The Bolden Decision Stonewalls Black Aspirations

By Laughlin McDonald

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

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

Mobile, built around the rim

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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—will be denied any remedy for exclusion from office.

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

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

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

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

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

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

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

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

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

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

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

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

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

North Carolina Reapportionment: 1981 Version

By Susan M. Presti

Vol. 3, No. 2, 1981, pp. 10-11, 19

Reapportionment—the redrawing of electoral district lines based on the results of each decennial census—looms as one of the most important tasks facing the 1981 North Carolina General Assembly. National population shifts and those within the state during the past decade could result in significant changes for the state. When the final results of the 1980 census are released, the power balance between the coastal, piedmont, and mountain districts may be upset. “(Reapportionment) will be, in my opinion, the key issue of this General Assembly,” says Alex K. Brock, director of the State Board of Elections.

Historically, the power to reapportion has been wielded in a highly political fashion. The majority party in a state legislature has traditionally sought to limit the minority party’s influence by drawing grossly misshapen districts. In 1812, Massachusetts Governor Elbridge Gerry approved a reapportionment plan in which one district was so distorted it resembled a salamander. Such legislative legerdemain has thereafter been referred to as “gerrymandering.”

Throughout the 1920s, as more of the country’s rural population migrated to cities and as political machinations continued to dominate reapportionment decisions, electoral districts within individual states grew to increasingly disparate sizes. In 1946, for example, Cook County, Illinois, contained 914,000 citizens while a downstate district had only 112,000.

In Baker v. Carr (1962), the U.S. Supreme Court established judicial jurisdiction over questions of reapportionment. A series of landmark decisions followed, known as the “one person, one vote” rulings, in which the Supreme Court began to redress electoral district imbalance stemming from many types of discrimination—political, racial sexual, ethnic, rural-urban, etc. These rulings, combined with regulations included in federal and state policies, have created a complex set of criteria for reapportioning.

Because the profusion of new regulations has complicated the reapportionment process, many states have turned to computers and independent commissions as the most practical means of redrawing electoral districts. For the 1981 reapportionment, several states are relying extensively on computers. The New York Legislative Task Force on Reapportionment has spent almost $1 million on a computer package. California, Oklahoma, Minnesota, Illinois, New Mexico, Indiana, Texas, Michigan, and many other states are expected to use computers for sophisticated mathematical analyses of proposed districts.

Seventeen states have utilized independent commissions rather than depending exclusively on their legislatures. Eleven states use independent commissions for actual apportionment; six use them in an advisory capacity or as a fall-back unit in case the state legislature cannot develop a suitable plan. Legislation now before Congress would vest all responsibility for congressional reapportionment in independent commissions that would be established in each state.

The North Carolina Experience

Factors unique to North Carolina also complicate the reapportionment process. As the Piedmont counties grow, for example, they are becoming so large that they cannot be grouped easily with contiguous neighbors to form electoral districts.

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Their combined populations are too large. (Electoral districts must be composed of counties with contiguous borders.) The North Carolina Constitution prohibits the division of counties into smaller units for the purpose of redistricting state electoral zones. This restriction may create problems for redistricting the Piedmont, problems that will carry over to congressional reapportionment. There is no federal law preventing a smaller unit—for example, a township—from being used as the primary building block of congressional districts, but North Carolina has a long history of refusing to break county boundaries for representational purposes.

In addition to the demands of equal population, any redistricting plan in North Carolina must meet the demands of equal representation. Republican, minority, rural, and liberal voters—usually concentrated in specific parts of the state—should be districted so that their votes can have a fair expression, not gerrymandered in such a way as to undermine their strength.

One further complication for North Carolina is the Voting Rights Act of 1965. Because of past evidence of voting discrimination in 39 counties, the Act requires that any reapportionment affecting these counties must be approved by the U.S. Attorney General. He must determine that “the plan in question does not have the purpose or intent of abridging the right to vote on account of race or color,” says David Hunter of the Justice Department’s Voting Rights Section. If the Attorney General rejects a North Carolina reapportionment proposal, a new plan has to be developed.

