Amended Act Passes…

By Steve Suitts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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ma law permits a person to remain in the booth.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– = Not a member of Congress or not voting.

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

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

(R) = member of the Republican Party

(D) = member of the Democratic Party

(I) = independent of the two major parties

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

What Does H.R. 3112 Provide?

By Staff

Vol. 4, No. 1, 1981, p. 9

The House bill HR 3112, passed on October 5, extends continuously the special provisions of the Voting Rights Act and changes two others. In essence, the bill amends Section 4 to permit jurisdictions to meet a new standard of exemption from the obligations of preclearing voting changes under Section 5; amends the standard of proof in Section 2 voting discrimination court cases; and extends the bilingual language assistance provisions until 1992.

Preclearance

Currently Section Five requires all local jurisdictions in seven Southern states and parts of others across the country to submit all their voting and election changes to the U.S. Department of Justice or to the federal district court in Washington, D.C. These changes may include annexations, changes in polling places, reapportionment plans, or other election schemes. If a change is found to be racially discriminatory, an objection is issued and the change cannot be executed. H.R. 3112 continues this section.

Bailout

The Voting Rights Act presently provides for a “bailout” which allows jurisdictions to end the requirements of preclearance under Section 5 if they can show in a lawsuit in federal district court in Washington that they have not used a discriminatory test or device during the last several years.

HR 3112 provides a new bailout procedure in Section 4 which is less stringent than the current bailout. The new standard would not go into effect until August 6, 1984. Thereafter, a jurisdiction would have to show for itself and for all governmental units within its territory that for the preceding ten years it has a record of no voting discrimination and has taken steps to increase minority political participation and to remove obstacles to fair representation for minorities.

Some of the standards set up to determine if the jurisdiction has a clean record on voting discrimination include existence of a test or device used for the purpose or effect of racial discrimination, a court judgment of voting discrimination, the assignment of federal examiners for the area, compliance with Section 5, and the absence of objections rendered by the Attorney General under Section 5.

The standards set up to determine if a jurisdiction has eliminated voting practices and barriers to minority voters include a showing that voting procedures and methods are nondiscriminatory, the absence of intimidation and harrassment of voters, and local efforts to expand registration through the appointment of deputy registrars, offering evening or weekend registration, or providing postcard registration. The appointment of minorities as registrars, poll workers and others involved in running elections would also be a sign of an affirmative effort to expand minority citizens’ voting rights.

Under current law if an entire state is covered by Section 4 and 5 its counties and cities may not bailout independently. The new bailout permits counties within fully covered states an opportunity to bailout if they can meet the new standards of Section 4. The House bill continues current law requiring bailout suits to be brought in the federal district court of the District of Columbia. The bill also permits any person to participate in the lawsuit if their voting rights might be endangered if the state or county bailed out.

Bilingual Ballots

The provisions for the bilingual assistance in voting do not expire until 1985. However, the bill extends for an additional seven years the life of this section.

Discriminatory Results

The House bill amends Section 2 of the Act to prohibit any voting qualification, standard or practice carried out “in a manner which results in a denial or abridgement” of the right to vote of minorities. Section 2 also adds the following sentence: “The fact that members of a minority group have not been elected in numbers equal to the group’s proportion of the population shall not, in and of itself, constitute a violation of this section.”

No Assistance to Voters in Booth

The only amendment adopted in the floor debate was proposed by Rep. Millicent Fenwick of New Jersey. The amendment adds the following section to the Act: “Nothing in this Act shall be construed in such a way as to permit voting assistance to be given within the voting booth, unless the voter is blind or physically incapacitated.”

Summary of Changes

While the effects of the Fenwick amendment remain foreboding but unclear for minority voters, the changes in Section 4 will probably permit approximately 25 percent of the counties in the Deep South to ball out from Section 5. Staff members of the House Subcommittee on Civil and Constitutional rights predict that most of these counties will be in rural areas of Southern states where few blacks reside. The changes in Section 2 are aimed at permitting courts to hold unlawful practices and electoral schemes that result in discrimination. Under the Supreme Court decision handed down in the Bolden case, the courts presently interpret Section 2 to require a showing of both discriminatory purpose and effect.

“Why the South Needs the Voting Rights Act”

By Reubin O’D. Askew

Vol. 4, No. 1, 1981, pp. 10-13

With tear gas, with billy clubs, and with bullwhips, the eyes of America were opened at Selma, Alabama in 1965. The longstanding refusal of this nation to fulfill one of the most basic of its democratic commitments was revealed for all to see.

American citizens were denied their constitutional right to vote, and they were beaten and jailed for protesting that denial, simply because they were black. Millions of other Americans, both black and white, watched as it happened. The sights and the sounds of their television screens disclosed in sad detail the horror of the attacks on the peaceful marchers of Selma.

In the wake of those attacks, those who had long resisted statutory protection for minority voting rights in America were momentarily overwhelmed by the aroused sentiments of a conscience-stricken nation. Rising to the challenge, Congress quickly enacted a new law designed to assure and protect the right to vote.

In signing that law, President Lyndon Johnson summarized eloquently the need for such legislation.

“This Act,” he said, “flows from a clear and simple wrong. The wrong is one which no American in his heart can justify. The right is one which no American, true to our principles, can deny.”

The law passed by Congress and approved by President Johnson in the aftermath of the Selma marches is the Voting Rights Act of 1965. In the past sixteen years, that Act has proved to be one of the most successful laws ever enacted in the United States.

To a great extent, the wrong the Act was meant to redress has been rectified, and the right the Act was meant to protect has been secured. Throughout America, blacks and other minorities register, vote, and serve in elective office in record numbers. To many, Selma is a distant memory, and the right to vote is thought now to be a right freely and fairly exercised by all.

Not surprisingly, the very success of the Voting Rights Act has caused some, within Congress and without, to wonder whether the protections the Act affords are still needed. And, in the midst of a general retreat nationwide from the very notion of federal assertiveness, the question is asked: Why should we bother to prolong these protections when the Act comes up for review next year?

The answer to that question is simple: We should extend the Voting Rights Act because, as Americans, and as believers in representative democracy, we are still true to our principles, and we still care about the integrity of the right to vote.

Extended in 1970, and extended in 1975, the Voting Rights Act should be

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extended again in 1982. The safeguards it provides are still needed to assure a free and fair exercise of the right to vote. Those who argue against yet another extension make much of the changes the Act has wrought in the political life of the nation. They point readily to the remarkable strides we have made since Selma.

Yet, as remarkable as they may be, the advances we have made since 1965 toward full participation by minorities in the American political process are still very much inadequate. Despite our strides, black registration in the South is still more than twenty percent lower than white registration. And, despite our advances, at no level nationally do black elected officials approximate their share of the population.

Blacks today comprise about 12 percent of the nation’s population but hold only about one percent of the nation’s elective offices. And, among these black office holders in the fifty states, there is not a single black governor, lieutenant governor, or United States senator.

In my home state of Florida alone, despite the substantial advances of recent years, blacks still represent less than 1.5 percent of all elected officials. And blacks, Hispanics, and other minorities represent less than two percent of all elected officials in Florida, despite the fact that minorities constitute a quarter of the state population. There are no members of minority groups among the statewide elected officials in Florida. And, among the 160 members of the state legislature, there are just five blacks and only one Hispanic.

The Voting Rights Act must not become a victim of its own success. For that success is incomplete. The aims of the Act still have not been achieved. Blacks and other minorities in America still do not have the full benefit of the right to vote.

We have put an end to literacy tests. We have abolished the poll tax. We have done away with property qualifications. We have dispensed with “grandfather” clauses and “good character” tests. We have rid the political process of virtually all the overt means of discrimination by which the right to vote was so cynically withheld for so long. But discrimination remains. It has simply assumed other, subtler forms.

No longer is there outright denial of the right to vote, as there was at Selma and as there was throughout so much of America before 1965. Today there is instead a dilution of the impact of minority votes through imaginative schemes and practices involving at-large elections, annexation of adjacent suburbs, and gerrymandering of reapportioned electoral districts.

Minorities are allowed to register, and they are allowed to vote. But the political system is often structured in such a way that black candidates can rarely get elected. So the results are often the same as they were before 1965.

This is the principal reason why, for example, so few members of minority groups serve in the Florida legislature. At-large elections in areas of the state where minorities are most numerous virtually assure the defeat of minority candidates. Until we have single-member districts in Florida, elected officials will not be as accountable as they should be to all their constituents, and the votes of minorities will count less than the votes of other citizens.

The situation in Florida is typical of the situation elsewhere. Minority votes are diluted throughout America. This is hardly consistent with the constitutional concept of the right to vote. And it is a good example of why we still need a strong and effective Voting Rights Act.

Essential to a strong and effective Act are the preclearance provisions of Section 5. These provisions are the heart of the Act and the source of much of the current debate about the Act. Simply put, Section 5 dictates that any state or local government with a history of voting discrimination must submit any change in its election laws to the Justice Department for prior approval, and if such approval is not granted, must either change the law or obtain the approval of a federal district court in Washington.

Preclearance is viewed by its advocates as necessary insurance against renewed or continued disrimination. It is viewed by its detractors as an intrusion by the federal government into the sovereign domain of the states. Both are correct.

But in my view, the reasons for continued enforcement of the preclearance provisions are far more compelling than those against such enforcement.

Preclearance is indeed an intrusion on the dignity of sovereign states. It offends our belief in the principle of Federalism. Yet this intrusion was richly earned through years of countless indignities imposed on those who sought to exercise their right to vote. And, as much as I believe in Federalism, I believe also that our concern for Federalism must yield to our concern for the integrity of the Fifteenth Amendment.

Were it not for the long history of flagrant discrimination which led to the confrontation at Selma and inspired the Act in the first place, the elimination of preclearance might be justified. As it is, I think it naive to suppose that, without some form of federal oversight, the right to vote will not, in some instances, be abused.

We can regret the necessity of federal intervention in what ideally should be the preserve of local governments and the states. But that does not remove the necessity.

Some have maintained that, out of fairness, the preclearance provisions of

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the Act should be extended to cover all 50 states, and not merely those with past histories of discrimination. In fact many of the restrictions in the Voting Rights Act already apply nationwide. And all 50 states are already liable, if not now subject, to preclearance procedures. If a court finds that any one of them has violated constitutnal voting rights to an extent justifying relief, it can require preclearance.

