United Steelworkers of America v. Brian F. Weber, known familiarly asWeber because of the enormous interest the case has generated, was argued in the Supreme Court on March 29, 1979, before a standing-room-only crowd of spectators. Weber will decide whether a quota for Blacks in on-the-job training for skilled craft jobs adopted by Kaiser Aluminum and Chemical Corporation and the United Steelworkers of America, AFL-CIO unlawfully discriminates against Whites. Both the district court in Louisiana and a majority of a panel of the Court of Appeals for the Fifth Circuit have held that it does. If the Supreme Court agrees, the case could scuttle all voluntary affirmative action for racial minorities in the nation’s work force.

Weber involves Kaiser’s hiring practices in its plant at Gramercy, Louisiana, a small town of approximately 2,000 people, 25 miles up the Mississippi River from New Orleans. Kaiser opened the Gramercy plant in 1958. At that time racial discrimination in employment was commonplace in southern Louisiana, and indeed, throughout the country. Given the employment practices of the times, it is not surprising that for the first ten years of its operation, the Gramercy plant employed less than 10 percent of Blacks. Had race not been a factor in hiring, one would have expected to see nearly four times that many Blacks on the plant’s payroll, for St. James Parish, in which Gramercy is located, and the adjacent parish of St. John the Baptist, contain a labor force that is approximately 39 percent Black.

In 1969, yielding to pressure from the federal government, Kaiser adopted a policy of hiring “at the gate” on a one-to-one Black to White ratio. This new policy increased the number of Blacks on the payroll, but only to 14.8 percent, still substantially below the number of Blacks in the labor force of the surrounding community.

The employment of Blacks in skilled craft positions was even more disproportionately low. Prior to 1974, only five of approximately 290 skilled craftsmen at the Gramercy plant were Black. One of the reasons for this poor showing was because Kaiser hired only experienced craft workers from outside the plant, and required all applicants for its limited in-house crafts training program to have prior craft experience. Because of the history of exclusion of Blacks from craft positions and the lack of opportunity for unskilled workers to gain craft experience or training on the job the inevitable consequence of Kaiser’s hiring policy was to insure that its skilled craft work force was almost exclusively White.

In 1974 Kaiser and the United Steelworkers, whose function is to champion the rights of union members and influence management during labor negotiations, entered into a voluntary pact known as the 1974 Labor Agreement. The purpose of the agreement was to correct racial imbalance in the work force and insure that a proportionate number of Blacks entered skilled craft jobs in the Gramercy plant. The agreement not only specified wages, hours of work, employment conditions, etc., but contained a provision that “[a]s apprentice and craft jobs are to be filled … at a minimum, not less than one minority employee will enter for every non-minority employee entering until the goal [of 39 percent minority representation in each craft family] is reached unless at a particular time there are insufficient available qualified minority candidates.” The goal of 39 percent was established because it was the percent of Blacks in the surrounding labor force from which the great majority of Gramercy’s employees were hired.

Shortly after the 1974 Labor Agreement was implemented, Kaiser opened bids for on-the-job training in the craft families of instrument repairman, electrician and general repairman. The terms of the agreement were faithfully followed and for each craft family at least half of those chosen as trainees were Black. But inevitably, in

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each instance, White applicants who had more seniority than the Blacks selected were passed over. One of those who missed out was Brian Weber.

Weber, a White man in his early thirties, went to work at the Gramercy plant in 1969. His present job is that of an unskilled laboratory technician. Like many others at the Gramercy plant, Black and White, he would like to improve his job and income by participating in one of the company’s on-the-job training programs for skilled craftsmen. When his application was rejected, he and other excluded Whites filed a lawsuit against Kaiser and the Steelworkers. They contend that the 1974 Labor Agreement establishes an unlawful racial quota and discriminates against Whites.

Weber’s specific charge is that the minority quota contained in the 1974 agreement violates the nondiscrimination provisions of the Civil Rights Act of 1964. Title VII of the Act prohibits in broad and general terms all employment discrimination based on race, color, religion, sex or national origin in industries affecting interstate commerce. More particularly, the Act prohibits discrimination on the basis of race against any person in any apprentice or training program.

It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.

The company and the union argue that affirmative action is not unlawful discrimination and that federal laws, including Title VII and Executive Order No. 11246, either require or permit employers to take voluntary measures to insure that Blacks are adequately utilized in the work force. The 1974 Labor Agreement, they say, is nothing more than an attempt to live up to their obligations under the law.

Kaiser had every reason to believe it had not been living up to the law in the past. Its underemployment of Blacks as skilled workers – 5 of 290 – coupled with the fact that the total work force at Gramercy prior to 1974 was only 14.8 percent minority, was enough standing alone to establish a prima facie case of discrimination. In addition, the hiring procedure in effect at Gramercy with its prior experience requirement was the same one in effect at the company’s nearby plant at Chalmette. The Chalmette procedure was challenged by Blacks in 1966 and was eventually held by the Fifth Circuit to be racially discriminatory in effect. Under the circumstances, Kaiser was well aware that it was sitting on an employment discrimination suit just waiting to be brought.

Kaiser was also aware of how expensive an employment discrimination case could be, especially if it was lost. A third Kaiser plant in Baton Rouge was sued by minority workers in 1967. The suit was eventually settled by a consent decree, but it cost Kaiser more than a quarter of a million dollars in back pay to various class members.

Aside from suits from its own employees, Kaiser feared reprisals from the federal governinent, with whom it was doing business. Executive Order No. 11246 requires all applicants for federal contracts to refrain from employment discrimination and to “take affirmative action to insure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin.” The order empowers the Office of Federal Contract Compliance (OFCC) to cancel or suspend all of a non-conforming company’s government contracts, and to require all federal agencies to refrain from entering into future contracts with any company found to be “nonresponsible.”

Termination of federal contracts was not a vague, unfounded fear of Kaiser’s. In 1971 OFCC undertook a full scale review of the company and made general findings of discrimination in the hiring of craft workers at the Gramercy plant. OFCC at that time recommended that Kaiser establish a training program in which half of the trainees would be minority workers. These findings were confirmed two years later in a subsequent report by OFCC in which it found that Kaiser had engaged in discrimination by waiving its prior craft experience requirement for Whites, but not for minorities.

Kaiser knew too that the federal government was investigating claims of racial discrimination by nine major steel producers in the United States. Following intensive negotiations, the government eventually filed suit against the Steelworkers union and the producers. At the same

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time, two consent decrees were filed which provided for one-to-one hiring basically similar to the plan adopted at the Gramercy plant. The consent decrees did not come cheaply. The price tag to the nine steel companies was a back fund for minority employees of more than $30 million. From Kaiser’s perspective, doing everything it could to head off employment discrimination charges and the loss of lucrative government contracts was more than good business. It was economic survival.

The lower federal courts ruled against Kaiser and the Steelworkers because they found, incredibly enough, that no discrimination had been practiced at the Gramercy plant. As a consequence, the “racial quota,” said the Court of Appeals, “loses its character as an equitable remedy and must be banned as an unlawful racial preference prohibited by Title VII.- The Court also found it beyond the power of the company and the union to use affirmative action to correct discrimination practiced by society at large. “it is appropriate to draw the line for application of restorative justice at the Gramercy plant, rather than at the larger universe of all Kaiser operations or indeed about society at large.”

How could the courts have found no discrimination by Kaiser at the Gramercy plant in view of the OFCC investigations and reports, the statistical disparities between Kaiser’s work force and the community labor pool, and the adverse impact of the company’s procedures for hiring skilled craftsmen? Quite simply, because most of that evidence was based on the testimony of two of Kaiser’s own personnel officers. They said the company did not discriminate.

One of the ironies of Weber, given its potential impact upon racial minorities, is that it is essentially a collusive suit between Whites. The suit is collusive, not because it was fraudulently brought, but because none of the parties to it adequately represented minority interests.

Weber, of course, has never wanted to prove discrimination by Kaiser, since to do so would. undercut his very argument that the preferential hiring system is arbitrary and unnecessary. The company, in view of its liability under Title VII and its concern over loss of federal contracts, had no reason at all to admit that it discriminated on the basis of race at the Gramercy plant.

The union, which has the duty of representing all workers, including of course minority workers, had no interest in proving racial discrimination for fear of exposing itself to liability for breach of its duty of fair representation.

Thus, each of the parties to the lawsuit had good reasons not only not to prove racial discrimination, but to deny that it ever existed at all. Predictably, the courts found “no discrimination” and no justification for the affirmative action plan.

The kind of non-adversary fact finding on the question of racial discrimination that took place in Weber, regardless of the motives of the parties in that case, is an open invitation to manipulation of anti-discrimination laws. Employers facing employment discrimination difficulties might be tempted to promulgate voluntary plans with the hope that they would be challenged by White workers. In such a challenge, since no party would be motivated to offer proof of discrimination which occurred, the court would, as happened in Weber, enter a finding of “no discrimination.” It would be difficult, if not impossible, for any minority worker thereafter successfully to challenge the employer’s discriminatory policies. To allow employers, unions, and White workers thus to adjudicate the interests of Blacks totally in the tatter’s absence raises serious questions about the integrity and reliability of the judicial process.

If the Supreme Court nonetheless affirms in Weber, and concludes that affirmative action depends upon an express finding of past discrimination, as opposed to the reasonable apprehension of an emplover that it is vulnerable to charges of discrimination, then it will have dealt a crippling blow to voluntary compliance with employment discrimination laws. If the remedial plan is less than it should be, employers will still be liable to minorities in private lawsuits and to the federal government in pattern and practice suits and enforcement proceedings brought by OFCC. If, however, the remedy provides too much, then the employer will be liable in Weber-type suits to White employees who contend that the remedial action is in reality an unlawful preference. Unless the employer hits precisely upon a plan which would be approved by a federal court, it proceeds with affirmative action at its peril. Under the circumstances, most employers will do nothing but sit back and wait to be sued. The result will be less, much less, elimination of discrimination in employment.

The Supreme Court has never ruled directly on the lawfulness of racial quotas in employment, but it has generally approved of color conscious relief, either taken voluntarily or pursuant to a judicial finding of discrimination. It has routinely used Black-White student “ratios” in formulating remedies for school segregation; has allowed states and their political subdivisions voluntarily to take race into account in drawing district voting lines to insure minority participation in politics and to remedy the continuing effect of past discrimination; and in 1976, ruled that granting fictional seniority to minority victims of employment discrimination did not discriminate against White workers.

In the latter case, the court held that even though the economic expectations of arguably innocent Whites might be diminished by the grant of seniority, to allow that fact to defeat relief would undermine the central purposes of employment discrimination legislation to

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eliminate the continuing effects of discrimination. As for the lower federal courts, they have widely approved quota remedies for employment discrimination, including those voluntarily adopted pursuant to Executive Order No. 11246.