Court decisions in the 1960s forced the General Assembly to develop new plans for North Carolina. In both 1965 and 1966, a U.S. District Court rejected the state’s reapportionment. Finally in 1967, the courts accepted the legislature’s plan. In 1971, the Justice Department successfully challenged portions of the redistricting that affected the 39 counties cited in the 1965 Voting Rights Act. The redistricting of the unaffected 61 counties was allowed to stand.

Despite the complexities of the task, the North Carolina General Assembly has not yet appointed any legislative committees to prepare for the pending reapportionment. Some preliminary work has been done in the state but has not been coordinated by the legislature. The General Assembly’s Division of General Research is preparing a reapportionment briefing book for legislators which will summarize pertinent court decisions, federal and state restrictions, and logistical questions on reapportionment. The state Office of Data Services has performed some computer runs on the preliminary census data. If requested by the legislature, the Office could provide computer services to aid in reapportioning the state. In 1971, no computers were used “at all,” according to Clyde Ball, then Legislative Services Officer.

The process the General Assembly will use to reapportion North Carolina in 1981 will not become clear until the General Assembly convenes. Rep. Liston Ramsey (D-Madison), in all likelihood the next speaker of the House, says that the process probably will be similar to that of 1971: a House committee will be established to redistrict the House, a Senate committee will be established to redistrict the Senate, and a joint committee will be established to reapportion
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congressional districts. Each committee will consider plans submitted by any legislator, and Rep. Ramsey already has invited North Carolina’a eleven congressmen to submit reapportionment plans to the General Assembly. Each committee will propose its final plan as a piece of legislation that must be ratified by both houses. (In 1971, the Senate accepted the proposed plan of the House and the House accepted the Senate’s plan.)

According to Ramsey, the use of computers in the 1981 reapportionment “will be up to the chairmen of the various committees.” And like 1971, apparently no serious consideration will be given to the idea of an independent reapportionment commission. Ramsey rejects the concept of an independent commission for North Carolina. “I expect the legislature to do it (reapportionment) because the Constitution says we shall do it,” he says.

Citing the Constitution serves to disguise the fact that reapportionment still is perceived by many legislators and others as being the sole domain of state legislatures. Nationwide, politicians from both parties tend to see reapportionment as legitimate political booty. Larry Mead, a member of the Republican National Committee research staff, has said, “We want reapportionment to be fair, but the state legislatures are sovereign. Our job isn’t to save ourselves but to build the party from the bottom up.” Consequently, “the national drive by Republicans to control more statehouses by electing more Republican legislators in November is keyed to the upcoming reapportionment,” writes Dan Pilcher.

Rapid changes in reapportionment law over the last twenty years have increased the complexity of redistricting; rapid changes in reapportionment technology have increased the number of ways to develop redistricting plans. Despite these changes, North Carolina in 1981 will reapportion itself in much the same way it has in the past. “Reapportionment is a political process.. . and that’s the way it should be,” says Brock.

Susan M. Presti is a staff member of the North Carolina Center for Public Policy Research, an independent research group. This article is reprinted from N.C. Insight, the quarterly magazine of the Center.

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.

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.

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.

Voting Rights Act is Needed in New York

By Robert Adams

Vol. 4, No. 1, 1981, pp. 38-39

I speak as the elected Attorney General of the State of New York—a state which has three of its largest counties covered by the special provisions of the Voting Rights Act. I believe that extension of those provisions is essential.

The Voting Rights Act’s prohibition against discrimination in voting applies nationwide. The special provisions of the Act apply only to states and political subdivisions that meet certain specifications. Kings, New York and Bronx counties in New York state are subject to the Act’s special provisions, including Section 5, which requires preclearance of any changes in voting, and Section 203, which requires bilingual elections. New York’s experience in complying with these requirements convinces me that neither requirement is overly burdensome and that both effectively serve to protect the rights of minority citizens.