As it is, Section 5 now applies to nine states and portions of 13 others. This includes states from virtually every region of the nation. Practically speaking, extending Section 5 to all 50 states would flood the Justice Department with preclearance requests, particularly as the states reapportion following the latest census.

In extending the preclearance provisions everywhere, we would lessen the ability of the Justice Department to enforce the Act anywhere-and increase the likelihood that discriminatory changes in election laws would survive the screening process.

Although it would not be advisable to extend preclearance nationwide, there may be some merit in allowing communities and states to escape from preclearance requirements if they can prove they no longer discriminate. To be acceptable, any such “bailout” provision should be carefully drafted to demand that the burden of proof in avoiding preclearance fall on communities and states to show that they are no longer discriminating. It should in no way diminish, and no way even threaten to diminish, the integrity of the right to vote.

It is important to realize as well that other minorities besides blacks have a stake in the extension of the Act. Partly as a result of low registration and turnouts, Hispanic Americans are badly under-represented at all levels of government. Hispanics are a rapidly growing minority group. Yet, according to the New York Times, there are only six Hispanic members of Congress, all in the House of Representatives, and, except in New Mexico, no Hispanics now hold statewide office anywhere in the nation.

Congress broadened the Voting Rights Act in 1975 to protect the rights of Hispanics and other minorities who often speak little or no English by requiring that bilingual ballots, bilingual voting machines, and other bilingual assistance be made available in certain areas.

I can speak firsthand of the need for this provision. In my current home of Dade County, Florida, in reaction to the arrival of the Mariel and Haitian refugees, an ordinance has been enacted prohibiting the use of any language other than English in a government publication. Without the bilingual requirements of the Voting Rights Act, Dade County would not be able to provide a bilingual ballot. Yet 35 percent of the people who live and vote in the county are of Hispanic descent.

This particular provision of the Act does not expire until 1985. But it too should be extended as an outcome of the current debate.

Still another result of the current debate should be clarification in the Act that the test of discrimination in voting is the effect of a law and not the intent of those who enacted it.

As a former prosecutor, I can say with some certainty that intent is hard to prove. Given the outcome of the Supreme Court decision last year, I think the black voters of Mobile, Alabama will agree. And I know the black voters of my former home of Escambia County, Florida, will agree as well, for they too have tried with some difficulty to prove discriminatory intent in court. But in the area of voting rights, proof of discriminatory intent should not be required. It is effect, not intent, that matters. If the effect of a law is to dilute the right to vote, then the law should be removed from the books, regardless of the intent of those who enacted it.

The inclusion of this principle in the Voting Rights Act would enable us, for the first time, to combat effectively the new and sophisticated means of voting discrimination—such as at-large elections—which have proliferated since Selma. It would help us assure that the votes of all citizens count equally in choosing our representatives and resolving public issues.

In a democracy, all else flows from the right to vote. The exercise of all our other rights as Americans depends on the free and fair exercise of the franchise. The vote is the wellspring of participation. It is the indispensable key to entry into the full life of this land. At a time when participation has diminished, when democracy is threatened, what wisdom can there be in according anything less than the fullest possible measure of protection to the exercise of the right to vote? At a time when there is so little faith in our institutions of government, what reason can there be for risking the integrity of the one means by which all Americans have an opportunity for an equal voice in the actions of government?

Reubin O’D. Askew was formerly governor of Florida and special trade representative for the United States in the Carter Administration. His remarks were presented at a conference on minority voting rights in the South on August 21, 1981.

The Danger of Retreating from the Second Reconstruction

By C. Vann Woodward

Vol. 4, No. 1, 1981, pp. 13-15

The last forty years have been an exciting time for the historian of race and race relations. Exploring the past, I was continually encountering the present—or something strikingly like it—and living in the present, I was constantly running head-on into the past. I never had any trouble in my teaching and writing with the demand for what students used to call “relevance.” The danger was in confusing past with present and committing the offense historians call “presentism.” One such danger lay in the tempting comparison between events of the 1860s and 1870s with events of a century later. I must assume responsibility for giving currency to the term “Second Reconstruction” as applied to events of our own time and for encouraging the development of some aspects of the analogy between the First and the Second Reconstruction. The analogy was almost inescapable, given the new confrontation between North and South, between white and black, between federal and state government and the daily evocation of the constitutional amendments, federal laws, government policies, and court decisions of the 1860s and 1870s.

Historical analogies are notoriously dangerous things. I shall spare you a lecture on the differences between the First and Second Reconstruction, but I do believe that there is one experience of the Reconstruction in the previous century that should be of special interest in deliberations regarding changes in the Voting Rights Act of 1965. 1 have in mind the fateful decisions of the federal government that climaxed in 1876-1877 and led to the virtual abandonment of federal efforts to enforce the rights of the freedmen in the Southern states. Those rights, including the right to vote, were guaranteed by the Fourteenth and Fifteenth Amendments to the Constitution and federal laws to enforce them. The winning and guarantee of those rights were essential parts of the justification of the bloodiest war in our history that cost the lives of 600,000 Americans as well as the justification of the struggle for reconstruction that followed. Yet the white electorate, North as well as South, was wearied and disillusioned with the struggle and a majority was ready to give it up. In turning their back on promises, commitments, and principles of long standing, Republicans knew that the honor of their party was at stake.

Before taking the final step and turning over to the Southern states, and the opposition party that would control them, the defense of black rights they were abandoning, the Republicans demanded formal pledges from Southern officials and leaders, guarantees that they would assure full protection to the rights of blacks, including the right to vote. All

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of the Southern states were deeply involved in these negotiations, but Louisiana and South Carolina, for special reasons, took the lead. They were the last two Southern states under Republican government and under the new policy of the Republican President Rutherford B. Hayes, those governments of those states would collapse and be replaced by governments of the opposition. This in spite of the fact that Hayes’s election as president depended on the assumption of Republican victory in both states.

Guarantees of protection for black rights were requested of Louisiana a few days before the Compromise of 1877 was consummated and Hayes was inaugurated president. The incoming Governor Francis T. Nicholls promptly wired his spokesman in Washington that a joint caucus of his party’s members of both houses had adopted a resolution, “that the guarantees asked for, of order, peace, and protection of law to white and black, no persecution for past political conduct, no immunity for crime, can be freely given.” The spokesman forwarded this resolution to representatives of Hayes together with “The Nicholls government guarantee:” as follows:

“First. The acceptance of the civil and political equality of all men, and agree not to attempt to deprive the colored people of any political or civil right, privilege, or immunity enjoyed by any class of men.

“Second. The enforcement of the laws rigidly and impartially, to the end that violence and crime shall be suppressed and promptly punished, and that the humblest laborer upon the soil of Louisiana, of either color, shall receive full protection of law in person and property.

“Third. The education of the children of white and black citizens with equal advantages.

“Fourth. The promotion of kindly relations between white and colored citizens of the State, upon a basis of justice and mutual confidence.”

The incoming Governor Wade Hampton of South Carolina also waiting to take power after the downfall of the state Republican administration, was already on public record in a pamphlet published in 1876 entitled, Free Men! Free Ballots!! Free Schools!!! The Pledges of Gen. Wade Hampton, Democratic Candidate for Governor to its Colored People of South Carolina, 1865-1876. In this he promised that, “Not one single right enjoyed by the colored people today shall be taken from them. They shall be the equals, under the law, of any man in South Carolina. And we further pledge that we will give better facilities for education than they have ever had before. “ And again,”I pledge my faith, and I pledge it for those gentlemen who are on the ticket with me, that if we are elected, as far as in us lies, we will observe, protect, and defend the rights of the colored man as quickly as (of] any man in South Carolina.”

Comparable promises for the protection of black rights were forthcoming from other Southern states and continued to appear after federal withdrawal. Two years after the compromise of 1877 was closed three of the South’s most prominent leaders, L.Q.C. Lamar, of Mississippi, Alexander Stephens, of Georgia, and Wade Hampton agreed in a public statement that the disfranchisement of blacks was not only impossible but undesired by the whites of the South. Lamar declared that it was “a political impossibility under any circumstances short of revolution,” and that even if it were possible the South would not permit it.

Northern Republican white leaders who had supported the Compromise of 1877 professed complete faith in its workability and trust in the pledges from the South. James G. Blaine wrote in 1879, “there will be no attempt made in the Southern States to disfranchise the Negro by any of those methods which would still be within the power of the State. There is no Southern state that would dare venture on an educational qualification [for the franchise], because by the last census there were more than one million white persons over fifteen years of age, who could not read a word…. Nor would the property test operate with any greater advantage to the whites.” In Atlanta President Hayes told blacks in his audience that “their rights and interests would be safer if this great mass of intelligent white men were let alone by the general government,” safer in fact than if the federal government were still custodian of their rights.

It was not that these Republican leaders were excessively naive nor blind to political realities that were making a farce of their faith all around them. Rather they chose to believe what they wanted to believe, or what was consistent with their policies. Nor was it that the prominent Southern leaders whose solemn promise I have quoted were bald faced and unconscionable liars. I realize that I am somewhat more charitable about the good faith and intentions of these gen-

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try than some of my students. But I find other explanations more plausible than the assumption of deliberate falsehood and deception. Actually some of the Southern conservatives, Hampton and Nicholls for example, made efforts to fulfill their promises and for a short time enjoyed a measure of success and white support. But their prestige and popularity—even that of a Hampton—was no substitute for the power and authority of the federal government. And once that authority, or the will to enforce it, was withdrawn a vacuum of permissiveness expanded that the prestige and influence of no leader could fill. The will of the white majority asserted itself or acquiesced in the face of extremists who set out to destroy black rights utterly at the cost of the popular government and democratic principles.