The most recent case from the Supreme Court involving racially conscious remedial action is that of Allan Bakke, a White male whose application to the medical school of the University of California at Davis had been rejected. Bakke claimed that the medical school’s voluntary, special admissions program, which set aside 16 of 100 entering seats for “disadvantaged,” non-White students was reverse discrimination against him on the basis of race and was unconstitutional and in violation of Title VI of the Civil Rights Act of 1964.

The Court announced its opinion on June 28, 1978, the last day of the term. The decision was both complex and narrow, and left unanswered as much as it decided. A major problem in interpreting Bakke is that there were six separate opinions.

The justices fell generally into two camps. Brennan, Marshall, White and Blackmun voted to uphold the special admissions program under both the Constitution and Title VI on the grounds that race may be taken into account, not to demean or insult a racial group, but to remedy disadvantages caused by past racial prejudice.

Four other justices – Burger, Stewart, Rehnquist, and Stephens – voted to strike down the California plan. They believed that race could never be the basis of excluding anyone from participating in a federally funded program under Title VI, but refused to consider whether or not the Constitution ever permitted affirmative action.

The deadlock on the Court was broken by Justice Powell. He agreed with the Brennan wing that race could properly be taken into account under the Constitution and Title VI in remedying past discrimination. But he also agreed with the Burger wing that the California plan was unlawful because it imposed a rigid quota system that excluded applicants solely because of race. As a consequence of the various opinions, the special admissions program was invalidated, Bakke was ordered admitted to medical school and the University of California was allowed to devise a new admissions program “properly … involving the competitive consideration of race and ethnic origin.”

How Bakke will affect Weber remains to be seen. One thing, however, is clear. Weber will not be decided by the full Court. Only seven of the nine justices participated in oral argument and based upon the practice of the Court, only that seven will participate in the decision making.Justice Powell, the balance of of power in Bakke, was recovering from surgery. Justice Stevens, who voted with the Burger wing, absented himself because he had represented Kaiser when he was in private practice. Regardless of the outcome in Weber, because it will be a decision of only seven members of the Court, its value as precedent for future cases will be open to serious challenge.

Judge John Minor Wisdom, the author of many seminal civil rights opinions of the Fifth Circuit and one of that court’s most highly respected members, dissented in Weber. His dissent may well become the basis for the Supreme Court’s decision.

Judge Wisdom argued that the 1974 Labor Agreement should be analyzed, not on the basis of a judicial or other “finding” of actual discrimination, but whether it was a reasonable response of the company and the union to their employment problems. Applying that test, the affirmative action plan would surely be lawful. It was negotiated through the union, which has the obligation in good faith to represent the interests of all workers. Thus, Whites and Blacks were both considered in the bargaining process. As importantly, the agreement had a minimum adverse impact upon Whites. It did not deprive any White worker of a job. Instead, it created entirely new job opportunities for minorities as well as White incumbents. As Judge Wisdom concluded:

[T]he 1974 Agreement was a reasonable response to the situation. The defendants were faced with arguable violations of Title VII, federal government pressure, and the impending steel industry settlement. They created an affirmative action plan which aided all Kaiser employees while particularly assisting minority group members. We should not upset their efforts.

Voluntary compliance is essential to removing discrimination on the job. Neither the government nor private parties have the resources to cure the problem. The court which approved the settlement between the Steelworkers Union and the nine major steel companies, involving some 250 individual plants, estimated that it would have required ten years alone simply to try the liability issue in that case, and that resolution of the remedial issues would have involved over 28 years of trial time.

The Supreme Court has often said that voluntary compliance is the preferred means for achieving nondiscrimination in employment. And indeed it is. Voluntary compliance will eliminate the need for everexpanding state and federal enforcement agencies and reduce demands on the limited resources of the judiciary. It will allow employers and unions to examine and evaluate their own employment practices and take responsible, timely action to correct what remains one of the worst vestiges of our racial past.

Laughlin McDonald is the Southern director of the American Civil Liberties Union Foundation.

The Bolden Decision Stonewalls Black Aspirations

By Laughlin McDonald

Vol. 2, No. 8, 1980, pp. 11-17

The Supreme Court’s latest voting rights decision, City of Mobile v. Bolden(April 22, 1980), is bad news for Blacks. The Court held that no system of elections could be attacked on racial grounds, even one such as Mobile, Alabama’s, which has the effect of totally excluding Blacks from office, unless it could be shown that it was adopted, or was being maintained, for the express purpose of discriminating against minorities. The Court also set up standards for proving “purpose” which are all but impossible to meet. The effect of Bolden will be to give new respectability to old-style, White-only politics in the South and bring to a halt the modest gains in Black office holding of the last decade.

Mobile, built around the rim

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of Mobile Bay, 31 miles north of the Gulf of Mexico, is Alabama’s second largest city and only seaport. It was founded in 1702, and retains today a distinctive blend of the traditional and the modern. It is the home of the famed Azalea Trail, 35 miles of streets that in the spring of the year wind through blossom-strewn bay area neighborhoods and suburbs. It is home too of the Bankhead Tunnel beneath Mobile Bay, an engineering marvel of its day and the first underwater traffic tube ever built in the South.

There are some accommodations to modern times, however, which Mobile has declined to make. One of those is to the rights of Blacks to participate equally with Whites in city politics. Although 35 percent of Mobile’s nearly 200,000 residents are Black, no Black has ever won an elective city office. This exclusion is the result of Mobile’s use of at-large voting for election of its three-member City Commission.

Where voting is at-large, as in Mobile and thousands of other jurisdictions in the South, all the voters elect all office holders. By contrast, where voting is by districts, only the voters in each district elect their own representatives. District voting allows for the creation of majority Black districts capable of electing minority candidates, even in jurisdictions which as a whole are majority White and where severe race relations cause voting to be strictly along racial lines. At-large voting, however, submerges concentrations of Black population in the White majority, neutralizing, or diluting, minority voting strength. Whites, quite simply, can out vote Blacks, assuring that minority candidates never hold political office. That is exactly what has happened in Mobile.

The exclusion of Blacks from politics was not accidental, nor the result of the normal give and take of politics. It was carefully planned. After Reconstruction ended in 1877, and federal troops were withdrawn, the Southern states set about systematically to take the vote away from Blacks and reduce the Fifteenth Amendment to dead letter law. The main work of disfranchisement was accomplished through a series of state constitutional conventions. Mississippi held the first in 1890, and Alabama followed with its own in 1901. The stated purpose of the convention was “the absolute disfranchisement of the Negro as a Negro.” One delegate who addressed the Alabama convention caught precise-

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ly the mood of the assembled legislators. With rhetorical embellishment he declared, “It is our purpose, it is our intention, and here is our registered vow to disfranchise every Negro in this state and not a single White man. ”

The Alabama convention adopted a two stage program. The initial measures included a grandfather clause for veterans and their descendants, allowing most Whites to register without meeting other requirements, and a so-called good character test. The permanent plan, which went into effect on January 1, 1903, included a poll tax, a literacy test, and education, employment, and property qualifications for voting. Shortly after the convention, the legislature authorized the Democratic Party to conduct all-White primaries, with the result that even those few Blacks who actually got registered were denied the right to vote in the only election in the state that had any meaning.

The impact of these various restrictions was predictable and devastating. Black voter registration began to plummet with amazing swiftness. By 1908, there were only 3,742 Blacks registered to vote in the entire state of Alabama. In Mobile County, the regime of White rule was so firmly reestablished that as late as the end of World War 11, only 275 Blacks were listed on local voter rolls.

A series of Congressional enactments during the 1950s and ’60s, culminating with the Voting Rights Act of 1965, with its ban on literacy tests, was to have changed the complexion of Southern politics. Once Blacks were given the right to register and vote without hindrance, it was assumed they would be able to participate fully and equally with Whites in elective politics. But in places like Mobile, that was not to be.

In spite of greatly expanded Black voter registration, Black candidates consistently went down to defeat at the polls. It soon became apparent to local Blacks that even if every eligible Black in Mobile was registered, and even if every registered Black voted for Black candidates, Blacks would still lose because of deep-seated racial division and at-large voting.

After years of frustration, a group of Blacks in Mobile brought a lawsuit in 1975 in the federal district court charging that at-large elections denied them the right of equal political participation and diluted their voting strength in violation of

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the Fourteenth and Fifteenth Amendments, and §2 of the Voting Rights Act of 1965. They based their legal claims primarily upon a 1973 court of appeals decision, Zimmer v. McKeithen, which held that at-large voting is unconstitutional where the political process is not equally open to Blacks and they have less opportunity than Whites to elect representatives of their choice.

Specifically, Zimmer said that dilution could be shown by proof of such things as: a history of official racial discrimination, particularly in registering and voting; a disproportionately low number of minority-group members elected to office; a lack of responsiveness on the part of elected officials to the needs of the minority community; depressed socio-economic status of minorities; majority-vote requirements; tenuous policy favoring at-large voting; lack of access to-candidate slating by minorities; large district size; lack of residential requirements for candidates and anti-single shot voting laws. Later appeals court decisions made it clear that discriminatory purpose was necessary for a constitutional violation, but that proof of the factors in Zimmer was enough to show invidious purpose in the use of at-large voting.

The Mobile plaintiffs proved most of the Zimmer factors -“massive official and private discrimination,” no Blacks elected to office, lack of responsiveness by city government, etc. As a consequence, the district court found at-large elections for the City Commission unconstitutional under the Fourteenth and Fifteenth Amendments and ordered them replaced with district voting.

The city appealed. It pointed out that Mobile had adopted at-large elections in 1911. Since Blacks had been disfranchised by that time, the motive in choosing at-large voting could not, the city argued, have been racially discriminatory. The city also contended that it was under no duty to insure proportional representation for any racial group and that the remedy imposed by the district court in abolishing the commissioner form of government exceeded the powers of the court.

The court of appeals upheld the district court in 1978. It acknowledged that proof of intent to discriminate was required in litigation under both the Fourteenth and Fifteenth Amendments. It concluded, however, that even an innocently formulated election plan could be maintained for the purpose of diluting Black voting strength, and, if the aggregate of Zimmer factors were shown, as they had been in Mobile, proof of discriminatory intent was made out.

The city appealed to the Supreme Court. The case was argued in March, and again

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in October, 1979, and was decided on April 22, 1980. The Court reversed and sent the case back to the court of appeals for further consideration.

Since the law of dilution had so recently been approved and applied by the Supreme Court in a 1973 case, White v. Regents, most observers assumed that if there was reversal in Bolden, it would be because the remedy imposed by the lower court abolishing Mobile’s form of government was too extreme, and that the underlying law of dilution would not be changed. But that was not to be. The case was decided very nearly in the worst possible way for the Black plaintiffs.