The counties of Kings, New York and Bronx first came within the purview of the Act in March, 1971. It was then that the United States Attorney General determined that the literacy requirement imposed by New York law was a “test or device” within the meaning of the Voting Rights Act.

Since becoming subject to the Act’s preclearance requirement, New York has had approximately 500 changes in voting practices reviewed by the Justice Department. The Department raised objections three times: twice in 1974 and once in 1975.

In September, 1974, the Department objected that certain polling places had been located in New York County in apartment complexes with mostly white tenants, although polling places had not been similarly located in complexes with mostly minority tenants. As a result of the objection, steps were taken to make polling places equally accessible to white and minority voters. In September, 1975, the Justice Department objected to the consolidation of two Democratic leadership districts in Manhattan. The proposed consolidation would have dismembered a predominantly minority district, with the possibility that the votes of minority voters would be diluted. As a result of the objection, the consolidation plan was abandoned. In each case, the objection was interposed in a timely manner, causing the minimum necessary disruption to the electoral process. And, in each case, the matter was resolved without litigation.

The third objection, and the one which resulted in a United States Supreme Court’s decision, involved the 1974 redistricting of State Assembly, State Senate, and Congressional districts in Kings and New York counties. Most of the redistricting was unobjectionable. However, the Justice Department was concerned that the creation of certain districts in those two counties would have the effect of abridging the right to vote on account of race.

The state chose to redraw the districts to prevent vote dilution. The reapportionment amendments were submitted to the Justice Department on May 31, 1974 and were approved one month later. However, white voters in Kings County sued, alleging that the plan violated the Fourteenth and Fifteenth Amendments.

Ultimately, the Supreme Court upheld the plan, ruling that the Constitution does not prohibit racial considerations when they are used to minimize the consequences of racial discrimination. New York, in redrawing the districts, had appropriately sought to alleviate the consequences of racial inequities and to achieve a fair allocation of political power among white and minority voters in Kings County. Under the Voting Rights Act, the effectiveness of minority voting power could not be diluted by dividing minority communities among predominantly white districts.

In the 1970s and 80s, the issues of voting discrimination have shifted from vote denial to vote dilution. With this shift, the preclearance requirement of Section 5 has become crucial. The overwhelming majority of objections interposed under Section 5 in the last ten years have been to voting changes that would dilute newly-acquired minority voting strength. Thus, to allow Section 5 to expire just as the post-1980 census redistricting is taking place would be particularly inappropriate.

The 1980 and 1990 post-census redistricting create the opportunity for diluting the voting strength of the growing numbers of minority voters. This seems to me argument enough for a ten-year extension of Section 5’s preclearance requirement. Additional argument, however, is found in Section 5’s deterrent effect. Some point to the fact that of the hundreds of submissions from New York, only three have resulted in objections. They cite this as evidence that Section 5 has become an unnecessary burden. I believe rather that these figures are evidence of the Act’s effectiveness as a deterrent. A former member of the New York Senate’s Election Committee has described to us how amendments to the Election Law, which might have had a discriminatory effect if passed, were often defeated or not even offered because of the barrier erected by the Voting Rights Act and the need for preclearance by the Justice Department.

The burden of meeting the preclearance requirement is one we can well afford. It is far less costly and far more expeditious to process five hundred voting changes through the Justice

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Department than to litigate through the courts the manifold challenges that would ensue absent preclearance. And, more importantly, Section 5 is a crucial safeguard of the gains the nation has made in transforming the promises of the Fourteenth and Fifteenth Amendments into reality.

The language minority provisions of the Voting Rights Act are equally important in guaranteeing the right to an effective vote. New York State has a Hispanic population of at least 1.6 million people, 1.4 million of whom live in New York City.