The farcical nature of the 1878 congressional elections in the South should have made plain the bankruptcy of the Compromise of 1877. Coercion, intimidation, and fraud were the means used in ’78, but the more subtle legal devices of attrition to diminish, curtail, and dilute the black votes were quickly developed and imitated. By 1882 Georgia and Virginia had adopted poll taxes and South Carolina had developed the eight-ballot box law. These together with innocent-looking registration and secret-voting laws sharply reduced voting among illiterate and impoverished blacks. Yet a majority of black men continued to vote (or to be counted) in nine of the eleven states through the 80s. It was not until toward the end of the century and the first years of the next that the reactionary revolution, the all-out revolt against democracy was carried out in the South. This resulted in the almost total disfranchisement of blacks, sharp reduction of white voters, reduction of the overall voter turnout by an average of 37 percent (66 percent in Louisiana), the elimination of opposition parties, and the establishment of one-party rule that lasted half a century.

I do not expect so drastic a counterrevolution to end the Second Reconstruction or anything so extreme to result from your decision about the Voting Rights Act of 1965. 1 do think it reasonable, however, to warn that a weakening of that Act, especially the preclearance clause, will open the door to a rush of measures to abridge, diminish, and dilute if not emasculate the power of the black vote in Southern states. Previous testimony has shown how persistent and effective such efforts have been even with the preclearance law in effect. Remove that law and the permissiveness will likely become irresistible—in spite of promises to the contrary. The coming reallocation of congressional seats in the South as a consequence of the 1980 census will open many temptations for manipulation of laws affecting voting. I hope that retreat from the Second Reconstruction will not make it necessary for some future generation to face a Third.

C. Vann Woodward presented this testimony before the House Subcommitee on Civil and Constitutional Rights on June 24, 1981.

My name is C. Vann Woodward, and I am a historian by profession. Although I have taught at Yale University for fifteen years and still live and work there, my main identifications have been with the Southern states. Born and reared in Arkansas, educated in Georgia and North Carolina, I taught at Georgia Tech, the University of Florida, and the University of Virginia before joining the faculty of the Johns Hopkins University for fifteen years and then moving to Yale in 1962. The main subject of both my teaching and my books (the first of which appeared in 1938) has always been the history of my native region, especially that of the post-Civil War period. In that period, as in my writings about it, the history of race relations has naturally played an important part.

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

By Drew Days

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bail-Out

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

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

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

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

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

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

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

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

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

Reappointment Roundup

By Woody Holton

Vol. 4, No. 1, 1981, pp. 17-22

The Southern state capitals have been filled in the last few months with computer tapes, over-sized maps, and print-outs of census data as legislators decide the boundaries of state legislative and Congressional districts according to 1980 population. For the first time since the start of the century all Southern legislatures will pass some kind of re-districting plan, a feat that may be blemished by continuing historical efforts to dilute black voting strength.

The job of reapportionment is not always easy. The Virginia legislature’s first efforts produced a plan with one district more than the state constitution permitted. In the face of a court challenge, the North Carolina General Assembly had second thoughts about its plan which legislative leaders had boasted was “the best we can do” early in the year. The N.C. legislators returned in October for a second special session.

Everywhere legislative reapportionment must meet the provisions of the state and federal constitutions, and in most Southern states black or Hispanic groups are challenging plans in court alleging constitutional violations. While state provisions may vary, federal courts usualy examine reapportionment plans by two standards: “one person—one vote” and the protection of minority voters.

As a result of pivotal Supreme Court cases in the early 1960s, the U.S. Constitution’s Fourteenth Amendment requires that as much as statistics permit, one legislator represent no fewer or no more residents than other legislators. Litigation surrounding “one person-one vote” emerged because many Southern rural Black Belt legislators had as little as one-half or one-third the population of urban and suburban legislators. Hence, the law now requires that the population of one legislative district with one representative equal as much as possible the ideal district where legislators represent the same number of people.

The courts’ protection of minority voters also stems from the Fourteenth Amendment. In the Bolden case in 1980, the Supreme Court held that legislative districts could not be designed with the purpose and effect of diluting black voters’ ability to choose responsive candidates. Before Bolden, some lower courts had held that the Fifteenth Amendment of the federal Constitution prohibited legislative districts which had the effect of diluting black voting strength regardless of purpose. The dilution of black voting strength is accomplished by several means, including use of large multi-member districts in which black voters are never able to favorably influence the outcome of elections.

The Voting Rights Act also establishes a standard for reapportionment in eight Southern states excluding Florida, Tennessee, and Arkansas. In the covered states reapportionment plans must be submitted to the U.S. Justice Department under Section five of the Act before they are implemented. Justice is required to disapprove the plan if it determines that minorities’ votes will be diluted by the compostion or placement of districts.

TEXAS

While the state legislature passed a Congressional redistricting plan which some political observers say may have at least a “prayer’s chance” of holding up before the courts and the U.S. Justice Department, plans for the state house and senate were declared unconstitutional in a unanimous opinion of the Texas Supreme Court in September. The job of reapportionment has fallen to the special legislative re-districting board which Texas law created in the late 1940s. It must present a plan within 60 days. The board’s composed of Lt. Gov. William Hobby, State Attorney General Mark White, Comptroller Bob Bullock, Land Commissioner Bob Armstrong, and House Speaker William Clayton. All are Democrats although

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each has different political constituencies.

The state Supreme Court’s decision held that the legislative plans violated the state constitution because the district lines unnecessarily cut across the boundaries of several counties. Although the state board’s new plan need not be approved by the legislature, it must be approved by the U.S. Justice Department and any state and federal courts in which it is challenged.

The lines of the Congressional plan in Texas are also under attack before a federal court in Tyler where a black minister charges that the reapportionment dilutes black and Hispanic voting strength. The Congressional plan was a victory for Republican Gov. William Clements who garnered enough legislative votes to endanger some Democratic Congressional incumbents.

ARKANSAS

0ne of the few places where reapportionment did not leave blood on the carpet, the Arkansas legislature and special state reapportionment commission established the new district lines before most states held special sessions. Since voters had turned down single-member districts in an election on the changes in the state constitution earlier, political coalitions of blacks and whites could not muster the clout to convince state officials to make any big changes in this decade’s reapportionment.

LOUISIANA

A special session of the Louisiana legislature will convene in November with the expectation that the fight over redistricting will be loud and fierce. The Legislative Black Caucus in Louisiana is preparing its own plans for some districts in the state house and senate as talk of blacks losing one or more legislators under the plan of the legislative leadership continues. The states’s Congressional delegation has virtually agreed on a re-districting plan, but it is not at all certain that the legislature will defer to the federal representatives. The chairman of the house re-districting committee, Jock Scott, is apparently supporting a plan that will give Rep. Gillis Long problems. Congresswoman Lindy Boggs’ district surrounding New Orleans should become majority black, according to some black political leaders. One state administrator who is working on developing the legislature’s plans, however, contends that a majority black Congressional district is difficult or impossible to draw around New Orleans. “Besides,” she said, “the legislature wouldn’t sit for that.”

MISSISSIPPI

In special session in September the state legislature turned down the Legislative Black Caucus’ proposal to create a 70 percent black district that included parts of the Mississippi Delta and metropolitan Jackson. Instead the legislature left most Congressional boundaries near their present lines.

The Delta is now represented by veteran Democrat David Bowen whose 1970 reapported district was 45 percent black. The legislature’s reapportionment plan now provides a black population of nearly 50 percent. Because the number of voting age blacks is considerably less than the total black population in most rural areas, black voters in the Delta will not be able to elect, by their own votes, a responsive candidate in the new plan.

Opponents of the Congressional plan included 26 black state legislators and five white legislators. The Caucus and black groups are preparing to ask Justice to disapprove the plan. A challenge in federal court is also likely.

The Mississippi legislature will return to Jackson to draw districts for the state house and senate. Working with the NAACP, a legal services coalition, and others, the Black Caucus is expected to introduce its own plans. Because of years of extensive litigation in federal court resulting in a new legislative reapportionment plan only in 1979, several Mississippians have been adding and subtracting figures for reapportionment for almost a decade.

TENNESSEE

The Tennessee legislature has created a new Congressional district because of increased population in the state and potential candidates for the new seat have begun to scramble. The state’s incumbent representatives, including Harold Ford of Memphis, one of only two black representatives in the South, will not face any apparent problems due to the new lines. One of the Republican incumbents, Robin Beard, is expected to run against Democratic senator Jim Sasser instead of seeking reelection. Among the candidates for the new Congressional seat is TVA Director Bob Clement.

FLORIDA

When the Florida legislature convenes in early 1982, four new Congressional districts will be created because of increased population and, unless a new political coalition develops, the

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state house and senate will continue to maintain large multimember districts. The redistricting for the congressional seats is somewhat unpredictable because several key state legislators are interested in becoming a new member of Congress. At the same time, the Democratically controlled legislature is expected to continue opposing single member districts in fear that the state Republicans would join blacks and Hispanics in gaining increased representation.

NORTH CAROLINA

With hardly a rancorous word, North Carolina legislators redrew the boundaries for congressional seats in each of the state houses in August and quickly moved on to other business. By mid-September, blacks had filed suit in federal district court in Raleigh challenging all three reapportionment plans and contending that the state had failed to get approval of the 1967 state constitutional amendments that require legislative districts to follow county lines. The lawsuit claims that the state constitutional provision and the legislature’s lines create multi-member districts that dilute black voting strength.

Before even a hearing on procedural matters in court, state officials moved to backtrack. The state’s attorney general admitted that the 1967 amendments had not been submitted by forwarding them to Justice for review. In a special session on the budget, the legislature decided to reconvene in the last week of October to redraw the lines. Apparently, the state attorney general had also informed legislative leaders that the plans’ deviation from “one person—one vote” would not pass constitutional muster.

SOUTH CAROLINA

Earlier this year in short order the South Carolina legislature preserved the state senate as an all-white body and may have blocked any further gains of black voters in the lower house when it reapportioned. While the committee that drew up the re-districting plans held no open meetings before the legislature met, the final plans were introduced, debated, and adopted in less than seven days. “We didn’t know what hit us,” one black legislator commented.

The state legislative plans were submitted in September to the Justice Department with expected opposition from black legislators and groups.

Congressional reapportionment has not been so easy. For almost two months a conference committee tried to come up with a congressional plan which preserved South Carolina’s metropolitan areas—Charleston, Columbia, and Greenville—in separate Congressional districts. Both plans will likely stall black voters’ power at the ballot booth.

GEORGIA

The Georgia General Assembly began a special session on reapportionment on August 24. It adjourned on September 18 amid loud cries from advocacy groups and black legislators that the plan is discriminatory and drawn with the clear intention of diluting minority voting strength and protecting white incumbents.