There were six opinions in Bolden: a plurality decision by Justice Stewart, joined by Burger, Powell, and Rehnquist; separate concurring opinions by Stevens and Blackmun; and dissenting opinions by Marshall, Brennan and White. The critical opinion, and the one which controlled the outcome of the case, was that of the plurality. It held that the Mobile challenge could not be based on the Fifteenth Amendment, since it protects only the right to register and vote without hindrance, and not the right to have the vote count. To reach that conclusion, the plurality had to ignore prior Supreme Court decisions invalidating discriminatory procedural requirements for exercise of the franchise, even though the abstract right to vote, as in Mobile, was unimpaired. Cases as early as 1915 had held that “the right to have one’s vote counted” was of equal importance as “the right to put a ballot in a box.” Accordingly, such practices as ballot box stuffing had been found unlawful, as well as the all-White primary, even though Blacks had full access to the ballot for general elections.

As for the Fourteenth Amendment claim, the Court said plaintiffs must show that Mobile’s at-large voting was conceived or operated as a purposeful device to further racial discrimination. The Zimmer factors were most assuredly insufficient to prove an unconstitutionally discriminatory purpose.” Purpose could be shown by proof that at-large voting was adopted or maintained, “in part ‘because of,’ not merely ‘in spite of,'” its adverse racial effects. The plurality, in a terse and oblique analysis, found Bolden to be “consistent” with White v. Regents.

Stevens, the newest justice on the Court, wrote a concurring opinion that was extraordinary. For him, an election plan would be unconstitutional only if it was totally irrational or entirely motivated by a desire to discriminate. Thus, the adoption of at large voting for the express purpose of excluding Blacks from office would nevertheless be constitutional if there was any additional legitimate reason for its use. “I believe we must accept the choice to retain Mobile’s commission form of government as constitutionally permissible even though that choice may well be the product of mixed motivation, some of which is invidious.”

Stevens is the first Supreme Court Justice in modern times to rule that the Constitution tolerates a certain amount of racial discrimination. If his position is adopted by a majority of his brethren, the present court, assembled in largest part by Richard Nixon, will have virtually repealed the Fourteenth and Fifteenth Amendments.

The case was sent back to the court of appeals to determine whether the Black plaintiffs could meet their new burden of proof. The plaintiff’s Voting Rights Act contention was not definitively ruled on, although four of the nine justices indicated that its effect was no different from that of the Fifteenth Amendment. Whether the plaintiffs can show invidious purpose, or whether they will prevail on their argument that the statute prohibits use of election procedures that have only discriminatory effect, remains to be seen.

Bolden, with its requirement of a smoking pistol, places all but impossible burden upon those challenging racially discriminatory election procedures. Since invidious intent can no longer be shown by past discrimination and its continuing effects, only those challengers will win, presumably, if they catch elected officials making overtly racial defense of at-large voting. None but the innocent or, apparently, Supreme Court justices, can expect that to happen very often. Public officials, especially those who are sued and are represented by counsel, rarely admit to racism. Bolden means that Blacks in jurisdictions which use at-large voting—including most Southern cities, counties and school boards

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—will be denied any remedy for exclusion from office.

There is no question that at-large voting in majority White jurisdictions means no Black elected officials, except in those few cases where a particular Black candidate is able, against all the odds, to put together a winning coalition. In Georgia for example, which is about 26 percent Black, only 16 Blacks held elected office on county governing bodies, about three percent of all office holders. Not only is the absolute number quite small, but of the 18 Black county officials, practically all were elected from majority Black counties or voting districts. Blacks in Georgia’s majority White counties or districts, for all practical purposes, cannot get elected to office. The figures for other offices, such as city councils and school boards, are as bad or worse. Fifteen years after abolition of the literacy test and massive Black voter registration, at-large voting continues to shut Blacks out from equal participation in elective politics in Georgia and elsewhere in the racially polarized South.

The pernicious effects of Bolden extend far beyond the exclusion of any particular candidates from office. It deprives the entire Black community of the chance effectively to redress the problems of racial discrimination through normal political channels. When a Black sits on a city council and helps decide who will be the new city clerk or police dispatcher, the chances of a Black applicant being considered and actually hired are dramatically improved.

When Blacks participate in the decision about where to pave streets, chances are sharply increased that the dirt road in the long neglected Black section of town will get resurfaced. There is a growing consensus among Southern Blacks, in fact, as evidenced by the large number of voting rights cases brought since the early 1970s, that the whole range of discrimination related problems, in housing, services, employment, etc. can best be remedied through equality of political participation. Bolden brings to a halt this transfer of political power brought about by Zimmer and other vote dilution cases. It stonewalls the legitimate demands of the Black community.

The decision is a veritable prescription for litigation and an ever expanding civil rights enforcement bureaucracy. Minorities, denied access to local political power as a means of bringing about change, will now be forced to take each and every one of their discrimination claims to court or to a federal agency for redress. Such a result is a profligate use of the scant resources of the minority community, and an unnecessary burden upon the judiciary and the national government.

Bolden will have other effects independent of governmental responsiveness, and ominous in their implications for race relations. By refusing to recognize the intrinsic value of equal political participation and protect it, the Court has sown the seeds of contempt for the lawful processes of the courts and elective politics. Marshall, the only Black ever to sit on the Court, made just that point in a stinging dissenting opinion: “If this Court refuses to honor our long-recognized principle that the Constitution ‘nullifies sophisticated as well as simple-minded modes of discrimination,. . . it cannot expect the victims of discrimination to respect political channels of seeking redress.”

Congress has the power to remedy Bolden by enacting legislation declaring voting procedures which have racially discriminatory effect are unlawful, regardless of their purpose. An example of the exercise of that power is §5 of the Voting Rights Act of 1965, which requires “covered” jurisdictions, including most of those in the South, to pre-clear changes in voting procedures with the Department of Justice or the federal courts in the District of Columbia to make certain they do not have the purpose or effect of discriminating against minorities. Section 5, with its dual purpose or effect standard, is an enlargement of

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the protection of the Fifteenth Amendment which according to the Bolden plurality, prohibits only purposeful discrimination. The statutes were found to be constitutional by the Supreme Court in 1966 shortly after their enactment and were more recently upheld in a case decided the same day as Bolden. The Court states in City of Rome v. United States: “(Section 5’s) ban on electoral changes that are discriminatory in effect is an appropriate method of promoting the purposes of the Fifteenth Amendment even if it is assumed that §1 of the Amendment prohibits only intentional discrimination in voting.”

There is also recent precedent for action by Congress to remedy the effects of regressive Supreme Court decision making. In Alyeska Pipeline Service Co. v. Wilderness Society, the Court disallowed awards of attorneys’ fees to prevailing plaintiffs in civil rights lawsuits. Congress responded by enacting in 1976 the Civil Rights Attorneys Fees Awards Act, making the entitlement of prevailing parties to fees a matter of statutory right.

It would be a relatively simple matter mechanically to draft legislation remedying Bolden. Section 2 of the Voting Rights Act of 1965, a general prohibition of unlawful voting practices which four of nine present Supreme Court justices say prohibits only purposeful discrimination, could be amended to read:

No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any, State or political subdivision which has the purpose or effect to deny or abridge the right of any citizen of the United States on account of race or color…

Accompanying legislative history could make clear that Congress was acting in light of Bolden to render unlawful election schemes such as Mobile’s which have the effect, regardless of their purpose, of denying equal access by Blacks to elective office.

If amendment could be accomplished during the next session of Congress, Bolden would prove to be an opportunity, and not simply a crisis.

Laughlin McDonald is executive director of the Southern Region office of the ACLU in Atlanta.

Voting Rights in Edgefield County

By Laughlin Mcdonald

Vol. 6, No. 3, 1984, pp. 13-14

Edgefield is a small, rural county in South Carolina, lapped along its western boundary by the stately Savannah River. Local residents work on farms, pick the peaches that ripen each year in the hard, often savage, heat of early summer or drive to nearby Aiken and Augusta for regular city jobs. The principal town and county seat is also called Edgefield. On most days it appears deserted, except for a granite monument in the middle of the town square that keeps a mute but perpetual vigil for the Confederate dead. A handful of stores just off the square advertise U-Need-A-Biscuits, dry goods and second-hand shoes. The trade, however, is indifferent.

Across the way stands the historic old courthouse, the shutters drawn tightly against its graceful floor-to-ceiling-length windows. Upstairs in the quiet and musty chamber of the main courtroom, faded photographs and oil paintings of Edgefield’s most famous native sons hang from the walls in solemn and numerous procession–Thomas Hugh Wardlaw, the author of South Carolina’s Articles of Secession, Preston Smith Brooks, the Congressman who knocked Massachusetts Senator Charles Sumner insensible to the floor of the Senate with a gutta percha cane for making an anti-slavery speech and unfavorable comments about a favorite uncle, General Martin Witherspoon Gary, the famed “Bald Eagle of the Confederacy,” B. R. “Pitchfork Ben” Tillman, a reconstruction era terrorist who later led the movement for “legal” disfranchisement of South Carolina blacks, ten governors, any number of congressmen and judges, and Senator Strom Thurmond, who, during most of his political career, was foremost in the fight for white supremacy and against effective civil right laws.

Edgefield County, taking a chapter out of its rich Confederate past, recently returned to confrontation and open racial controversy when it refused to comply with the Voting Rights Act of 1965 by submitting for preclearance its 1966 law adopting at-large elections. Jurisdictions such as Edgefield which have long, aggravated histories of discrimination in voting are required by Section 5 of the Act to preclear any new election practice, either by submitting it to the Department of Justice or by bringing a law suit in the federal courts for the District of Columbia and proving that the practice does not have a discriminatory purpose or effect. Edgefield refused to do either, despite the fact that the attorney General notified local officials that the county’s at-large elections were unenforceable.

Prior to 1966, Edgefield’s county government was appointed by the Governor upon the recommendation of the local legislative delegation. This system of appointed government had been established throughout the state by Tillman when he was Governor in 1894 as a way of insuring that blacks could not elect locally their own representatives. The appointed system worked just as Tillman envisioned it would–no black ever served on Edgefield’s county government. The appointed system was changed in 1966, however, in part because of reapportionment and the likelihood that Edgefield would lose resident members of its legislative delegation by being paired with a more populous neighboring county.

The new form of government established for Edgefield in 1966 was a three member council elected at-large. Although the new procedures were clearly covered by Section 5, the county made no effort to comply with the Voting Rights Act. Blacks subsequently ran for the county council on numerous occasions, but because a majority of Edgefield’s voters are white, and because voting is strictly

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along racial lines, no black was ever able to win a council seat. Indeed, no black in this century has ever won a contested at-large election in Edgefield.