New York’s experience with bilingual elections demonstrates that although local officials may indeed be committed to a fair electoral process, it may take federal legislation or a court order to ensure that the commitment becomes action. The 1975 amendments to the Voting Rights Act, requiring bilingual elections in areas with significant numbers of language minorities, do precisely that that. The Act’s bilingual election provision, like those of Section 5, apply only to the counties of the Bronx, Kings and New York, where they serve to reinforce federal court mandate.

The New York experience demonstrates the importance of the bilingual provisions and the fact that they are not burdensome or costly to implement. In New York City, all printed election materials are bilingual. To the extent possible, all forms are printed in both Spanish and English on the same form—either front and back, top and bottom, or left and right side. This policy extends even to the “No Smoking” signs. The envelope containing the “Notice of Cancellation of Registration” has a return address in English and Spanish, and a warning that the enclosed material is “very important … concerning voting status” in both English and Spanish. And, needless to say, the enclosed notice is entirely bilingual.

The financial burden to the state of bilingual elections is minimal; beyond start-up costs, the sums are truly insignificant. For example, all translation of state-wide registration and voting materials is handled by the New York State Board of Elections. The translations are done by the chairman of the Political Science Department of the state university at Albany, and cost, on average, just over $1,000 per year for the entire state. In Westchester County, with a Hispanic population of over 45,000 people, the costs of providing bilingual materials is approximately $3,000 per year, or less than .2 percent of the County Board of Elections’ budget.

The return on these insignificant expenditures is enormous. It is estimated that since New York first provided bilingual elections, Hispanic registration has increased by 20 percent. Since 1965, the number of New York Hispanic representatives in the state and federal legislatures has more than doubled. With minimal costs or burden, New York has done much to integrate the Hispanic community in New York into the electoral process.

To those who contend that the bilingual provisions of the Act are no longer necessary, I point to the fact that significant numbers of people still emigrate to the United States from Puerto Rico alone. All of them, and many other Hispanic citizens who are not fluent in English are citizens and entitled to vote. The Fourteenth Amendment’s guarantee of voter equality demands continuation of the Congress’ commitment to the Act’s bilingual provisions.

The special provisions of the Voting Rights Act apply to all or part of 22 states. Three New York counties, with more than 4.8 million people, are covered by the Act’s special provisions. More people are protected in these three counties than are protected in the States of Alabama (3.9 million), Mississippi (2.5 million) or South Carolina (3.1 million).

I am troubled by the argument that the Act singles out the Southern states. Even the few statistics I have cited indicate otherwise. Furthermore, the Act’s special provisions are triggered only by practices that are demonstrated to have a discriminatory impact, regardless of the state where they occur.

I am equally troubled that one response to this perception of regional discrimination is that preclearance should be implemented nationwide, without a trigger mechanism. Unless there is a need in all jurisdictions, it seems simply wasteful and arbitrary to extend preclearance in this fashion. One can only suspect that the effort to extend preclearance nationwide is in reality an attempt to undermine the Act’s effectiveness.

We can ill afford to send to the American people a signal that voter equality is no longer a top national priority. Failure to extend the special provisions of the Voting Rights Act would do just that.

Robert Adams testified before Congress on June 10, 1981.

An Update on Voting Changes in the South

By Staff

Vol. 4, No. 2, 1982, pp. 5-11

Since last summer, when legislative committees began meeting quietly and computers started humming, reapportionment in the South has charged into the political thicket like a herd of . . . well, elephants, some white Southern Democrats are now claiming, creating thunderous noise along ancient paths. Even as the campaigns approach, Southern legislative leaders hold fast to the belief that redistricting plans must protect incumbents and cap, if not minimize, minority voting strength.

An unexpected obstacle in the path of Southern reapportionment has been the Justice Department, which reviews all voting changes–including redistricting–in eight Southern states. Empowered by the Voting Rights Act, the Attorney General (in practice, the Assistant Attorney General and the staff of the voting rights section) is required to disapprove a voting change if the local or state government fails to prove that its plan is not racially discriminatory in purpose or effect.