Before the session began, both House and Senate reapportionment committees had adopted formal guidelines including an agreement that any plan would comply with the Voting Rights Act and “one man—one vote” court cases. Each house had come to an earlier “gentleman’s agreement” that the final plan of each body would be approved by the other. Individual district plans also were kept confidential unless released by the legislators developing the plan. Hence the public did not often see a plan until the day it was voted on by a reapportionment committee. The final, complete House and Senate plans were not released to the public nor to all members of the General Assembly until the special session was underway.

At public and private meetings, community groups and black state legislators adamantly called for the creation of plans which would not dilute minority voting strength. The groups identified counties in House and Senate districts in Georgia where the black population was 40 percent or better and urban areas where black populations represent a substantial population.

The House and Senate adopted redistricting plans on August 27. The House plan included 28 single member districts with 50 percent or more black population and 2 countywide districts in Fulton which covers most of Atlanta. However, only 19 districts are proposed as 65 percent or more black, though there are presently 20 black House members. Because of the difference between total black population and voting age black population, the Justice Department considers a 65 percent black population necessary for a black voting majority.

In Fulton, the controversy revolved around the question of county-wide districts. Both the Fulton delegation and the House reapportionment committee approved a 19-member single district plan. However, during floor debate, Reps.

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Grace Hamilton and John Greer, both from Atlanta, offered an amendment which created 17 single member districts and two countywide districts. Greer presently represents one of the three countywide Fulton districts.

The plan created eight 65 percent or more black districts and one district with between 50-60 percent black population. The 19-member single district plan included 10 black majority districts including nine with black populations over 65 percent. A similar 17-2 plan had been voted down by both the Fulton delegation and the House Reapportionment Committee.

The Fulton County delegation, with the largest number of black representatives, will have six black incumbents running against each other for three house seats if the proposed plan is implemented.

In DeKalb County in the Atlanta metro area, the committee and delegation struggled all summer over similar questions. Black Rep. Betty Clark offered to the committee a plan with five majority black districts. However, the DeKalb plan sent to the floor included only four majority black districts. Clark also offered unsuccessfully her plan as a floor amendment.

During the House debate, Rep. David Lucas offered a floor amendment to the Macon-Bibb County plan which would have created two predominantly black districts. It too was defeated with all the white delegates from Bibb voting against the amendment.

Rep. Billy Randall, head of the Legislative Black Caucus, offered several floor amendments aimed at lessening the dilution of minority voting strength. One of the Randall amendments would have resulted in three black districts in Chatham County (Savannah). This plan had been offered to the reapportionment committee by another member of the Caucus, Rep. Albert Scott of Savannah.

Randall also proposed several changes aimed at the rural Black Belt areas where no black legislators have been elected. One would have returned a district to its present black percentage. Although Randall pointed out that the committee plan for the Black Belt was intentionally discriminatory, the House approved it. Only the Hamilton/Greer floor amendment approving at-large districts for Fulton County was passed by the House.

The Senate overwhelmingly approved a controversial plan developed by its majority leader, Thomas Allgood of Augusta. The plan includes eight districts with 50 percent or more black population, but three are less than 65 percent black. The Black Caucus members in the House offered their own Senate plan as a substitute to the Aligood plan. That plan included 11 black-majority districts (two in the Black Belt), and six districts with over 65 percent black population.

Perhaps Congressional redistricting drew the most controversy and excitement during the session. On September 17, the Georgia General Assembly approved a Congressional plan with a 57 percent black district in the Fulton County area. Members of the Black Caucus in both the House and the Senate objected loudly.

Julian Bond of Atlanta spoke vehemently against its passage in the Senate. Bond had sponsored in the Senate committee a plan with a 73 percent black Congressional district. The committee passed his plan, but it was amended on the floor of the Senate, becomeing a 69 percent black district. However, the House approved a Congressional plan which included only a 51 percent black Atlanta Congressional district. At present Georgia has ten Congressional districts and a black population of approximately twenty-seven percent. There has been no black member of Congress representing the state since Andrew Young resigned to become U.N. Ambassador. Young had been the first black Congressman in Georgia since Reconstruction.

The other controversial issue of Congressional redistricting involved splitting Gwinnett County. Suburban Gwinnett is the fastest growing county in Georgia and has had an increase in Republican voter turnout in the last few elections. Most efforts to split Gwinnett by the Senate were viewed in the press as an effort to protect Democratic Congressman Ed Jenkins. A conference committee working on the two plans reported back five times

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before a compromise was reached late September 16. The Senate finally passed a plan with 57 percent black population after majority leader Ailgood, speaking against the plan and for the larger black population, released those committed to him to vote as they wished.

The House, which had always favored a smaller black population for the district, passed it the next day by a vote of 91 to 69. On the House floor Black Caucus members spoke against the plan, noting that it would dilute the voting strength of a half million blacks living in the Atlanta metropolitan area.

Advocacy groups had held a news conference on the day that the House and Senate plans passed. The groups included representatives of Common Cause, ACLU, NAACP, and the League of Women Voters. They complained of the large number of multi-member districts in the House plan and the dilution of minority voting strength.

On September 18, the Black Caucus held a news conference objecting to all three plans. The head of the Caucus, Billy Randall, said, “The Assembly understood what it was doing and proceeded to intentionally deny to the black voters of this state the opportunity to elect representatives who would clearly reflect their views in Atlanta and in the nation’s capitol… We will take these objections to the Justice Department and to the courts. We will not be satisfied until equitable representation for the citizens of Georgia has been carried out…

On September 25, ten members of the Caucus journeyed to Washington to meet with the Justice Department. They took with them letters of objection to the reapportionment plans. Justice is expected to decide if the plans meet the standards of the Voting Rights Act by January.

ALABAMA

The Alabama legislature convened on September 29th in special session to consider proposals to redraw the state’s House and Senate districts. The Legislature had redrawn the Congressional districts during an August special session. The plan has been forwarded to Justice for review under the Voting Rights Act.

Before the September session, reapportionment committee co-chairmen Sen. Lister Proctor of Sylacauga and Rep. Rick Manley of rural Demopolis steered the early stages of line-drawing, parcelling out regions to be handled by various committee members in private. The only public hearing on the plan was held on the morning of the second day of the session after the plan’s introduction. Civil rights and advocacy groups such as the NAACP, ACLU, Common Cause, Alabama Democratic Conference, and the League of Women Voters presented testimony denouncing the plan. Residents from Alabama’s Black Belt, black state legislators and other black elected officials also testified against the plan. The opponents protested the lack of public notice and opportunity to adequately study the proposal.

Witnesses observed the careful effort in “cracking” and “stacking” counties with the highest black population percentages to achieve nearly exact 55 percent black–45 percent white populations among the six Black Belt House districts. These districts are still presently represented by white legislators. By balancing the Black Belt districts, the plan assures that black voters in the area have no voice since 55 percent black population seldom constitutes a majority of blacks of voting age.

The plan also diluted black voting strength in Jefferson County where Birmingham sits, according to legislators and citizens who spoke. The plan pits two black legislators in the county against each other and reduces the number of black voters in another district. Predictions were made that in Jefferson County and the Black Belt the plan would eliminate three to five possible districts where blacks could elect responsive candidates.

At no time during the reapportionment process did Rep. Manley or Sen. Proctor make public either a state-wide map, racial composition data, or total population figures on the proposed districts. The committee bill passed both houses by wide margins with only verbal assurance to assembled lawmakers and observers that population totals were not outside the commonly-accepted limit of 10 percent deviation from “one person—one vote.” Access to racial information was denied on the grounds that the reapportionment committee members

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and staff were completely ignorant of such data and had never taken any notice of the factor of race in designing the new districts.

One state-wide alternative was introduced by Michael Figures, a black state senator from Mobile. The Figures plan, drawn through a computer, differed from the Proctor-Manley plan by yielding fifteen House districts with over 65 percent black population and five such Senate districts. All had a deviation range of only 2 percent from the ideal population for a district. Proctor and Manley proposed only eleven House districts and two Senate seats with 65 percent or more black population. There are now 13 House districts and three Senate districts represented by black legislators, among 105 House and 35 Senate districts.

The Figures plan was rejected in short order although a few members such as Sen. Mac Parsons of Hueytown, mindful of the results of reapportionment efforts in Alabama over the past two decades, urged a closer examination. “With the low variance, it (Figures’ plan) will probably be the one the court adopts later on,” said Parsons.

In addition to Figures’ plan, several other alternatives were offered by members of the Black Caucus. While Proctor and Manley argued that the Jefferson County lines were unavoidable, Rep. Tony Harrison of Birmingham offered five amendments that increased or maintained black voting strength in Jefferson. All options were rejected.

The committee plan was passed by the House on October 8th, the sixth day of the special session. The vote was 75 to 22, with all 13 black House members voting “no.” All three black state senate members also voted against the plan.

The Legislature reconvened in October for any technical adjustments in the Proctor-Manley plan. Challenges to the plan before the U.S. Justice Department and the courts are expected

Court Grants Virginia A Third Swing At Redistricting

By Woody Holton

Vol. 4, No. 1, 1981, pp. 22-24

Virginia’s court legislative redistricting plan survived neither a court challange nor U.S. Justice Department “preclearance” required by the Voting Rights Act.

In July, Justice obliged legislators to hold a special August conclave to patch up two majority black House of Delegates districts they had drawn and quartered in their first reapportionment session last April. On August 25, a three-judge federal district court found that, by assigning much fewer voters to some House of Delegates districts than to others, the House had failed to give all voters an equal voice in electing delegates.

Virginia has until February 1 to swing again. If its third plan violates the Voting Rights Act or “one person, one vote,” the 3-judge court will probably draw its own map for the next decade’s elections.

The House of Delegates’ woes began when it tore up two districts that had black majorities. Through the 70s, the predominantly black city of Petersburg elected its own delegate. But Petersburg fell behind the rest of the state in population and had to be combined with a neighboring area. In April the House merged Petersburg with Colonial Heights, a city just across the Appomattox river that is 98 percent white—and known to many as Colonial Whites. The new district was 61 percent white.

Near Petersburg, the first redistricting session demolished a majority-black rural district (the white incumbent wasn’t running again) to use its counties as building blocks for neighboring districts that needed more voters.