In 1971 Edgefield amended its 1966 law to enlarge the county council from three to five members. This time it requested the Attorney General to approve the voting change. It did not, however, request preclearance of the earlier 1966 legislation, nor did it indicate that at-large elections were a post-Voting Rights Act election change nor that an appointed system of local government had ever been in effect. The Attorney General, after reviewing the increase in size of the council, concluded that it did not have a discriminatory purpose or effect and granted preclearance.

In December of 1980, blacks in Edgefield learned for the first time that the county was using at-large elections illegally after a search of documents by the Department of Justice turned up the fact that the 1966 Act had never been submitted for review, and after the Attorney General wrote local officials a formal “please submit” letter. When the county refused to make a submission, a group of local blacks brought suit asking that the federal district court enjoin any further use of at-large voting until the county complied with the Voting Rights Act.

The district court dismissed the Edgefield County blacks’ complaint, concluding that the Attorney General–despite his assertions to the contrary,–had in fact precleared the 1966 Act, and, moreover, that the legal effect of -preclearing the 1971 increase in size amendment was to preclear the underlying 1966 Act adopting at-large elections. On February 21, 1984 a unanimous U.S. Supreme Court disagreed and reversed. McCain v. Lybrand, 104 S. Ct. 1037 (1984).

The Court held that the Attorney General had not considered and precleared at-large elections in Edgefield County when he precleared the increase in size of the council in 1971, and that there was no such thing as constructive, or legally implied, preclearance. According to the Court, the Voting Rights Act requires that covered jurisdictions submit their election law changes to the Attorney General “in some unambiguous and recordable manner…with a request for his consideration pursuant to the Act.” Edgefield had done neither.

Edgefield has not been alone in failing to comply with the preclearance requirements of Section 5. From 1965 through 1968, neither Mississippi, Louisiana nor North Carolina submitted a single voting change for Section 5 review. Alabama submitted one in 1965, but none for the next three years. Georgia made only one submission during the first three years of the Act, and Virginia made none. Submissions have increased sharply in recent years (the current rate is approximately 1,000 submissions a month from all covered jurisdictions), but surveys by the Department of Justice, the Southern Regional Council and others reveal that Section 5 jurisdictions are still using hundreds of uncleared voting practices, such as Edgefield’s at-large elections.

The Supreme Court’s decision in the Edgefield County case closes a possible loop hole to the many jurisdictions which continue to violate Section 5. No longer can they claim that once they precleared any amendment to an unsubmitted voting practice, the unsubmitted practice itself was also precleared by implication. A contrary ruling would have allowed covered jurisdictions to play a kind of shell game with Section 5 by enacting innocuous amendments to fundamentally discriminatory voting practices, and contending that preclearance of the former constituted approval of the latter.

McCain v. Lybrand may be a break with the racial and political traditions to places such as Edgefield where blacks have been excluded from the electorate and where the Voting Rights Act has been ignored, but it is a positive step in the direction of enforcing the Fifteenth Amendment and realizing its promise of equal political participation for all citizens.

Laughlin McDonald is director of the Southern Regional Office of the American Civil Liberties Union.

The Attack on Voting Rights

By 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

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its 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

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give 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.

Uneasy Victories in the Supreme Court

By Laughlin Mcdonald

Vol. 8, No. 3, 1986, pp. 15-18

During the 1985-1986 term, the Supreme Court decided eight major race discrimination cases. Four involved employment discrimination and affirmative action, three involved jury selection and the seventh voting rights. In all eight, the basic positions (if not the specific remedies) advocated by minorities prevailed, while the restrictive interpretations of civil rights law urged by the Reagan Department of Justice were decisively rejected.

In the first of the employment cases, Wygant v. Jackson Board of Education, the Court held that a school board could not lay off non-minority teachers with more seniority than minority teachers who were retained as part of an affirmative action plan. The Court reasoned that “layoffs impose the entire burden of achieving racial equality on particular individuals, often resulting in serious disruption of their lives. The burden is too intrusive.” Although minority teachers were denied a measure of protection in Wygant, the decision as a whole was a victory for affirmative action.

First, the Court indicated that race-conscious affirmative action plans, including the use of hiring goals, are constitutional as part of the nation’s commitment to eradicating racial discrimination. Second, the Court rejected the Department of Justice’s suggestion that affirmative action must be limited to

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specific, identifiable victims of past discrimination. Since it is often impossible to prove which particular minority would have been hired in the absence of discrimination, the adoption of government’s position would have meant the end of meaningful affirmative action. Third, an employer can justify an affirmative action plan by showing a reasonable basis for concluding such a remedy is appropriate; an employer need not have, in fact, discriminated in the past.

In Sheetmetal Workers v. EEOC, the Court, building upon Wygant, held that an affirmative action plan to increase minority membership in a union could be required in cases of “persistent or egregious discrimination” or where necessary “to dissipate the lingering effects of pervasive discrimination.” In the third employment discrimination case, Firefighters v. City of Cleveland, the Court upheld a voluntary affirmative action plan to hire minority firefighters even though it may have provided broader relief than a district judge could have ordered after a trial.

Finally, in Bazemore v. Friday, the Court ruled that the North Carolina Agricultural Extension Service had a duty to eradicate salary disparities between white and black workers, even though the disparities had their origin prior to the time federal anti-discrimination laws were made applicable to public employers.

The Court’s employment discrimination cases are the most significant setback to date for the Reagan Administration’s five and-a-half year crusade to eradicate hiring goals and restrict relief to the few identifiable victims of discrimination. In rejecting the Solicitor General’s arguments, the Court frequently used strong language accusing the government of “misconceiving” controlling legal principles and “twisting” the meaning of applicable statutes. The rulings of the Court suggest that the Department of Justice under its present leadership has lost much of its institutional credibility, and that its arguments were viewed as part of a rightwing political campaign rather than as based upon the rule of law.

The Supreme Court also significantly strengthened the protection of minorities in jury selection during the last term. In Batson v. Kentucky, it held for the first time that a prosecutor’s use of peremptory challenges to strike black jurors in a particular case violated the Fourteenth Amendment. The law prior to Batson had been established, ironically enough, in a case decided during the years that Earl Warren was Chief Justice, Swain v. Alabama. Swain held that a prosecutor’s use of peremptory challenges was immune from judicial review, except were blacks were removed in “case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be.”

The Swain standard, which was all but impossible to meet, had been increasingly criticized by legal commentators, while a number of lower courts had circumvented the decision by ruling that the use of challenges by a prosecutor to exclude blacks in individual cases violated the Sixth Amendent’s guarantee of a fair and impartial trial or could be prohibited by a court in the exercise of its general supervisory powers. Despite the enlightened trend of dissatisfaction with Swain, the Solicitor General strenuously, and predictably, argued that a defendant could not establish a constitutional violation by showing “only” that blacks were systematically struck from the jury. The argument failed to persuade the Court.

In a second case, Turner v. Murray, the Court held that a capital defendant accused of an interracial crime had a constitutional right to have prospective jurors questioned about their possible racial bias. In the final jury selection case, Vasquez v. Hillery, the Court reaffirmed existing law that the exclusion of blacks from a grand jury was not harmless error, but required a new trial no matter how old the original conviction was.

In the last of the racial discrimination cases, Thornburg v. Gingles, the Court construed for the first time Section 2 of the Voting Rights Act. Congress amended Section 2 in 1982 to provide that voting practices are unlawful if they “result” in discrimination. Prior to 1982, an election law could only be invalidated if minority plaintiffs showed that it was adopted or was being maintained with a discriminatory purpose. The Court not only affirmed the constitutionality of Section 2, but significantly simplified the test for determining if an election plan using at-large voting was unlawful.

According to the Court, an apportionment plan violates Section 2 by causing impermissible vote dilution if the plan permits a bloc-voting white majority usually to defeat the candidates supported by a politically and geographically cohesive minority. Factors such as a lingering history of discrimination, racial campaign appeals, a depressed minority socioeconomic status, etc., which Congress had indicated in the legislative history were relevant to a vote dilution claim, were held by the Court to be supportive of, but not essential to, a Section 2 violation.

The new test adopted by the Court to measure vote dilution based on race is analogous to the one-person one-vote formulation that measures vote dilution based on population inequality. Both focus on racial patterns in election returns and in census data. Both avoid excesive investigation into historical and social factors and contain readily ascertainable standards for the lower courts to apply.

Thornburg also held that plaintiffs were not required to show that white voters were voting purposefully to exclude minorities from office to establish bloc voting, and that the election of a token or minimal number of blacks could not be used to defend an appointment plan which worked usually to dilute the minority vote. The latter ruling was a specific rejection of the Solictor General’s argument in the case that Section 2 protected only token–not equal–minority political participation.

Despite the fact that the Court as a whole reiterated its commitment to racial equality this term, there was a significant degree of division among the individual justices. Seven of the eight discrimination cases were ideologically polarized, i.e., Brennan and Marshall (the left wing of the court) voted together and took a different position from that of Burger and Rehnquist (the right wing of the court) on one or more major issues. (See Table I)

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Table I: IDEOLOGICAL POLARIZATION IN RACE DISCRIMINATION CASES

JUSTICE	BRENNAN/MARSHALL	%	BURGER/REHNQUIST	%
Stevens	7	100	0	0
Blackmun	7	100	0	0
Powell	3	43	4	57
White	3	43	4	57
O’Connor	3	43	4	57

The margin for victory for civil rights resulted from the consistent support of the Brennan/Marshall position by Stevens and Blackmun, and the inability of Burger and Rehnquist to hold the votes of White, Powell, and O’Connor more than about half the time.

The importance of the White/Powell/O’Connor bloc can be seen from the fact that these three justices were more frequently in the majority than any other members of the Court. As Table II shows, O’Connor voted with the majority 89 percent of the time, and Powell and White 75 percent of the time. Burger and Rehnquist voted most frequently in the minority. (See Table II)

Table II: JUSTICES MOST FREQUENTLY IN MAJORITY OR MINORITY*

JUSTICE	MAJORITY	%	MINORITY	%
Brennan	7	70	3	30
Marshall	7	64	4	36
Stevens	7	70	3	30
Blackmun	7	70	3	30
Powell	6	75	2	25
White	6	75	2	25
O’Connor	8	89	1	11
Burger	4	50	4	50
Rehnquist	3	37	5	63
*This table treats opinions in which a justice concurred in part and dissented in part as both a majority and a minority opinio

Brennan, the senior exponent of the Court’s liberal philosophy, was suprisingly influential on the term’s discrimination cases. He wrote four of the eight majority opinions and was more frequently aligned with the other justices than any other member of the Court. As Table III shows, Brennan, Marshall, Blackmun, Stevens and Powell voted together at least half of the time. None of the other justices approached that level of agreement. (See Table III)

Table III: VOTING ALIGNMENT IN RACE DISCRIMINATION CASES 1985-1986 TERM*

JUSTICE	BRENNAN	MARSHALL	STEVENS	BLACKMUN	POWELL	WHITE	O’CONNOR	BURGER
Marshall	88%
Stevens	63%	25%
Blackmun	50%	25%	13%
Powell	50%	13%	13%	13%
White	38%	13%	13%	13%	25%
O’Connor	38%	0%	0%	0%	38%	25%
Burger	13%	0%	0%	0%	25%	13%	13%
Rehnquist	13%	0%	0%	0%	38%	13%	13%	38%
*To determine the frequency of agreement, the number of times two members of the Court voted together was divided by the eight race discrimination cases decided by the Court in which both justices participated. Justices were considered voting together only if they joined the same opinion, concurrence or dissent. Although justices occasionally voted together more than once in a given case, their alignment under such circumstances was given a value of 1.