The surprising fact is that the Reagan Administration’s Justice Department has enforced this provision and disapproved of statewide redistricting plans in Georgia, South Carolina, North Carolina, Virginia, and Texas. While approving a congressional district plan in Alabama, Justice is expected by inside observers to object to statewide plans in Alabama and Louisiana. It hasn’t acted in Mississippi yet.

In the face of the Reagan Administration’s weakening position on renewal of the Voting Rights Act, tax laws for segregation academies, and other civil rights issues, this string of objections is unique, if not miraculous. While civil rights lawyers are cautious in commenting on the pattern, Southern Democrats in the state Legislatures say the motivation is an opportunity for Republican political gains.

For example, some white North Carolina Democrats from Charlotte, Raleigh, and Greensboro charge that Justice’s interest in single-member districts stems from a political awareness that Republican candidates in suburban areas will be helped by the creation of majority black districts in urban areas, leaving white Democrats with out a majority in much of the metropolitan area.

Some white Democrats in Georgia echo that sentiment as they now protest Justice’s objection to a 57 percent majority black congressional district which the state legislature passed as it turned down a 69 percent district. “The Republican Administration is interested in getting rid of two white Democrats,” an administrative assistant to a Georgia congressman said, “and replacing them with a black and a Republican.”

Southern black state legislators (who are without exception also Democrats) counter these arguments with a string of facts about specific redistricting plans. They note that while objecting to several Southern redistricting plans, Justice often stops short of disapproving of most of the districts which were drawn to cancel or reduce black voting strength. In Georgia the legislature adopted a plan that will reduce by one the number of majority black districts in Atlanta and failed to draw several majority black districts in the rural Black Belt. In its objection to the plan, Justice did not disapprove of these districts but focused on three districts elsewhere. “It’s more of an approval than a disapproval of discriminatory districts,” says State Rep. Tyrone Brooks about Justice’s actions-in Georgia.

Moreover, despite possible Republican gains in some redistricting, white Democratic legislators have diluted black voting strength in places where Democrats would be replaced not by Republicans, but by other Democrats. Here the winning Democrat would, however, be a black. And there lies the rub.

From Virginia to Texas, legislatures have drawn districts in rural, heavily black or Hispanic areas that reduce or maintain at a low level the voting strength of a majority of non-whites. This pattern appears throughout the South’s Black Belt despite the fact that the population of this rural, predominantly black area has increased in several states. The Alabama legislature’s plan shaved off enough percentages in five existing districts with at least 60 percent black population so that blacks in the proposed districts do not have a voting majority. Almost every Southern state adheres to similar practice.

In recent weeks the federal courts have begun to intervene in state reapportionment, usually issuing orders for new plans where the state is unable to adopt a lawful plan in time to get the 1982 elections underway. While the

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courts have been seen as a major protection for black voting interests in the past, the early court orders in Southern reapportionment show no substantial promise that the courts will offer sweeping remedies for black voters. In South Carolina, a federal court has adopted the congressional plan which the lower chamber of the South Carolina legislature had passed over the objections of the legislative black caucus. In Texas, the two court orders for congressional and state house redistricting offer a mixture of improvements and disappointments for minority voters. Lawsuits asking for court orders in other states are pending in Virginia, North Carolina, South Carolina, and Alabama.

Below is a summary of the reapportionment efforts in the 11 Southern states.

Alabama

Air traffic between Montgomery and Washington D.C., has been heavy in the last few weeks with several confabs between legislators and Justice Department officials. Legislators and attorneys representing the state have met with U.S. Assistant Attorney General William Bradford Reynolds and his staff several times, and legislative black caucus members as well as civil rights lawyers and community leaders have also journeyed to Washington to urge objections to the reapportionment plans for the state house and senate.

