Section 5 and Voting Changes: The Heart of the Act

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.