The term’s racial discrimination cases do not, of course, provide a full picture of the Court’s general treatment of civil and constitutional claims. They also fail to show the Court’s gross disregard for the rights of politically more vulnerable minorities, such as gays and Orthodox Jews. In Bowers v. Hardwick, for example, the Court ruled that the Constitution affords no protection from criminal prosecution to gays who participate in homosexual acts in the privacy of their homes. In another case, Goldman v. Weinberger the Court held that the military could forbid an Orthodox Jew from wearing a yarmulke, despite his sincere

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religious beliefs and the lack of any service-related need.

A court that turns its back on the deeply held beliefs of a religous minority and leaves the regulation of intimate relationships to the whim of a hostile majority, may in the long run provide scant protection for the rights of racial minorities. President Reagan has recently nominated the most ideologically inflexible member of the Court, Justice Rehnquist, to be Chief Justice. He has also nominated Antonin Scalia, another rigid conservative, to fill the vacancy created by the resignation of current Chief Justice Burger. More Reagan appointments would surely tilt the Court significantly to the right, jeopardizing the continued constitutional protection of the Nation’s racial minorities.

Laughlin McDonald is director of the Southern Regional Office of the American Civil Liberties Union Foundation.

The Law.

Reviewed by Laughlin McDonald

Vol. 11, No. 5, 1989, pp. 21-23

Whose Votes Count? Affirmative Action and Minority Voting Rights by Abigail M. Thernstrom (Cambridge: Harvard University Press, 1987. 316 pp. $25. Paperback edition, 1989, $10.95.)

The Voting Rights Act of 1965 has had a profound impact on minority political participation in the South, and increasingly in the nation as a whole. In some jurisdictions registration and turnout of minorities are now equal to those of whites, while the number of minorities elected to office-not simply blacks in the South but Hispanics, Asians, and Native Americans in the North and West-has grown steadily each year. Significant disparities remain but this progress is encouraging, representing as it does the growing fulfillment of the long deferred promises of the Fourteenth and Fifteenth amendments, as well as an increasing national consensus in support of minority political participation.

The Act has always had its critics, of course, but they were usually from the expected quarters. They were mainly disgruntled Southern solons who complained that the legislation was punitive and regionally based, whites whose political and economic control was threatened by voting reforms and those who supported racial segregation and “the Southern way of life.”

Now, ironically, comes Abigail Thernstrom, not a Southern malcontent but a Senior Research Associate at the Gordon Public Policy Center at Brandeis University. Armed with a grant from the prestigious Twentieth Century Fund and the new conservative’s hostility to affirmative action and race-conscious remedies for civil rights violations, she argues in her book, Whose Votes Count?, that the Voting Rights Act has been transformed, wrongly and dangerously, from a law whose “single aim” was to remove blatantly discriminatory barriers to registration and voting into “an instrument for affirmative action…to promote the election of blacks to public office.” She is particularly critical of single member districts, a form of neighborhood or community voting, which she sees as basically a scheme to achieve proportional representation and unfairly protect minority candidates from white competition.

The Supreme Court and Congress disagree with Thernstrom that the Act was concerned only with vote denial. Congress was certainly concerned with the difficulties blacks had in registering, but it was also

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concerned with practices that could dilute the effectiveness of a ballot actually cast.

Congress knew that prior voting rights laws had failed in part because local jurisdictions could always think of new ways to discriminate and stay one step ahead of the federal courts. As soon as a court invalidated an objectionable practice a jurisdiction could, and generally did, simply enact another to take its place. For that reason Congress not only banned such discriminatory practices as the literacy tests for registration, but it provided in Section 5 of the Act that certain “covered” jurisdictions had to preclear any new voting laws with federal officials and demonstrate that they did not have a discriminatory purpose or effect.

In the Supreme Court’s first decision construing the scope of Section 5, in 1969, Allen v. State Board of Elections, a majority of the justices concluded on the basis of the legislative history that Congress intended to require preclearance of all laws enacted by covered jurisdictions which altered election practices in even a minor way, including the adoption of procedures such as at-large elections that could dilute minority voting strength. The Court has applied this standard in every subsequent preclearance case.

Moreover, when Congress extended preclearance in 1970, 1975 and 1982, it discussed and expressly approved the Supreme Court’s interpretation of Section 5. Had Congress felt that the Voting Rights Act had the sole and narrow purpose of eliminating only discrimination in registration, it could have said so and taken corrective action. But it did not.

In concluding her discussion of Allen, Thernstrom does an anomalous and abrupt about face. While she professes not to like its prohibition on vote dilution, she concedes that Allen “was both correct and inevitable.”

Thernstrom is highly critical of the 1982 amendment of Section 2 of the Act in which Congress provided that voting practices, whether or not subject to preclearance and whether or not purposefully discriminatory, are unlawful if they “result” in discrimination. The amendment passed, she says, not on its own merits but because Congress was “slapdash” and “inattentive.” The press was guilty of “distortions” and reported only “partial truths.” The real villains, though, were the civil rights activists who supported the “result” standard. They had a “self-proclaimed moral superiority.” They hewed “to a hard line.” They were “diehards.” They had set out merely “to peddle a product.”

Arrayed against these forces of Congressional, communications media, and civil rights sloth and zealotry was a stable of academics collected by Senator Orrin Hatch to testify at the Senate hearings. According to Thernstrom, they were “distinguished…a balanced and impressive group.” But the “deck was stacked so mightily against” them and against Hatch, that their warning went unheeded that if the result standard were enacted single-member districts would spread “like a blight across the nation.”

The reason Section 2 was amended, and it is a reason Thernstrom generally ignores, is that the case was fully and fairly made in Congress that race is still a factor in American political life and that the result standard was needed to combat continuing discrimination in the electorate. According to Congress, which carefully considered and repudiated the charge, calling the remedial use of single-member districts in racially polarized jurisdictions a blight was “like saying that it is the doctor’s thermometer which causes high fever.” Experience has shown, in fact, that single-member districts, and the black electoral success associated with them, tend to break down racial isolation by bringing minorities into the decision-making process. They also tend to make government at all levels more responsive to minority concerns.

At the end of her book Thernstrom again confronts the hard line of new conservatism and again she flinches, effectively answering her own argument that single-member districts are an unfair form of affirmative action.

She conceded that where ‘racial politics…dominates the electoral process’ and public office is largely reserved for whites, the method of voting should be restructured to promote minority officeholding. Safe black or Hispanic single-member districts hold white racism in check, limiting its influence. And where whites- and often blacks-regard skin color as a qualification for office (in part because no experience suggests otherwise), the election of blacks helps to break both white and black patterns of behavior.

Few civil rights activists would disagree.

Where there is considerable disagreement is in how many jurisdictions are dominated by racial politics. For Thernstrom there are very few. One does not have to be a prophet of racial doom or deny the fact of change, Thernstrom suggests, to appreciate that race is still dynamic in American politics. One should have to be naive to believe that it isn’t.

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The extent of Thernstrom’s naivete shines through in her discussion of South Carolina politics, which she believes is far removed from the racial vulgarities and excesses of other Southern states. South Carolina, she writes, has “an unusual commitment to law and orderly change, stemming perhaps from an aristocratic respect for civility.” As evidence of this, she reports that blacks and whites can be seen standing side by side in Charleston markets picking over the local okra, depicting “a life that in significant ways was shared.” And, she adds, in 1963 “South Carolina governor Donald Russell held an inaugural barbeque that was attended by both blacks and whites.”

Thernstrom would have rendered a more accurate account of the significance of race in South Carolina politics if she had told more about life beyond the imagined intimacies of the okra bin, if she had reported, for example, that Governor Russell, following his inaugural barbeque, became a United States Senator and cast one of eighteen votes in the Senate against the Voting Rights Act of 1965, or that South Carolina led the challenge to the constitutionality of the Act immediately after it was passed, or that modern voting rights cases continue to document extremely high levels of racially polarized voting, or that nearly all of the black elected officials in the state were elected by constituencies in which members of their own race were in the majority. One of the failings of Whose Votes Count? is that, despite being eight years or more in the making, it contains very little original research and relies primarily upon court decisions and interviews, many of which are anonymous and essentially impressionistic.

Thernstrom believes that the ideal electorate is one composed, not of black, brown or white voters as such, but of “a community of citizens.” Most civil rights proponents do, too. Thernstrom, however, apparently thinks a community of citizens is a present day reality and that minorities need only look for the protection of their rights to “the political process left substantially to its own devices.” I cannot imagine anyone even casually familiar with the protracted struggle for civil rights in this country taking that advice, and therefore this book, very seriously.

LAUGHLIN McDONALD is Director of the Southern Regional Office of the American Civil Liberties Union. Perhaps no other attorney has been responsible for as many redistricting cases. (An abbreviated version of this review appeared in Foundation News, May/June, 1989.)

A decade of litigation a Southern ‘Devil’s Island.’

Reviewed by Laughlin McDonald

Vol. 12, No. 2, 1990, pp. 17-19

Reform and Regret by Larry W. Yackle (New York: Oxford University Press. 1989. 322 pp.).

Reform and Regret, by Larry W. Yackle, is an engrossing, carefully written story of two federal lawsuits, Pugh v. Locke and James v. Wallace, filed in 1974 to reform the Alabama prison system. The need for reform was great.

As Yackle describes it, most inmates were warehoused in large, unsupervised dormitories where the strong preyed on the weak. None of the state’s institutions met basic public health standards or the state’s fire safety code. Medical care was grossly inadequate. Inmates were poorly fed, denied adequate exercise and reasonable opportunities to visit with their families, and there were few educational and vocational programs.