The groups voicing opposition to the state plan include the NAACP, ACLU, Common Cause, Alabama Democratic Conference and the League of Women Voters. These groups opposed the plans during the special session last fall and have protested both the plans and the closed-door decisions that developed them.

Recent data from the Alabama legislative staff indicate the state plan proposes to reduce black voting strength at the polls not only in the Black Belt but in districts presently held by black incumbents elsewhere. In the Black Belt, white State Rep. Bill Edwards’s district is reduced from a 70 percent black majority to 50 percent. Rep. Rick Manley’s district is reduced to 59 percent and Rep. Leigh Pegue’s district drops to 55 percent black. Both are presently above 65 percent. Manley served as chairman of the reapportionment committee and has been one of the principal lawmakers visiting Washington.

In urban areas the black percentages in some districts are also significantly reduced. Rep. Yvonne Kennedy, chairwoman of the legislative black caucus, saw her Mobile district go from 80 percent to 69 percent black and black State Rep. Bill Clark’s district in the Mobile area was also reduced from 90 to 68 percent black. In the Birmingham area, the reapportionment plan goes even further. It eliminates a black district–thus pitting two black incumbents against each other. Another district previously more than 60 percent black will be only 53 percent black. All told, the proposed plan would eliminate as many as five districts where black voters could elect responsive candidates.

A group of Alabama citizens has filed a federal court suit in Montgomery, alleging the plan violates “one person – one vote” and the voting rights of blacks. Meanwhile, Justice has granted the state an extension until April 15 to explain its plans. Capitol insiders suggest that legislative leaders are ready to compromise and are developing plans which they hope will appease Justice and minority objections.

The Justice Department recently approved the Alabama Congressional plan which was not the subject of controversy.

Arkansas

Declaring that the plan violated the constitutional doctrine of “one person – one vote,” a federal court struck down the Arkansas congressional reapportionment plan which had proposed hardly any changes from the 1970 plan. The court is forcing the legislature to try again to hold the differences between the populations of each district to reasonable limits.

But it is legislative, not congressional reapportionment that continues to be the subject of talk by activists in Little Rock. Civil rights advocates still hope to challenge the state legislative redistricting plan which is a mixture of single and multi-member districts. For the last several years the Arkansas legislature has had only three or four black members.

“It’s that damn ‘purpose’,” explains the head of a biracial lobbying group in Little Rock. “We know one of the primary purposes of the plan was to minimize the black vote in legislative races, but proving it was the purpose has us stumped for now.” Arkansas is not covered under Section 5 of the Voting Rights Act and the congressional and state plans need not be submitted to Justice for approval. In court, plaintiffs are required to prove both the purpose and effects of racial discrimination in voting cases.

Georgia

In early March, the Justice Department notified Georgia officials that it was maintaining its original objection to Georgia’s congressional plan, where the dispute centers around a majority black district in the Atlanta metropolitan area. State officials promptly challenged Justice’s objection in federal court in Washington.

The plan submitted to Justice unsuccessfully includes a fifth district that is 57 percent black. This was adopted during the special session last summer only after the state house refused twice to accept a congressional plan passed by the Georgia senate that included a 69 percent black district. Black legislators vehemently objected to the compromise plan which passed the senate by only a few votes and over the objections of Georgia’s two black senators, Horace Tate and Julian Bond, as well as the senate minority and majority leaders.

Justice objected also to parts of the state house and senate plans. The General Assembly then changed the house and senate plan to meet the requirement from Washington.

In the senate, Justice’s objection included two districts, one in metropolitan Atlanta (DeKalb County) and the other in Augusta. The legislators changed the DeKalb district to increase the black percentage to nearly 70. The Augusta district was drawn to increase the black population to 53 percent. The latter district is the seat of Senate majority leader Tom Allgood.