Section 5 of the Voting Rights Act requires states to prove to the Justice Department that elections changes do not dilute minority voting strength. Justice objected to the ill treatment of both Petersburg and the rural district nearby. In its August re-districting session, the legislature put Petersburg in a new district that has a black majority and created a new majority-black district in the nearby rural area.

One of the Justice Department’s objections remains unresolved. In the last decade, the port city of Norfolk elected its senators at-large. To complete its transition to single-member districts, the Senate this year drew a line through the city—and down the middle of its black neighborhood.

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Virginia’s lone black senator, Douglas Wilder, urged his colleagues to put Norfolk blacks in a single district that would have a black majority. The Senate refused, and Justice objected to this fragmentation. Since Virginians won’t elect senators again till 1983, the Senate has not decided where to draw the line for the next election.

When it met in August, the House complied with all of the Justice Department’s objections to its April plan. The Delegates also eliminated all but one of the “floterial” districts in its original map. A “floater” is a form of multi-member districting in which one or more legislators are elected from subdistricts and one or more legislators are elected districtwide.

In the floterial system the legislature measures its deviation from “one person, one vote” for the entire district—leaving huge variances among underlying districts. Theoretically, redistricters could assign one floater to represent each half of the state, then measure only the population deviation between the two monster floterial districts regardless of the deviation in population of the smaller districts within the two halves. Apparently fearing floaters wouldn’t hold up in court, the House largely abandoned them in its second redistricting session.

The shift away from floaters did not reduce deviation from “one person, one vote” enough. On August 25, the court found the House plan unconstitutional.

To measure population deviaton, the Supreme Court adds the percentage of the population of the district that exceeds the population of an ideal district with the percentage of the population of the district that falls shortest of the ideal. The sum is the state’s total deviation.

In 1973, the Supreme Court allowed Virginia a higher deviation than any other state—16.4 percent. The Court cautioned that this figure “may well approach tolerable limits.” The 1981 House of Delegates plan strayed from perfect equality by 27 percent.

“They were perfectly aware when they voted for it that it was unconstitutional,” says American Civil Liberties Union lobbyist Judy Goldberg, “They were told time after time by their legal staff what the range was.”

Delegate Elize B. Heinz voted against both the original and the revised plans. “I was doing a real Cassandra act, and nobody was paying any attention,” says Heinz, “It’s just as if we had this strong compulsion to self-destruction.” The 100-member House passed the first plan 87-11 and the August revision 78-12.

Throughout the long process of public hearings, subcommittee meetings and committee markup, Virginia groups had fought for a fair plan. The A.C.L.U. did not address public hearings heard around the state because the House held these hearings before any plan had been proposed. “It was just a waste of time,” says A.C.L.U. associate director Steven Rutherford.

Common Cause and N.A.A.C.P. members did speak at the hearings, endorsing single-member districts and laying down guidelines for population deviation. The N.A.A.C.P. wrote Virginia’s 127 black elected officials, as well as black groups around the state, urging them to speak at the hearings. At two political conferences, N.A.A.C.P. experts briefed black leaders on redistricting.

When the House Privileges and Elections committee held its one public hearing after devising a plan, members of all three groups came forward to oppose it.

All three groups sued to keep the state from using the new House districts in the 1981 elections. Their complaints differed on some points, but a common theme ran through them—the House plan murdered “one person, one vote.”

Frank Parker, who directs the Voting Rights Project of the Lawyers’ Committee for Civil Rights Under Law, attributes the legislature’s high-deviation plan to an arrogant belief that “Virginia is not really part of the United States—Supreme Court decisions don’t apply in Virginia.” Parker joined the A.C.L.U. in its successful challenge to the House plan.

Joan Mahan, secretary of the State Board of Elections, says she “thought there was a good possibility” Virginia’s deviation would stand. The imprecision of Census figures justifies some deviation, she says, and “the courts have never said what is the magic number.”

The Old Dominion claims it strayed so far from “one person, one vote” to avoid grouping a portion of one locality with another locality. Since 1776, its lawyers pointed out, House of Delegates districts have preserved the boundaries of counties and cities.

But the House Privileges and Elections Committee considered and rejected several plans that preserved localities while also reducing deviation. In both 1971 and 1981, Virginia’s congressional and state senate districts cut through localities. Even the House of Delegates maps, in both 1971 and 1981, divide Fairfax County, a thickly populated suburb of Washington, D.C.

The A.C.L.U. questions Virginia’s claim that localities’ influence in Richmond would weaken if they were split among districts. Goldberg found that although the state Senate’s districts presently divide localities, senators propose a higher percentage of local legislation than House members.

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Goldberg thinks she knows the real reason the variance was so high. “Every time you see a particularly noticeable variance,” she says, “You will also see an incumbent whose seat they wanted to protect.” Mahan echoes the delegates’ interest in considering incumbency “Nowhere,” she says, “did they throw two incumbents into one seat.”

Some delegates charge that the chairman of the House Privileges and Elections Committee didn’t enforce discipline as well as his Senate counterpart. At one point in April the committee adopted a plan that seemed to suit everyone. It was later found to contain 101 delegates—one more than the constitution permits.

Others blame Delegate Ford Quillen, who chaired the House’s redistricting subcommittee, for the breakdown of law and order. Quillen is from the southwestern corner of the state, which points like an arrowhead into the Appalachian mountains. Though the mountaineers had moved a lot during the 1970s, Quillen refused to let Southwest Virginia’s four districts be altered.

Deviation among the three extreme southwestern districts is 20 percent—well above the highest deviation the Supreme Court has allowed. Once incumbency overpowered “one person, one vote” in Southwest Virginia, some believe, other delegates who wanted to stretch things a bit could point to the southwestern districts as examples.

Quillen claims he sought only to preserve the area’s county boundaries.

Whether it’s an honest goal or merely a pretext, preserving localities’ boundaries would end altogether if A.C.L.U., N.A.A.C.P., and Common Cause ever convert the House of Delegates to single-member districts. Throughout the redistricting battle, they held single-member districts as their ultimate goal.

In addition to distancing leaders and voters, these groups charge, multi-member districts discriminate against minorities by submerging their neighborhoods in areas with white majorities. They claim that’s one reason only four blacks serve in the House, although 18.5 percent of Virginians are black.

Delegate Robert C. Scott explained why neither he nor the other black delegates opposed either the original or revised House plan. In cities with large black minorities, says Scott, the whole delegation listens to blacks. Single-member districts would permit delegates from predominantly white areas to ignore blacks.

Scott also questions whether single-member districts would boost the number of black delegates as much as the N.A.A.C.P. claims, since the white legislature would draw the districts to favor whites.

But A.C.L.U.’s Rutherford says the legislature won’t get away with diluting black strength. “We’ve got the Voting Rights Act to fall back on,” says Rutherford, “We’ve got a good track record on that.”

Anyway, says N.A.A.C.P political director Michael Brown, a single-member plan needn’t come from the legislature. The A.C.L.U. has drawn a single-member plan that includes 10-black majority districts, and Brown thinks the court should have executed that plan after the legislature’s second failure to obey the Constitution in redistricting.

Instead the Court instructed Virginia to hold interim elections under the unconstitutional August plan. The new legislature will serve only one of the usual two years. If Virginia’s third try at redistricting fails, the court says it will draw its own plan, and the Supreme Court requires courts that draw plans to use single-member districts.

If a court-ordered plan is implemented, single-member districts could favor the two groups which are the weakest in the legislature—blacks and Republicans.

Already the court has sentenced incumbents to suffer for their sins. Since the interim legislature will serve only one year, delegates will have to face election every year for the next three.

Woody Holton works for the Congress Watch newsletter and resides in McLean, Virginia.

Voting Problems and Solutions

By William Velasquez, Edward Brown Jr., Joseph Smith, James Buskey, Abigail Turner, Robert Woods

Vol. 4, No. 1, 1981, pp. 28-33

Texas

William E. Velasquez

My name is William C. Velasquez and I am the executive director of the Southwest Voter Registration Education Project (SVREP). SVREP is a non-partisan 501(c)(3) voter registration project working in California, Arizona, New Mexico, Utah, Colorado, and Texas. We have conducted 336 voter registration campaigns in these states since 1975. In addition we have undertaken an extensive series of studies designed to measure the Hispanic participation in the political process and explore the impediments to full participation. SVREP, together with the Mexican American Legal Defense and Educational Fund and other legal societies have sued, settled or are currently negotiating with forty-seven (47) jurisdictions to remedy some of the more outrageous gerrymandering we have found in the Southwest.

The desires of the Hispanic voter in the Southwest are much in keeping with what all Americans want. The overwhelming majority of the requests for assistance from the field are to impact the cities and the schools. Chicanos in the Southwest want paved streets, drainage, curbs and better schools. The tradition in the vast majority of Southwestern cities is that the Mexican side of town is not paved, much less provided adequate municipal services, and the schools in our side of town are terribly inferior. Better municipal services and better schools consistently rank as the top two priorities in all our work in the field and in our polls.

Unfortunately, it is at the local level that the greatest barriers are found. For example, the first sixty-six counties that the Southwest Voter Registration Education Project (SVREP) analyzed in Texas were all found to be gerrymandered against Chicanos at the county commissioner level. This, of course, is beyond the realm of statistical probability and does not happen by accident. As many as 128 counties throughout the Southwest may be gerrymandered at the county commissioner level against Chicanos. In addition, there are 42 school boards in Texas with 50 percent or more Chicano students and no Chicano elected official. Another 30 school boards with 50 percent to 91.5 percent Chicano students have only one Chicano school board member. The number of Chicano students must rise to an average of 89.1 percent before Chicanos begin having appreciable representation at the school board level. The reason for this is the at-large election scheme.

These structural barriers coupled with voting abuses, such as letting people vote who aren’t registered to vote, taking the ballot out of the booth and to the homes of Anglo ranchers to vote in tight elections, make it virtually impossible to win.

It used to be much worse.