The disciplinary unit within Draper Prison epitomized the worst of the system. Inmates in the doghouse, as the disciplinary unit was called, had no beds, no lights, no toilets, no running water, and no reading material. They were fed once a day and allowed to shower only once every eleven days. They were never released for exercise. Each punishment cell was only thirty-two square feet in area–the size of a sheet of plywood. Despite that, as many as six men were crammed into a single cell, for weeks at a time.

The conditions at Draper were not unique. Severe overcrowding was routine throughout the system, as was violence. Rapes and beating were common. There was no system of classification to separate the violent from the nonviolent inmates, and there was a shortage of guards. At Fountain, two officers supervised some 1,000 prisoners. The number of guards was reduced at night with the predictable result that those on duty, for their own safety, never ventured into the dormitories after dark.

“Discipline” was often maintained by the inmates themselves. Prisoners, called “strikers,” supervised inmates on work details and enforced order with hoe handles, broomsticks, and homemade knives. Other prisoners, called “flunkies,” patrolled the dormitories at night and were responsible for breaking up fights. It is not surprising that inmates seemed always heavily armed. According to Yackle, prisoners felt it was better to risk being caught with a weapon by a guard than to chance being caught without one by another inmate.

An Alabama newspaper referred to the state’s prison system as a “Devil’s Island.” Robert Sarver, a former director of the Arkansas Department of Corrections, and an expert witness in the lawsuits, gave an equally damning assessment. Prisons were “very dirty and unbelievably overcrowded.” Prisoners lived in a “veritable jungle,” and on food he could not “attempt” to eat himself. Inmates were like “caged animals” and lived a “demoralizing, debasing, degrading and ultimately destroying existence.”

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The plaintiffs in Pugh and James were inmates who filed their initial complaints pro so, or representing themselves. Jerry Lee Pugh, a 27-year old white male, had been severely beaten during a race riot at Fountain in 1973 and charged that prison officials had failed to afford him adequate protection. Worley James was an eighty-year-old black man who spent more than a quarter-century behind bars. He claimed that prison officials had failed to provide him with adequate medical care and to rehabilitate him while he was in custody.

Fortunately for Pugh and James, their cases were assigned to Judge Frank M. Johnson Jr. in Montgomery, one of the brightest and most activist judges in the federal judiciary. Judge Johnson took the complaints seriously and quickly appointed two local lawyers to represent the plaintiffs. The lawyers in turn agreed to coordinate their efforts and broadened the suits into class actions challenging the operation of the prison system as a whole. They also enlisted the aid of several civil rights organizations–the Southern Poverty Law Center, the Civil Liberties Union of Alabama and the National Prison Project. As a result of this series of events, the pro se complaints of two obscure Alabama inmates were transformed into major public interest litigation.

The plaintiffs made three related, but progressively more ambitious, arguments. First, the Eighth Amendment’s prohibition on cruel and unusual punishment is violated when prison officials maintain conditions that produce a pattern of violence against individual inmates. Second, inmates have a right to rehabilitation, and the maintenance by prison officials of conditions which frustrate that right or cause deterioration is also cruel and unusual punishment. Third, reliance on long-term incarceration with limited parole opportunities in large, secure, rural prisons is itself a violation of the Eighth Amendment. This last claim was clearly the most radical, for it was nothing less than an attack on the traditional American system of incarcerating people for the commission of crimes.

The cases went to trial in the summer of 1975. After six days of devastating testimony, the state conceded that its prison system was in violation of the Eighth Amendment. Judge Johnson ordered certain immediate reforms, such as closing the doghouse at Draper, and issued a full opinion in January 1976. He ruled that the totality of conditions in the prisons constituted cruel and unusual punishment. He also accepted the first two theories of unconstitutionality put forward by the plaintiffs: prison officials had failed in their “duty to provide inmates reasonable protection from constant threat of violence,” and “prison conditions were so debilitating that they necessarily deprive inmates of any opportunity to rehabilitate themselves, or even to maintain skills already possessed.” He declined, however, to rule that the Alabama prison system itself was a violation of the constitution.

The court ordered sweeping changes to bring the system up to constitutional standards. The population of each facility was restricted to “design capacity.” The state was held to the minimum standards established by the U.S. Public Health Service and was ordered to establish a plan for the classification of all prisoners, including identifying and segregating violent inmates. At least one guard had to be stationed inside and one outside each dormitory at all times.

The prison system was required to hire new guards and reduce “the racial and cultural disparity” between the staff and the inmate population. Prisoners had to be given a “bed off the floor” and a minimum of 60 square feet of living space, three square meals a day, “meaningful” jobs and a chance to enroll in basic education courses and vocational training programs.

What followed were years of legal wrangling and foot dragging by the state, which Yackle describes in exquisite detail. There were appeals, modifications of decrees, the appointment of monitors, and numerous compliance hearings. Implementation became so problematical that the court placed the entire prison system in receivership in 1979.

Judge Johnson, who moved to the Eleventh U.S.

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Circuit Court of Appeals, was replaced on the case by Robert Varner, and lawyers, all of whom exceptionally able and dedicated, shuffled in and out of the litigation as it proceeded through its permutations.

The legal maneuvering was accompanied on the political side by fingerpointing and grandstanding by state officials upon whom fell the responsibility of implementing the federal court order. Prison administrators accused the legislature of not appropriating enough money to make needed changes, while the legislature accused prison officials of being inefficient and wasteful. Governor George Wallace, who had castigated the judiciary during the battle over desegregation in the 1960s, charged that “ [sic] thugs and federal judges had “just about taken over society.”

By November 1984, however, as a result of judicial cajoling and coercion, including the actual release of prisoners from overcrowded facilities, enough progress had been made to allow the plaintiffs to enter into an agreement dismissing litigation, subject to being reopened in the event of backsliding by the state. Judge Varner signed the agreement into law and the prison litigation came to an end.

Yackle surveyed the prison system two years later and assessed the extent of reform. Four new prisons and a variety of community facilities had been built which significantly relieved overcrowding. Prison staff had doubled and many of the new correctional officers were black. A system-wide classification system was in operation, and there were greater opportunities to participate in work release and educational programs. The level of violence had dropped substantially. Medical and mental health care were much improved and disciplinary cells were equipped with bunks, mattresses, toilets, and electric lights.

To be sure, the reform was far from complete or adequate, and the cost of even limited reformation had been eleven years of frustrating, bitter litigation. But these are not Yackle’s principal regrets. Rather, they are that “something fundamental had not changed; men and women were still kept in cages, and long enough to ensure that they could never again function as ordinary citizens.”

Regrets, of course, are a function of expectation and the possible. It was probably unrealistic to expect a judge, even one as sensitive to constitutional claims as Frank Johnson, to invalidate the prison system itself. The author might have enhanced our sense of lost opportunities, however, by spelling out in more detail alternatives to the routine use of long-term confinement. There may be better ways for society to deal with people who commit crimes, but Yackle does not tell us what they are. Surely one alternative, and it has nothing whatever to do with penology, is the development of a society that does not breed crime, a society in which those who need decent jobs, housing, and educational opportunities can get them.

Laughlin McDonald is director of the Southern Regional Office of the American Civil Liberties Union and a lawyer who has himself been actively involved in numerous cases involving prisons, noting rights and civil rights.

Black Votes Count

Reviewed by Laughlin McDonald

Vol. 13, No. 2, 1991, pp. 19-21

Black Votes Count: Political Empowerment in Mississippi after 1965. by Frank H. Parker. (Chapel Hill University of North Carolina Press, 1990.)

Black Votes Count, by Frank Parker. is a sinuous but supple account of the efforts to implement the Voting Rights Act of 1965 in Mississippi in the face of a campaign of massive resistance by state and local officials. While the book acknowledges the roots of those efforts in the popular movement of the early 1960s, particularly the historic Mississippi Freedom Summer Project of 1964, this is mainly the story, told by one of the lawyer participants, of the court room battles and how they helped change the complexion of politics in a state that has long been conspicuous for white intransigence and resistance to civil rights.

Mississippi led the way in disfranchising blacks after Reconstruction. Prohibited by the Fourteenth and Fifteenth Amendments from denying the right to vote outright, it held a constitutional convention in 1890 and adopted new stringent, technically legal,” registration requirements (including the literacy test and poll tax) which virtually eliminated blacks from the voter rolls. Other southern states followed suit and adopted the central features of the “Mississippi Plan?

The restrictions on voter registration, administered as they were by hostile whites, worked to perfection. Although blacks were approximately 40 percent of the population in Mississippi, as late as the eve of passage of the Voting Rights Act only 6.7 percent were registered to vote, and there were no more than six black elected officials in the entire state.

The Voting Rights Act abolished the literacy test in the southern states, and blacks predictably began to register in substantial numbers. Mississippi, responding as it had done in 1890 to black political mobilization, enacted thirteen major pieces of legislation in l966 at its regular and special legislative sessions designed to dilute minority voting strength and make it more difficult, if not impossible, for the newly registered black voters to elect candidates of their choice. The Massive Resistance Legislation, as Parker denominates it, included measures that gerrymandered the slate’s five congressional districts to fragment the heavy black population in the Delta area; authorized counties to elect their governing bodies and school boards at-large rather than from districts; authorized the abolition of elected county school superintendents increased the qualifying requirements for independent candidates; and,

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increased the number of discriminatory multi-member districts in the state house and senate.

Mississippi in 1966. for all the similarities and parallels, was not entirely the same as the state in 1890. The nation had renewed its commitment to civil rights in 1965 with passage of the Voting Rights Act, had not abandoned it as it had done after Reconstruction.

The Voting Rights Act was also the most radical, and potentially the most effective, piece of civil rights legislation ever enacted by Congress. One of its major provisions, Section 5, was expressly designed to block attempts by states such as Mississippi to circumvent the ban on literacy tests through enacting new measures to discriminate against black voters. Covered jurisdictions, defined as those which had used onerous registration procedures and in which voter participation was low, were required to preclear with federal officials any changes in their voting laws by proving that they were not discriminatory before they could be implemented.

In addition, while there were relatively few black lawyers in Mississippi due to discrimination in education and access to the bar, three national civil rights organizations maintained law offices in Jackson on Parish Street in the black business district: the Lawyers Committee for Civil Rights Under Law (for which Parker, one of the premier voting rights lawyers in the country, worked in Mississippi for twelve years); The Lawyers’ Constitutional Defense Committee (LCDC, which became part of the American Civil Liberties Union): and the NAACP Legal Defense and Educational Fund. Inc. The “Farish Street crowd,” as they were dubbed by their nemesis District Judge Harold Cox, accepted the formidable challenge of turning back the state’s massive resistance program.

Mississippi thus quickly became a proving ground for the 1965 Act, and for Congress’s substantially new approach to voting rights enforcement. Would the courts require strict compliance with preclearance and the other provisions of the Act, or would the new law prove to be as ineffectual as the voting rights guarantees in the earlier Civil Rights Acts of 1957, 1960, and 1964? The political fate of African-Americans, not only in Mississippi but in the South and the nation as a whole, hung upon the answers to these questions.