In the house Justice’s objection was to the Dougherty County house seats in southwest Georgia. Though the

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county’s black population has grown by nearly 10 percent in the last few years, reapportionment created only one black house district–the one which now has a black incumbent. Black legislators and community groups protested the dilution of minority voting strength in the rural Black Belt of Georgia, particularly the area around Dougherty. The Dougherty plan was redrawn to create two black districts–one with a 69 percent black majority and one with a 59 percent majority.

State officials’ refusal to cooperate on the congressional issue was the result of pressure from lame-duck Gov. George Busbee and newly appointed state attorney general Michael Bowers. Bowers must run for election in the fall.

A three-judge panel has been appointed for the state’s appeal in Washington and the Georgia legislative black caucus has intervened along with private citizens. The NAACP is also requesting the right to intervene. Although the state opposed intervention, the judges ruled on March 22 in favor of the caucus and private plaintiffs.

State Rep. Billy Randall, chairman of the black caucus, criticized the the action by-Bowers and others as continued discrimination against minorities, but he is equally dissatisfied with Justice’s objection. Randall believes the objection did not go far enough in disapproving dilution of black voting strength in house and senate districts in the Georgia Black Belt.

Florida

In Florida the battle lines on reapportionment appear to be drawn as clearly between the house and senate as between the legislature and community groups. Unlike most states, Florida’s two legislative houses have been unable to reach a “gentlemen’s agreement” where each house will draw up its own plan which would be adopted automatically by the other. The result is the development of house and senate plans by both houses. And none agrees with any other.

Though there is disagreement between the two bodies, both have created plans with single-member districts for the first time in Florida reapportionment history. Both house and senate plans have kept the total population deviation to less than two percent in each district. Legislators believe both these actions will protect against possible lawsuits.

One major disagreement revolves around the “nesting” of districts–a device which places a few house districts within the “nest” of a larger senate district. Alabama has used such a plan since its last reapportionment. Florida’s house supports such a concept, but not the senate.

Another disagreement between the houses is the senate election schedule. Florida’s senate members are elected for four-year terms, one-half elected every two years. The senate would like to have the senators elected in 1980 serve until 1984 and then run under new district lines. The result would be that only half the senators would have to run in November under the reapportioned districts. The house has refused to agree to such a plan amid rumors that a number of house members are interested in a senate seat.

Florida’s constitution allows from 80 to 120 house members and between 30-40 senators. Here the senate and house also disagree. The most recent senate plan creates an 80-member house. But the house plan (which is expected to eventually be accepted) calls for a 120member body–its present size.

The disputes between the two houses have spilled over to community groups involved in reapportionment. The NAACP supports the senate’s plans and Common Cause has backed the house’s plans. The groups have developed individual alternative plans with only limited support for each other’s actions.

Common Cause developed a plan which some black legislators and NAACP leaders believe will result in fewer voting-majority black districts. Common Cause maintains that its plan creates the most minority districts in the house (nine black and four Hispanic districts with over 50 percent minority populations). While admitting that its criteria for a “black or Hispanic” district is 50 percent or more minority population, Common Cause maintains that it has taken into account “population growth, voter registration, and voting patterns.” In most Southern states the minority population eligible to vote is usually 10 percentage points below the total minority population.

The house plan presently includes seven districts with 58 to 80 percent Hispanic population–all in the Miami area. Only two districts are more than 65 percent Hispanic. The plan includes seven black districts between 52 and 73 percent, and three black districts between 43 and 49 percent. Only one district in the Miami area is 65 percent or more black. The others are scattered throughout the state. A major concern of community groups is the lack of consideration shown to Florida’s Black Belt, the area surrounding Tallahassee.

The Common Cause plan allows for a 53 percent majority-black district including Leon County in the Black Belt. The plan also includes a 56 percent black district in metropolitan Miami where the house plan creates a 45 percent black district. Five blacks and two Hispanic legislators now sit in the Florida house.