In the last four years under the Voting Rights Act, Hispanics in the Southwest have made excellent gains in voter registration. From 1976 to 1980 the number of Hispanics registered to vote in the state of Texas increased from 488,000 to 798,000, a 64 percent increase. There has also been an increase in the number of elected officials. SVREP has documented a 29.5 percent increase of Hispanics elected to office in the three years from 1976 to 1979. Dramatic increases in registration and turnout have been noted in a number of areas where the Department of Justice has issued letters of objection. Crockett County, Texas, for example, now has a registration rate of 95.2 percent among Chicanos, and 93.6 percent of the Chicanos registered turned out to vote in a recent county commissioner race that was made possible by equitable districting lines under Section 5 of the VRA. Many other cities and counties such as Sonora, Dallas, Crockett County, Houston, and San Antonio have been similarly affected.

The process that is unfolding before us is the process whereby America integrates a people, an immigrant working class, into our democratic electoral process. We have a long way to go; however, the progress afforded us under the protection of the Voting Rights Act gives cause for optimism. My optimism is not just for the Chicano people’s political future, but for the future of our country. Indeed, I feel very strongly that the struggles we have gone through and those struggles of previous immigrant groups have helped this country stay true to its basic ideals. And important among those ideals is that America is a land of just laws that practices what it preaches …. and where in fact a group from humble circumstances can strive to and actually elect their own representatives.

William C. Velasquez gave testimony before the U.S. House Subcommittee on Civil and Constitutional Rights on May 6, 1981.

Georgia

Edward Brown, Jr.

My name is Edward Brown, Jr.. I’m from Camilla, Georgia. I’m District Coordinator of the Seventh District of the NAACP which includes 28 counties in southwest Georgia.

Mitchell County has 50 or more elected officials but only four are black, representing the more than 45 percent black population. The county has had five suits filed against it for discrimination. The first in 1948 was for discrimination in voting.

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I’ve run for political office on two occasions in south Georgia: in 1976 for the state house of representatives from Mitchell County and in 1979 for mayor of Camilla. My experience has been that race is a tremendous handicap in running for office in southwest Georgia.

It’s difficult to campaign in white areas. I tried at first but whites were reluctant to accept my campaign material; and one tore up my card as I stood on his front door step. Private clubs and churches are basically segregated so that it is hard to establish political coalitions with white organizations. In fact, the exclusive white Lions club runs elections in Camilla; the all white Rotary club runs elections in Petham; and the Pilot Club does the same in Baconston, the third largest precinct in Mitchell County.

As might be expected, racial block voting persists in Mitchell County. During my state race, a deputy sheriff carried whites to the polls but never blacks. My wife voted and as she was marking her ballot, she heard the deputy instruct a voter in the adjoining booth not to vote for me because “he’s a nigger.” My poll watcher was denied entrance to the polls until 11:30 a.m. on election day because my white opponent did not have a poll worker present.

During the city election local police guarded the line of voters, a practice which intimidated blacks. In fact, two blacks were arrested for interfering with voting procedures. The charges were later dropped.

I received a majority of the votes cast at the polls, but after the absentee ballots were counted, I was declared the loser. I was not allowed to see the absentee ballots until a week later.

Edward Brown, Jr. presented this testimony before the House Subcommittee on Civil and Constitutional Rights on June 3, 1981.

Joseph F. Smith

I am Joseph Frederick Smith of McDonough, Henry County, Georgia. I am a retired school administrator with thirty-three years in the Henry County School System. In 1980 I was elected to the county school board, becoming the first black ever to hold a county elective office.

Henry County, Georgia was totally segregated until the 1960s. The courthouse and city offices in all four towns were occupied only by whites. The eating places, bathroom facilities, drinking fountains, and all public meeting places were segregated. School integration was done in 1970 by pairing white and black students in certain grades and sending them to the same schools. Like in many other places, two large all white private schools were established in the county. They siphoned off about 1,000 students from the public schools, and costs the system $1,000 per year per child.

We began to organize in the 1960s to improve the quality of life for blacks in the county. There was and continues to be great disparity in municipal services in the white and black communities; there were no black elected or appointed officials, no blacks on the county police force, and no blacks employed in meaningful positions in government or private businesses.

We were given promises that these problems would be looked into. Some appointments were made, but the central problem was that we did not have any black elected officials. By 1972, one black had run for county commission, and in 1976 another black and I ran for the school board. None of us were successful because we just could not win under the at-large election system. Racially polarized voting prevented a black from getting enough votes to win any seat.

In 1978 we sought legal assistance, and our attorneys discovered that both the county commission and school board had changed to the at-large system in the late 1960s without submitting the legislation to the Attorney General for preclearance under Section 5. Actually, no legislation had been submitted from the county since the Voting Rights Act had been passed.

We negotiated with both groups for almost a year without success, even though the Justice Department had entered objections under Section 5 to both at-large changes. The school board refused to talk to us or our attorneys, and the county commission set up a committee that proposed several redistricting plans that all continued to dilute minority voting strength. None of the plans we submitted were even given serious consideration by this group. The state legislature delegation introduced one of these plans even though we strongly opposed it. The bill passed, the governor signed it, and the Justice Department objected again.

To the surprise of both boards we sued under Section 5 of the Voting Rights Act in November, 1979. In June, 1980, a judgement was entered ordering that the county be redistricted into 5 single-member districts, one of which was majority black, and assessing $14,000 in attorneys’ fees

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against the county. This was a tremendous waste of time and tax money.

As a result of the new redistricting plan, I won my seat on the board of education. The black candidate for county commission lost in a run-off by 95 votes. It is apparent to me that without Section 5 of the Voting Rights Act, which allowed us to attack the at-large system—no black would ever have been elected to the Henry County School Board and County Comission. No matter how much we spoke out, blacks were passed over…

Joseph Fredrick Smith presented testimony before the U.S. House Subcomittee on Civil and Constitutional Rights on June 3, 1981.

Alabama

James E. Buskey

I represent in the Alabama legislature a district in the City of Mobile, and, since my career in politics has been in that city, I am quite familiar with a lawsuit called Mobile v. Bolden. While urging the continuation of the Voting Rights Act, I must also strongly urge you to amend Section 2 of the Act to conform with Section 5 and make clear that Congress prohibits any practice which is racially discriminatory, whether in purpose or effect.

Section 5 of the Voting Rights Act has had an important deterrent effect. During my term in the state legislature, I have heard numerous changes in voting procedures discussed and abandoned due to the existence of federal clearance requirements. I know the deterrent effect of Section 5 is real.

Without Section 5, at least 72 discriminatory changes would now be in effect in Alabama, according to the Department of Justice. Forty-five objections have been filed since 1975. I ask you to consider this list of jurisdictions which have attempted to submerge black political participation through such means as changing from district to at-large voting, illegally redistricting county, city and school governing bodies, adopting staggered terms, changing residence requirements to exclude black candidates, and other unlawful tactics: Autauga County-23 percent black; Birmingham-42 percent black; Chambers County-36 percent black; Clarke County-43 percent black; Hale County-63 percent black; Pike County-35 percent black; Selma-50 percent black and Sheffield-19 percent black.

Another indication of the indispensable nature of Section 5 is the evidence that many procedures have been changed without submission to the Justice Department. The department discovered 70 unsubmitted changes in the period following the 1970 extension. Although I do not have complete information on the entire period since 1965, I believe this evasive tactic to be widespread and comparable to the documentation of almost 400 unsubmitted changes in the neighboring state of Georgia during the period.

I can also cite a number of instances of long delays in submissions. In 1969, Washington County, 29 percent black, changed from single-member districts to at-large election of its county commission. This act was not submitted to the attorney general until December 1979. In 1971, Conecuh County, 44 percent black, rearranged its county

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commission districts to eliminate a majority black district. Justice Department poll watchers discovered the change nine years later, prompting its submission in 1980.

Such attempts to subvert the law convincingly demonstrate the continued need for the present Section 5 provisions. The danger of Congress permitting the essential elements of the Voting Rights Act to die are real and have already appeared in early form with passage of enactments in my own state to require “reidentification of voters,” as the term is incorrectly stated.

Although it is the task of county boards of registrars to systematically review the voting rolls in order to remove persons disqualified as voters, many boards have hit on “reidentification” as a way to relieve themselves of the burden of their sworn duties, causing legislation to allow a number of boards to completely purge the rolls and require voters to appear before them to “reidentify” as qualified electors. At first glance this may appear a handy, if somewhat lazy, means of making certain the voting rolls are not carrying great numbers of disqualified persons. But “reidentification” must be understood as complete re-registration. The result is the instantaneous lowering of the percentage of black registration, built over the years through painstaking and costly means, to zero.

Although white registration is reduced to zero as well, whites quickly regain high levels of registration. Blacks do not. A case in point is the recent “reidentification” experience in Choctaw, a county with 44 percent black population. A 1978 law mandated “reidentification” there. Surveys reveal that white registration fell by approximately one-fifth. Black registration however, collapsed to only 52 percent of previous levels. Thus, an eight percent difference (54/44) in white-black registration grew to 30 percent (65-35) following “reidentification.”

It is no coincidence that “reidentification” legislation passed in the 1981 session would give boards of registrars in three majority black counties, each with increasing black populations and voting registration, the license to completely purge the rolls and place the burden of registering once again on the voters. Thus, Perry, 60.2 percent black, Sumter, 69.5 percent black, and Wilcox, 68.9 percent black—none ever represented by a black legislator—will force blacks to start from scratch one year prior to the next legislative election. Without Section 5 these techniques cannot be challenged quickly and can become the latest form of disfranchisement.

Such bills, introduced as local legislation, are practically impossible to defeat in the Alabama legislature. Under the rules of each chamber, such legislation is uncontestable unless one represents the particular county affected. A vote against another legislator’s local bill is a breach of the etiquette of the chamber and an open invitation to reprisal against one’s own crucial local measures.

Even with sixteen black legislators in the statehouse, we are simply unable to protect black people from such injurious legislation outside the districts we represent. Without the protection of Section 5, black people in Perry, Sumter, Wilcox and all the other counties away from Birmingham, Mobile, Montgomery, and Tuskegee have little protection from serious obstacles to black registration and representation.

The era of denial of voting rights is not past in Alabama. The Voting Rights Act functions as the bedrock of civil rights legislation. Should Congress allow the Act to die, blacks and other racial minorities will have the doors to legislative processes slammed in their faces, and the tremendous contribution minorities have just begun to make in government, so especially important in the cities and counties of our nation, will be lost.