The Supreme Court was not long in handing the Farish Street crowd a critical victory, one that gave an expansive interpretation to the Act and dealt a severe blow to Mississippi’s massive resistance campaign. In Allen v. State Board of Elections (1969), a majority of the Court held that Section 5 was to be given ‘the broadest possible scope’ to reach even minor changes in election practices, and enjoined the enforcement absent preclearance of the state’s new restrictions on independent candidates, as well as its laws authorizing counties to switch from district to at-large elections and from elected to appointed offices. Allen made clear that voting practices which diluted minority voting strength, and not simply those which denied or restricted the right to register or cast a ballot, were covered by Section 5.

The Farish Street lawyers and the minority plaintiffs they represented won other important decisions as well, which Parker describes in careful detail. To recite only a few is to call an impressive roll of leading cases and principles in voting rights jurisprudence. In Connor v. Johnson (1971), the Supreme Court required single-member districts in court-ordered reapportionment plans and forced the state to abandon at-large voting in multi-member legislative districts statewide. In Stewart v. Waller (1975), the court blocked a change from ward to at-large elections in over forty of the state’s municipalities, a change which would have had a devastating impact on minority voters. In Kirksey v. Board of Supervisors of Hinds County (1977), the Fifth Circuit Court of Appeals en banc articulated the

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requirement that remedial election plans, aside from being free of discrimination, must also afford minorities a realistic opportunity to elect candidates of their choice. This “effective opportunity” standard was later written into the Voting Rights Act and applied nationwide by Congress when it amended and extended the Act in 1982.

Black Votes Count reminds us that some of the most important victories of the civil rights movement have been litigation victories. It also acknowledges the costs and limitations of reliance on the judicial process to enforce political rights. The defeat of Mississippi’s massive resistance was gradual and delayed by appeals, while the remedies ordered by the courts were always prospective and did not set aside elections held under the preexisting discriminatory schemes. Still, the gains in African-American political participation, though far from complete, have been impressive. As of 1989, Mississippi had a black member of Congress, a black supreme court justice, twenty-two black state legislators, almost seventy black county supervisors, twenty-five black mayors, and 282 black city council members. The litigation described in Black Votes Count did not itself elect any of these candidates to office, but without it, and without the changes in the state’s discriminatory practices which it brought about, their election would have been impossible.

In one of the most valuable chapters of this excellent book, Parker responds convincingly to the arguments of voting rights opponents that the Act has been transformed into an unwanted instrument for affirmative action. Massive resistance in Mississippi amply demonstrates that the Voting Rights Act and the remedies that have been ordered to implement it were a response to–not the cause of–racial consciousness and division in the electorate.

One would have to be naive or disingenuous to suppose that the protection of minority voting rights in racially polarized jurisdictions could safely be left to the normal give and take of majoritarian politics. As Parker concludes, to characterize judicial intervention in such circumstances as granting minority voters a racial preference “grossly mischaracterizes the history of white efforts to impede minority electoral participation and the functions of remedies for voting discrimination.

In addition to Mississippi, the Voting Rights Act of 1965 targeted six other states of the Old Confederacy for abolition of literacy and other tests for voting and for Section 5 preclearance. The resistance to minority political empowerment in these states, although not always on the grand scale as in Mississippi, was also intense and widespread, illustrating in a direct and powerful way the continuing importance of race in the southern region. I hope that Parker’s book will stimulate an interest in writing accounts of Voting Rights Act enforcement in these states, and that the future chroniclers will bring to their task a comparable level of experience.

EDITOR’S NOTE: Black Voters Count is in fact a pun on the title of a related book, Whose Votes Count? written by one of those opponents, Abigail M. Thernstorm.
Laughlin McDonald is Director of the Southern Regional Office of the American Civil Liberties Union.

Voting Rights and the Court:
Drawing the Lines
By Laughlin McDonald

Vol. 15, No. 3, 1993, pp. 1-6

On the last day of the 1993 term, the Supreme Court handed down one of the most controversial voting rights decisions of the last ten years, Shaw v. Reno. The Court held that white residents of North Carolina could challenge the state’s majority African American 12th congressional district because it was “so bizarre on its face that it is ‘unexplainable on grounds other than race.'” Although the holding of the case is quite narrow—there are not many, if any, districts as irregularly shaped as the 12th, which has been dubbed the “I-85 district” because it follows an interstate highway—it opens the door for opponents of the Voting Rights Act to question the propriety of all race-conscious redistricting.

Shaw v. Reno has stirred up public debate, but in fact the creation of minority-controlled election districts has always been controversial, as the courts and the larger society struggle to reconcile the competing goals of protecting minority rights and achieving a society that is color blind. The Supreme Court, for example, in 1971 in Whitcomb v. Chavis, dismissed a challenge by black voters to multi-member districts for the Indiana legislature after holding that the plaintiffs were not entitled to single-member districts drawn to ensure the representation of racial and ethnic minorities. Reflecting a strong bias in favor of majoritarianism and judicial

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neutrality in the political arena, the Court conceded that the voting power of black residents may have been canceled out, but concluded that “this seems a mere euphemism for political defeat at the polls.”

Two years later the Court reversed itself and held in White v. Regester that African-Americans and Hispanics in Texas were entitled to single-member districts for the legislature where, based on the “totality of circumstances,” multi-member districts had the effect of diluting their voting strength by denying them the equal opportunity to elect candidates of their choice. White became the reigning standard in vote dilution cases and resulted in the creation of minority-controlled election districts throughout the South and other sections of the country.

But again, the Court had second thoughts. In 1980 in City of Mobile v. Bolden, it held that black voters challenging at-large elections for the city commission had to show as a condition for obtaining single member districts, not simply that their voting strength was diluted, but that the system was established or was being maintained with a racially discriminatory purpose. The decision in Bolden effectively took voting rights back to the days of Whitcomb v. Chavis.

Congress, at the urging of the minority and civil rights communities, responded to Bolden in 1982 by amending the Voting Rights Act to restore the “results,” or totality of circumstances, test of White v. Regester. But it did so in the face of loud opposition from the Reagan

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administration, a few conservative members of Congress, and a small coterie of lawyers and academics.

The opponents recited a litany of horribles before Congress. The amendment would, they said, create racial division, it would “pit race against race,” impose a quota system for office holding, cause resegregation, and reduce the incentives for building racial coalitions. Senator Orrin Hatch warned that the amendment would lead to the creation of “political ghettos,” and that minority influence would suffer enormously.

Congress rejected these arguments and passed the amendment by overwhelming majorities in both houses. It concluded that the totality of circumstances test had a proven and reassuring track record which belied the speculations and dire predictions of the opponents. According to the senate subcommittee, saying that minority-controlled districts were the cause of, rather than a response to, racial polarization was “like saying that it is the doctor’s thermometer which causes high fever.”

Two days after the congressional amendment the Supreme Court, continuing to reflect institutional indecision and ambivalence in the area of minority vote dilution, reconsidered the implications of the Bolden decision in a case with similar facts from Burke County, Georgia. In Rogers v. Lodge it held that while racial purpose was required for a constitutional violation, racial purpose could be inferred from the discriminatory effect of a challenged voting practice. The Court for all practical purposes restored the test from White v. Regester.

In Thornburg v. Gingles (1986), the Supreme Court decided its first case under the 1982 Voting Rights Act amendment, and greatly simplified the test for minority vote dilution. It held that where a minority was geographically compact, or could constitute a majority in one or more single-member districts, where voting was racially polarized, and where whites voted as a bloc usually to defeat the candidates preferred by the minority, majority minority single-member districts were required.

Many in the civil rights community believed that Congress and the Court had finally silenced the critics of remedial districting schemes. Indeed, the progress in minority office holding after 1982, brought about in large measure by the creation of majority minority districts, was impressive and broadly accepted. A forthcoming book edited by Chandler Davidson and Bernard Grofman, which promises to be a definitive study of the Voting Rights Act and the impact of district voting at the state and local levels, describes the gains in minority political participation and office holding during this period in wholly positive terms as “The Quiet Revolution.”

But the critics refused to be silenced. Throughout the 1980s they remained more or less on the fringe of public discussion and continued to complain in articles and an occasional book that majority minority districts were “electoral apartheid,” and that the Voting Rights Act had been transformed into an unwanted form of affirmative action. During the 1990s redistricting, however, they gained new allies—Democrats and members of the press who charged that the Republican party, including the Republican-controlled Department of Justice, was systematically and cynically exploiting the Voting Rights Act by promoting and requiring the creation of majority minority districts simply because the by-product was more solidly white, Republican districts.

There is no question that the Republican party adopted a deliberate strategy of promoting an increase in the number of minority congressional and legislative districts to further its own partisan goals. It also made early and large investments in redistricting software which it offered without charge to minority and civil rights groups. The extent to which the Republican strategy worked is debatable. (The software, at any rate, had so many bugs and was so expensive to operate that it was never of any use to civil rights groups.)

In Virginia, for example, there was a big increase in the number of black legislative districts, but Democrats blunted Republican gains by pairing fourteen Republican incumbents in seven districts, and redrawing other Republican-controlled seats. The North Carolina congressional plan created two majority black districts, but at the same time protected all the non-retiring Democratic incumbents. In Georgia, on the other hand, Republicans increased their share of congressional seats from one to four directly as a result of an increase from one to three in the number of majority-black congressional districts.

There is far less evidence that the Department of Justice was part of the Republican strategy and was acting merely out of partisanship. While the interests of the Department and the party may have been congruent, the evidence shows basically that the Department of Justice was enforcing the preclearance provisions of the Voting Rights Act in the manner intended by Congress, vigorously and fairly.

The opponents of race-conscious districting got a second boost from a wholly unexpected quarter, a handful of black elected officials. No doubt venting their partisan frustrations over the Republicans’ redistricting strategy, they lashed out at the concept of creating more majority minority districts. One of the most visible was

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John Lewis, a hero of the civil rights movement and the highly respected representative from the majority-black 5th congressional district in Georgia.

During the midst of the most successful redistricting ever, in which majority black congressional districts were drawn for the first time since Reconstruction in North Carolina, South Carolina, and Virginia, Lewis was quoted in USA Today as saying that the creation of majority minority districts “looks too much like South Africa. It seems like we’re creating little black townships. You shouldn’t just put people together because they are the same color.” Those were, of course, verbatim the words of the opponents of the 1982 amendment of the Voting Rights Act.

Lewis was not alone. Several members of the Congressional Black Caucus, including Louis Stokes, Alan Wheat, Mike Espy, and Craig Washington, along with Dan Blue, North Carolina House majority leader, and Lois DeBerry, speaker pro tem of the Tennessee House, filed a controversial amicus brief in the Supreme Court in a redistricting case from Ohio, Voinovich v. Quilter. The brief, which was written essentially by the Democratic party, argued that the Voting Rights Act was not intended to lead to “political segregation” in which minority voters controlled a few districts but lacked “influence” in the rest. It warned against entrenching “separate-but-equal elections as a permanent feature of the American landscape.”

The controversy over minority voting rights was stoked further after President Clinton nominated Lani Guinier as Assistant Attorney General for Civil Rights, and then abruptly withdrew the nomination because he thought her views were too radical. Guinier was sharply attacked by the 1982 coterie of academics and some

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members of Congress as being a proponent of “quotas” for minority office holding and “vote-rigging schemes.” In fact she was not. Much of the criticism of Guinier was simply a replay of that made in the past by the traditional opponents of effective civil rights enforcement.

Guinier has proposed the voluntary use of limited and cumulative voting as alternative remedies for minority vote dilution, but so have a lot of others, including federal judge John Minor Wisdom, one of the leading jurists of the Fifth Circuit Court of Appeals. Limited and cumulative voting, whatever their merits, cannot accurately be characterized as “quotas” or “vote-rigging schemes.”

In touting the advantages of limited and cumulative voting, however, Guinier credited some of the old criticism of districts by saying that the alternative procedures would avoid “arbitrarily separating groups to create separate majorities in order to increase their share,” would encourage “cross-racial coalitions,” and would “reduce racial polarization.” But that was not enough to appease the quota police, or save her nomination. Other statements by her of the necessity of “disaggregating majority interests in a system dominated by irrational prejudice,” were too problematical for many in the U.S. Senate, and finally for the president himself.

The Guinier nomination, the Republicans’ redistricting strategy and the Democrats’ reaction to it, and the controversial amicus brief may have had no impact on the deliberations of the Court. They showed, however, that race-conscious remedies in voting remain a controversial issue, even to some extent in the minority community.

After the opinion in Shaw v. Reno, the Congressional Black Caucus, some of whose members’ districts were suddenly put at risk, denounced the decision and said it casts “a chilling pall across the face of electoral politics.” As for creating majority minority districts, the caucus was of the view that it “is a clear and warranted practice.” Lewis for his part quickly denounced Shaw v. Reno as “the greatest threat to the Voting Rights Act since it was written in August 6, 1965. If it wasn’t for the Voting Rights Act, it would still be primarily white men in blue suits in Congress.” But the retractions, of course, came too late. Echoing the “political segregation” language of the controversial amicus brief, the Court held that race-conscious redistricting “bears an uncomfortable resemblance to political apartheid.”

It is impossible to predict the impact of Shaw v. Reno, particularly in an area of the law as volatile as vote dilution and redistricting. However, taken purely as a legal document the decision can and should be read narrowly.

First, the Court did not invalidate the North Carolina plan. It ruled only that a district that is so bizarre on its face that it is unexplainable on grounds other than race may be challenged on constitutional grounds. Few districts should meet this threshold test.

Second, the decision holds or implies that even a “bizarre” district would be constitutional if it were in fact explainable on grounds other than race, or if it furthered a compelling state interest and were narrowly tailored to promote that interest. Although the Court did not decide the question, drawing a district to comply with the Voting Rights Act should constitute a compelling state interest. Whether the district were narrowly tailored would depend, presumably, on whether a more compact, more aesthetically pleasing minority district could be drawn. A somewhat more compact second majority-black district could in fact have been drawn in North Carolina in another part of the state, but the I-85 district was adopted to protect incumbents.

Third, Shaw must be read in conjunction with Voinovich v. Quilter, decided by the Court in March of this year. In Voinovich, the district court invalidated an Ohio legislative redistricting plan on the ground, among others, that it contained several majority-black districts. The district court said that the Voting Rights Act prohibited the creation of any majority minority districts unless they were necessary to remedy a violation. In a unani-

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mous opinion written by Justice O’Connor, the Court held that the act did not prohibit a state from creating majority-black districts, and that a plan could violate the act only if the plaintiffs showed that it had the effect of denying or abridging the voting strength of a protected class.

Thus, Shaw and Voinovich may fairly be said to stand for the propositions that majority minority districts are presumptively valid under the Voting Rights Act, and that a district may be challenged under the Constitution only where it is extremely irregular on its face. But even such a district would be constitutional if it were explainable on grounds other than race, or if it furthered a compelling state interest and were narrowly tailored to promote that interest.

No matter how narrowly Shaw v. Reno can be read, discrimination-prone jurisdictions, or those that want to maintain the status quo, as well as judges who are unsympathetic to the claims of minority plaintiffs, will doubtlessly argue that the decision should be applied as broadly as possible to draw into question all majority minority districts that are not perfectly symmetrical. Since “bizarreness” is inevitably in the eye of the beholder, Shaw v. Reno will at the least generate a new wave of voting rights litigation challenging majority minority districts on the ground that they are not compact.

Compactness, as Shaw v. Reno holds, is now relevant in redistricting. But it should be a functional rather than an aesthetic concept as the Court suggests.

Legislative or congressional districts may have an irregular shape to accommodate geographic features, such as rivers and mountain ranges. Districts for a city may be irregular because, as a result of patchwork annexations, the boundaries of the city are themselves irregular. Districts may be irregular to protect incumbents, or districts may be irregular to insure that the voting strength of minorities is not diluted. By the same token, a district may be perfectly symmetrical but fragment concentrations of minority population thereby diluting their voting strength. What is important is not how a district looks, but whether those who live in it can combine for effective political activity.

As one lower court has put it, a district is sufficiently compact if it allows for “effective representation.” A district would fail this test of compactness if it provided no sense of community, or if its members and its representative could not effectively and efficiently communicate with each other, or if it were difficult to tell who actually lived in the district. Applying this standard, and based upon accepted notions of federalism, a court would be required to defer to the legislature’s choice in district configuration and set it aside only upon proof that the choice violated the norm of “effective representation,” and not simply because the shape of the district was aesthetically unappealing.

The continuing claim that majority minority districts are political apartheid and exacerbate racial bloc voting has no real basis in fact. There is no more credible evidence to support the claim today than there was when it was rejected by Congress more than ten years ago. Indeed, the evidence strongly suggests that the creation of majority minority districts, and the election of highly regarded individuals such as John Lewis and Mike Espy, tend in the long term to decrease racial bloc voting and polarization. Certainly that is the underlying assumption of remedial redistricting. It is designed to break down the barriers of race and allow minority voters to participate on an equal basis in the process of self governance.

Nor are majority minority districts “ghettos” likely to elect persons representing only members of their own race. The 12th congressional district in North Carolina, for example, is in fact less segregated, i.e. predominantly of one race, than any congressional district previously drawn in the state. The district is about 57 percent black and 43 percent white. To suggest that such a district is segregated or is a ghetto, but that one in which the racial percentages were reversed is integrated, tortures language and logic. Political apartheid more accurately describes the systems that existed in states such as North Carolina, South Carolina, and Virginia, where all the congressional districts were majority white and no blacks in modern times had ever been elected to Congress.

We do not live in a world that is color blind. Racial bloc voting remains a fact of political life in many jurisdictions. Where it exists and is shown to dilute minority voting strength, majority minority districts are a proven and effective remedy.

Laughlin McDonald is the director of the American Civil Liberties Union Southern Regional Office, which specializes in voting rights cases.

A Far Cry from Apartheid

By Laughlin McDonald

Vol. 16, No. 2, 1994, pp. 1-2

The recent round of congressional redistricting in the South was hailed by the minority and civil rights communities as the most successful in the nation’s history. New majority-minority districts were created in Georgia, Virginia, North Carolina, South Carolina, Alabama, Mississippi, Louisiana, Florida, and Texas. Each of the new districts elected a minority candidate to Congress, increasing the number of African-American members in the South from five to seventeen.

Now these new districts are under siege. Whites in five of the states—North Carolina, Louisiana, Georgia, Florida, and Texas—have filed lawsuits claiming that majority-minority districts are a form of political apartheid and resegregation. By mid-September, as a result of these suits, federal district courts in Louisiana, Texas and Georgia had struck down congressional plans with majority black districts; a federal district court upheld the state redistricting plan in North Carolina. Because of the conflict among the decisions and the importance of the issues raised, the cases will almost certainly be heard by the U.S. Supreme Court, which has splintered on other recent voting rights decisions.

The claims raised by the plaintiffs in these lawsuits are profoundly ahistorical. Political apartheid, with South Africa long being the preeminent example, is the total exclusion of one race from governance and the domination of that race by another. No existing congressional redistricting plan can be remotely described in such terms. To the contrary, they are designed to include minorities in political life. They are designed to promote the fullest participation of all citizenry in congressional elections.

Segregation involved, among other things, denying

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black persons the right to register and vote, the right to run for office and participate in primary elections, the right to live in neighborhoods of one’s choice, the equal enjoyment of public accommodations, access to jobs, the right to serve on juries, and the right to attend public schools.

By contrast, no person living in a majority-minority congressional district is compelled by law to live there, and to live nowhere else. No person—black or white—is denied the right because of his or her race to run for office, or to vote for a candidate of his or her choice. Any analogy between existing congressional redistricting and segregation or apartheid is completely misplaced.

Legislators always make redistricting decisions based on group characteristics, including race and ethnicity. In Georgia, for example, the state created a district for the mountain counties that was 95 percent white. The state drew the district to recognize and preserve an area of predominantly white Anglo-Saxon heritage that it said had “unified interest and concerns.” No one has suggested that in doing so the state acted unconstitutionally, despite the fact that the mountain counties district is far more “segregated,” i.e. composed of residents of the same race, than is any other congressional district in the state, including the 11th, which is currently being challenged in federal court.

Majority-minority districts do not guarantee that minorities will get elected. All candidates must build coalitions and reach across racial, ethnic, economic, and other lines. But such districts do provide minorities equal opportunities to participate in the political process and to elect candidates of their choice. That right is guaranteed to all Americans, of whatever race, by the Constitution and the Voting Rights Act of 1965.

Taking race into account in redistricting, along with other factors, helps ensure that the process will be broadly inclusive and the Congress will be racially diverse. While white elected officials can undoubtedly represent racial minorities, our history shows that frequently they have not and that some have been the architects of our worst forms of official discrimination. Redistricting should ensure that minorities will in fact be represented in the national legislature, that their views will be heard, and that a variety of backgrounds and experience will be brought to national decision-making.

Laughlin McDonald, director of the Southern Regional Office of the American Civil Liberties Union, writes often for Southern Changes. This editorial essay was adapted from an article for Georgia Forum, an educational organization that provides experts’ views on public issues.