James E. Buskey appeared before the US. House Subcommittee on Civil and Constitutional Rights on June 3, 1981.

Abigail Turner

I am Abigail Turner, an attorney with the Legal Services Corporation of Alabama in Mobile, Alabama. Our staff has represented black citizens in cases charging violations of the Voting Rights Act. To ascertain whether these violations were isolated examples of noncompliance, we conducted a survey of black political participation in Alabama.

The Voting Rights Act led to dramatic increases in registration, candidacy, holding of elective office and voting of formerly disenfranchised black Alabamians. In 1960 prior to the passage of the Act, only 57,500 blacks had registered; this number had grown to over 420,000 in 1980. However, these important advances do not tell the whole story. Barriers to registration and voting still hinder black Alabamians from equal political participation.

Monroe County

In Monroe County where 44 percent of the population is black, 80 percent of the registered voters are white. Black political leaders in that

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county report that blacks have been denied registration by the all-white board of registrars because they did not have Social Security cards. They did not have cards because they had never worked in covered employment. Others who were unable to state the name of two registered voters who could vouch for them were denied registration. This voucher requirement is expressly prohibited by the Act, 42 U.S.C. S1973b(c). Alabama law permits boards of registrars to appoint deputy registrars, but the Monroe County Board had refused repeated requests to appoint them.

Pickens County

Pickens County in west Alabama has a 42 percent black population. However, 67 percent of the registered voters are white. Vigorous registration campaigns in that county have confronted stiff opposition. Again, registrars refused to appoint deputy registrars. Persons assisting in the registration campaigns reported that on at least two occasions registrars called the sheriff when groups of blacks appeared to register. The sheriff, a deputy and the courthouse grounds keeper stood over the applicants as they attempted to complete the forms. That had a chilling effect.

In the last two years, the Legal Services Corporation of Alabama has represented clients whose rights to nondiscrimination in voting have been violated. These cases clearly illustrate the effectiveness of the legal tools provided in the Voting Rights Act.

Clio

The Town of Clio annexed territory in 1967 and 1976 and did not submit the changes to the Justice Department under Section 5. The United States Attorney General requested submission of the 1976 annexation and warned the town that it could not legally implement the annexation as it affected voting until the town had complied with Section 5. Ignoring this, Clio held municipal elections in July 1980. Persons in the annexed areas voted. An all white five-member council was elected which included two residents from the annexed areas. Clio’s population in 1980, including the annexed areas, was 47 percent black. Mary Gamble, a black citizen, lost her race for town council by five votes. We represented her in filing suit under the Voting Rights Act challenging the failure to preclear the annexations. In March 1981, the three-judge federal court found the annexations violated Section 5 of the Voting Rights Act. The court terminated immediately the terms of the two persons residing in the annexed area, and the terms of the remainder of the council and the mayor in 120 days.

Mary Gamble believes she faced serious economic problems because she was a black candidate. Ms. Gamble had a loan, secured by a second mortgage on her home, from the only bank in Clio. The white man who has been Mayor of Clio for more than 25 years is the President of the Bank of Clio. Two weeks before the town council election, the Mayor, President of the Bank, notified her that she had three days to bring her note to a current status. After she filed an election contest in state court, the Mayor came to her house about the note.

Wilcox County

No black person was registered to vote in Wilcox County prior to enactment of the Voting Rights Act. With the Act’s passage, federal registrars came to this majority black county and registered several thousand black voters.

In 1978 a black man was elected sheriff of the county and two blacks were elected to the county commission. Before the next local elections in 1980, the Wilcox County Board of Registrars decided to purge voters who had been convicted of disqualifying crimes or had died. Registered voters to be purged were not notified according to state law. They learned that their names were being removed only when the United States Office of Personnel Management, pursuant to the Voting Rights Act, began contacting the persons on the list who had been registered by the federal registrars. One of our client’s name had been removed because of death. Another’s child had died, and the adult’s name had been removed. A third person was removed because of an alleged first degree murder charge; he had never been charged.

The Office of Personnel Management found that many registered voters to be purged were properly registered and had been victims of an inaccurate investigation by the Board of Registrars. Most of the persons on the purge list were black.

When the board proceeded despite the inaccuracies, black citizens complained to the Department of Justice and the Office of Personnel Management. Our clients filed suit to enjoin the purge, so they could vote in the September 1980 primary. The Justice Department observers at the primary insisted that the persons purged be allowed to vote; Justice later disapproved the purgation of federally registered voters. At the preliminary injunction hearing prior to the November 1980 general election, the defendants consented to restore the persons’ names improperly removed and to purge in accord with state and federal law.

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The Alabama Legislature in May 1981 enacted a voter reidentification requirement for Wilcox County. Actually the process is a reregistration. The county’s first black sheriff, Prince Arnold, described the effect on black voters: “It took us 15 years to get these people registered. Now we’ll have nine months to do what took 15 years.” The bill requires a voter to appear in person before the board of registrars between the hours of 9:00 and 4:00. The board is only required to sit one day in each location. Voters must complete a questionnaire which includes Social Security number and driver’s license number. The Wilcox County act contains no option to present other identification.

Abigail Turner presented her testimony to the US. House Subcommittee on Civil and Constitutional Rights on June 3, 1981.

South Carolina

Robert R. Woods

My name is Robert R. Woods, a member of the South Carolina State Legislature serving since 1973. I am a member of the Ways and Means Committee, chairman of the Joint Charleston County Legislative Delegation, former Vice-Moderator of the General Assembly of the United Presbyterian Church and minister of Wallingford United Presbyterian Church in Charleston, South Carolina, where more than 30 percent of the population is black.

Even though the Voting Rights Act has opened some doors in some places throughout South Carolina, there are still far too many doors that remain closed to blacks and other minorities. In areas where there has been conscious effort by public officials to uphold the law, and make efforts to include all persons in the political process, regardless of color or political affiliation, the governments that have emerged reflected these efforts.

Charleston, South Carolina, however, is an example of an area where public officials have eventually accepted the law of the land and strived to implement these laws equitably. Even though there is much to be done in our city to uplift the living conditions of all our citizenry, the city still exemplifies what can happen when all parties work together to bring about an acceptable solution.

Prior to 1975, my city was torn with dissension which had deep racial overtones. Although two blacks had been elected to sit in our city council, most of the minority residents still believed that their needs were not represented by the pre-1975 city government. The two blacks that had served on the city council had been chosen by the predominantly white organizations. Basically, it was impossible to vote for a single candidate, or to field a candidate that was responsive to the needs of my constituents. We had to vote for the entire slate, or not vote at all.

However, thanks to the Voting Rights Act, all of that has changed; and the government now is comprised of persons who truly espouse the views of all citizens. As a result of prodding from the Justice Department and the court-imposed redistricting plan, the city converted from an at-large election scheme which had closed the electoral process to blacks, to a more equitable single-member plan. After this plan was implemented, the black citizens immediately deposed the white-backed black councilmen in favor of black candidates of their choice. At the present time, our city council consists of six blacks and six whites. Our city was selected by the United States League of Cities as an All-American City. I do not believe that my city could have been so honored had it not been for Section 5 of the Voting Rights Act.

The Charleston county council and the Charleston county school board cannot boast these achievements. These two bodies still maintain at-large election procedures and only reflect token black representation. The South Carolina Senate also has totally ignored the needs of a full one third of the state’s population. There has not been a black to sit in our State Senate since Reconstruction. The body consists of 46 members, all elected from multi-member, at-large and numbered post. Interestingly enough, the most powerful man in the body is white and represents Calhoun County which is over 55 percent black. This Senator Marion Gressette, formerly headed the Anti-Integration Committee, a group of legislators who organized to halt integration in our state at all cost, also presides over redistricting in the Senate, and has publicly stated that he will wait until the Voting Rights Act expires in 1982 before he tackles the problem of redistricting the South Carolina Senate.

I find it unexplainable that 33 percent of our people are not represented in the upper chamber of our legislature. I am not saying that blacks are required to be represented by blacks, however, I am saying that black Americans have a right to exercise their franchise in a manner that is fully protected by the “Equal Protection Clause” of the 14th Amendment of the Constitution.

Robert R. Woods presented testimony before the US. House Subcommittee on Civil and Constitutional Rights on June 3, 1981.

Barriers to Voter Registration Remain Southwide

By Raymond Brown

Vol. 4, No. 1, 1981, pp. 34-35

Since the end of the white primary system in the South, the most basic indication of the fulfillment of the right to register and vote has been the analysis of registration by race. Once the Supreme Court had dismantled the legal mechanisms by which blacks were excluded from the electoral process, white resistance intensified at the courthouses where blacks could register to vote. As the venerable V.0. Key, Jr., said in his panoramic work Southern Politics, each local registration officer became a law unto himself in determining the citizens’ right to vote, and the machinery of registration in the hands of resisting white officials became the most evasive and effective method of denying the franchise.

Of course, the 1965 Voting Rights Act recognized this basic problem and provided for the appointment of federal registrars and a preclearance of voting changes in order to overcome the local, rooted efforts of resistance. After 15 years, the mechanics of the Voting Rights Act have improved the status of black’s right to vote, and the percentages of registered blacks have increased dramatically since 1965. For example, since 1962 the number of black registered voters has almost tripled in the 11 Southern states.

It would be a tragic mistake, however, to assume that the right to register and vote has been accomplished in most areas of the South. Resistance continues to be widespread. Among 182 counties and parishes with more than 20 percent black population in North Carolina, South Carolina, Georgia, and Louisiana, only four counties have a rate of registered blacks among the black population greater than the white rate of registration.

In Georgia differences were extraordinary in a large number of counties. In Wilkins County, Georgia, where 45.9 percent of the population is black, the white rate of registration is 85.7 percent and the black rate of registration is 54.4 percent. In Miller County, Georgia where there is a 28 percent black population, the difference between the black and white rate of registration is 32.8 percentage points.

With the rarest exception, the rate of white registration continues to exceed, by a substantial margin, the rate of black registration throughout the Deep South. In the four states surveyed, the average rate of black registration is approximately 14 percentage points below the average rate of white registration. The differences in the rate of registration between blacks and whites in Georgia is 16.6 percent; In North Carolina it is 16.5 percent; in South Carolina it is 16.7 percent; and in Louisiana it is almost 20 percent.

Some state officials in the South argue that there are now many counties “Where voter participation problems are far fewer than in the past and …, demographically, do not justify the use of preclearance procedures.” As an example, these officials have usually pointed to those Southern counties without significant black populations as the areas within the South where black’s problems with political participation no longer exist.

On the most basic measurement of political participation, the Council’s analysis of selected jurisdictions without large black populations in these four Southern states belies the contention that the right to register and vote has become the equal right of both black and white citizens. In a representative group of 36 counties in Louisiana, Georgia, South Carolina, and North Carolina, where the black population was below 20 percent of the jurisdiction, the Council analyzed registration data. The black population of these counties ranged from 2 percent in Cherokee County, North Carolina, to 19 percent in Cherokee County, South Carolina. By geography and population they constitute a representative sample of the Southern counties with little black population.

In these 36 counties, no jurisdiction has a rate of black registration equal the rate of white registration. In most of these counties the difference between the higher white rate and the lower black rate is comparable to the differences among the heavily populated counties. In Allegheny County, North Carolina, for example, where less than 2 percent of the population is black, the rate of registration among the white population exceeds the rate of registration among blacks by a difference of 20.2 percentage points—a difference that exceeds the average in North Carolina among the heavily black populated counties.

In Louisiana, La Salle parish has only a 9 percent black population, but the rate of registration among whites exceeds the rate of registration among blacks by more than 10 percentage points. Gwinnett County, Georgia also shows a particularly egregious example of depressed black registration. In this suburban Atlanta county where only 2 percent of the population is black, the rate of registration among that 2 percent is almost 18 percentage points below the rate of registration among the 98 percent white population. And in Henry County, the 17 percent black population has a registration rate that is more than 34 percentage points below the white rate.

Perhaps most remarkably, in almost half of these counties with less than 20 percent black population (15 of 36) the difference between the white and black rate of registration is greater than the average difference in the substantially black populated counties of the applicable state. In other words, by traditional indicators, the problems of registration in counties with smaller black populations in the Deep South continue to be as great as the problems of registrations in largely black populated counties.

Registration data offers us some important observations:

1. The differences between the rate of registration among blacks and whites continues to be substantial and widespread;

2. The differences between rates of black and white registration, and probably the problems which accompany such substantial differences, exist in those areas of the South where the black population is not substantial as much as it does where the black population is 20 percent or more;

3. The improvement in registration has continued over the past 23 years although the rate of improvement has slackened since 1966.

The analysis clearly indicates that none of the white elected officials who are in positions to influence state election procedures, in terms of ensuring that they are equitable, has “confessed religion and been baptized. ” Rather the data show that the “mourners'” bench is still filled with sinners and the revival must continue.”

Raymond Brown testified before Congress on June 16, 1981.

My name is Raymond Brown, I am director of a special project of the Southern Regional Council that is examining voting rights in the South.

Section 5 and Voting Changes: The Heart of the Act

By Vernon E. Jordan and Lane Kirkland

Vol. 4, No. 1, 1981, pp. 36-37

Vernon E. Jordan

I am Vernon E. Jordan, Jr., President of the National Urban League, Inc. The National Urban League is a 70-year old non-profit community-service organization which has historically been concerned with seeking equal opportunities for all Americans in all sectors of our society.

Having been born and reared in Atlanta, Georgia, as a Southerner I know personally that no right in all the Constitution’s arsenal is more basic than the right to vote. I know how indispensable that right has been in including blacks in the democratic process from which historically we have been excluded. The right to vote has been directly related to our economic growth and the sense of self worth and dignity that blacks are beginning to gain in this country.

In the 60s I was director of the Voter Education Project of the Southern Regional Council. As director, I had first hand experience of how absolutely essential to Southern reform the Voting Rights Act was and must continue to be.

The Voting Rights Act and the Civil Rights Act of 1964 were great and rare affirmations of equality. There is more, much more to be done before equality that Americans have dreamed about is achieved. Those of us engaged in the struggle for equal rights and equal opportunity know all too well that the gains made by black Americans have been modest and indeed fragile. But if these times are not propitious for moving ahead, let them not be ripe for moving backward.

Section 5, which has become the critical focus of the Act during the last decade, was enacted pursuant to Congress’ power under the 15th Amendment to legislate protections against voting discrimination. This preclearance provision requires that any new changes in voting or election procedures initiated by “covered jurisdictions” must be approved or precleared by the Justice Department of the U.S. District Court in Washington, D.C. It appropriately places the burden on heretofore recalcitrant jurisdictions by requiring that new changes not be discriminatory in purpose or in effect. It specifically protects blacks and language minorities in regions where their voting interests have been quelled.

Section 5 was enacted only after a century of near futile litigation in which constitutional arguments failed to curtail adequately discriminatory electoral procedures. It was enacted only upon Congress’ long awaited recognition of the fact that disenfranchisement takes many innovative forms. It came only after other civil rights legislation was cleverly skirted or ignored and blacks and other minorities still largely remained outsiders to the political process.

Today diminution and dilution of existing voting patterns and practices must be avoided at all costs. We must be vigilant and ever-mindful of sophisticated procedural devices and schemes which effectively nullify equitable access to the electoral process. What we currently face are 1980 versions of the pre-1965 poll tax and literacy requirements.

In North Carolina, for example, the number of enactments concerning voting changes for all 100 counties from 1925 to 1940 number only half of the amount of voting changes enacted since 1965. And those 193 enactments identified since the passage of the Voting Rights Act pertain only to the 39 North Carolina counties covered by Section 5 as compared to the 100 counties concerned during disenfranchisement.

Section 5, however, is not, by any means, limited to Southern states. It in fact applies to all or part of 23 states including Alaska, Arizona, Hawaii and parts of New England, spanning the four corners of this nation.

As a matter of fact, in New York, three covered counties—King, Bronx and Manhattan—together encompass a larger population than any single Southern state.

History has taught us that nothing short of Section 5’s requirement that a newly drafted electoral scheme have a non-discriminatory purpose or effect can insure the protection guaranteed by the 15th Amendment.

As to the administrative burden on submitting jurisdictions, the Act requires only correspondence by mail or phone while guaranteeing a decision from the Attorney General in 60 days. In our view, such a requirement is not unduly burdensome in light of the potential voting discrimination prevented and the thousands of voters affected by each Section 5 objection.

We cannot afford to differentiate between reasons why the votes of blacks and other minorities are short-changed or diluted: one reason is patently as bad as another. It may be nearly impossible to get inside the heads of John Doe or Richard Roe and pick out specific intent for specific acts. But it is not difficult to see the social intent which lies behind and expresses itself in political structures and processes which hold back what the Supreme Court once called “discrete and insular minorities.” Indeed, it is hard to avoid seeing it; only the singularly willful can manage to do so.

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Since the passage of the Voting Rights Act we have witnessed significant increases in black voter registration as well as black elected officials. The abolition of the poll tax, the presence of federal examiners, the ban of literacy tests and objections to racial gerrymandering have allowed black voter registration to climb to over 3.5 million and the election of over 2,000 black officials in Southern states.

But we also witness continuing plans to keep the black vote impotent. Since 1975, the Justice Department has filed over 5,060 Section 5 objections to discriminatory electoral systems.

Seventeen years is not enough time to undo the ropes with which America’s minorities have for centuries been bound into powerlessness. The minorities of this country have an inalienable right to expect nothing less than fair and equal participation in the political process. Nothing short of the renewal of the Voting Rights Act will satisfy that right.

Vernon Jordan testified before Congress on the Voting Rights Act on May 6, 1981.

Lane Kirkland

It is not surprising then that there is near universal agreement that the Voting Rights Act has been the most successful of this country’s civil rights laws.

Blacks and the language minorities protected by the bilingual provisions are now participating in political life in greatly increased numbers, both as voters and as candidates.

But that relative success does not mean that our nation has reached a state of grace. How much remains to be done is evident from the statistics alone: Section 5 has been in force for 15 years.

Pursuant to its requirements that covered jurisdictions clear with either the attorney general or the federal courts every proposed change in voting laws or practices, more than 800 such proposals have been rejected.

Even if we assume that in some instances the discriminatory effect was inadvertent, it is evident that there remains a solid determination in some quarters to block equality of voting rights.

Indeed, in one state—Mississippi—since 1975, there have been as many Section 5 Attorney General objections to proposed discriminatory changes in voting laws as there were in the previous 10 years of the Act’s existence.

Statistics, of course, are only a lifeless summary of a living reality. Numbers cannot gauge the depth and range of emotion—the will for power, the fear of those who are different, the racial class and cultural antagonism—expressed in laws restricting the right to participate in political life.

How can numbers measure the effects of 95 years of exclusion from the right to vote and the right to run for office, of 15 years of effective remedial action, or of an abrupt end to that effective remedy?

But those numbers, as well as common sense, are sufficient to warn us that we are discussing today’s problem, not yesterday’s, and that it is far more likely than not that to end or weaken this law is to end or to weaken the civil rights of the blacks and language minorities the law now protects.

How, then, should Congress approach the question of continuing or abandoning the Act? We believe the Act itself provides the answer.

Section 5 places the burden on the submitting jurisdiction to show that its proposed change “does not have the purpose and will not have the effect” of denying or abridging the right to vote on account of race or color or membership in a language minority.

Under this provision, those whose laws and practices have discriminated in the past must demonstrate that they do so no longer.

We suggest that Section 5 provides a fair and reasonable principle to apply in the present debate. We submit the burden should be put on those who would limit or repeal the Act to prove their case.

Let them demonstrate that the legacy of nearly a century of rights ignored has been wholly overcome, that the lessons of 1870-1965 concerning the inadequacy of the right to sue after a change in voting laws no longer applies, and that these few years of adequate response by the federal government have brought about such a total change of heart that such a response is no longer needed.

Or, if they seek changes under the soft euphemism of perfecting amendments, let them demonstrate that their proposal provides stronger safeguards for civil rights than the present system.

We do not believe that the opponents of the Act are able to carry this burden, but we deeply believe that it is theirs to carry.

Lane Kirkland is the president of the national AFL-CIO. A native of South Carolina, Kirkland testified before Congress on May 6, 1981.