Senate plans passed by either house include two Hispanic districts over 50 percent around Miami. The house plan creates a district that is 65 percent Hispanic while the senate plan calls for a 61 percent district in its own chamber. Both plans create a district around Jacksonville that is 47 to 48 percent black.

Community groups have indicated that there is little likelihood of creating congressional districts with more than 35 percent black population.

Louisiana

The Justice Department could decide before the end of April if the Louisiana congressional redistricting plan violates the Voting Rights Act. Civil rights groups and the senate legislative black caucus, who supported a majority black congressional district during the last legislative session, have filed comments against the state plan which divides the parish of New Orleans almost in half.

In its pleadings before Justice, the black caucus notes that, were it not for the governor’s veto, Louisiana would now have a plan with a majority black congressional district composed of the Orleans parish. Late last year when the Democratic legislature adopted a 55 percent black district, Republican Gov. Dave Treen vetoed the bill. Quickly abandoning the majority black district, the legislature drew the plans to adhere to the governor’s objections. That plan passed and is now before Justice.

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Reapportionment plans for the two houses of the state legislature are also before Justice, which asked in March for more information about their origins. Objections are also being raised to these plans which create 14 legislative districts with 50 percent or more black populations. To illustrate that the plans effectively dilute black voting strength, the black caucus has developed an alternative plan that creates 20 legislative districts with a majority of black registered voters.

Some observers believe the congressional plan may test the willingness of Justice to enforce Section 5 regardless of party politics. Much of the case against the congressional plan focuses on the veto of Gov. Treen, one of the few Republican governors in a Southern state covered by the Voting Rights Act. “No case I’ve seen before Justice better evidences that a plan was rejected by the legislators because it helped urban blacks,” commented a lawyer working with a legal defense fund in Washington. “We’ll see if Justice sees the evidence differently because of Treen.”

Mississippi

Schooled in more than a decade of litigation opposing fair reapportionment, the Mississippi legislature has proceeded with redistricting its two houses and five congressional seats with a wealth of computer runs and detailed maps and a careful avoidance of any plan that increases the potential for added voting strength of blacks. Turning back efforts of the legislative black caucus to create a majority black congressional district, leading state lawmakers appear willing to assure black incumbents of their seats, to limit majority-black districts to the number provided in the existing court-ordered plan, and generally to adopt “a holding action,” in the words of one veteran civil rights worker in Jackson.

The fight over the congressional plan late last year centered on the creation of a majority-black district from the Delta counties. Several plans were proposed in hearings and on the floor of the legislature which had districts with black populations ranging from 53 percent to 65 percent. All began somewhere in the Delta counties and the “65 percent” proposal by black State Sen. Henry J. Kirksey encompassed part of the Delta and the city of Jackson.

The congressional plan, approved by a 4 to 1 vote, maintained the character of the existing congressional districts. The new plan is now before the Justice department and is being opposed by members of the black caucus and statewide civil rights groups.

The likely reapportionment plan for the two state houses will maintain 46 majority-black districts in which 17 incumbent black legislators now reside. Of the 46, only 2S house and senate districts will have black majorities of 60 percent or more, a critical fact in a state where the black registration rate is usually 10 to 15 percentage points below the general population. Sen. Kirksey has proposed alternatives to the state plan but has been unable to convince a substantial number of his colleagues that his plan better avoids dilution of black voting strength. “Too many of the districts that are majority black barely hang over the 50 percent line” remarked David Green, a member of the legislative black caucus. “These districts just appear to be majority black when they really aren’t.”

Challenges to the redistricting plans for the legislature before Justice and the courts are also expected in Mississippi.

North Carolina

With the advice of former U.S. assistant attorney general Jerris Leonard, North Carolina state lawmakers passed their third set of reapportionment plans in March, combining historical multi-member districts with a few single-member districts which they hope will satisfy the Justice Department’s earlier objections. Lawyers for the NAACP Legal Defense Fund, however, are predicting another Justice objection to the new state house and senate plans.

While a lawsuit in the mid-1960s required the redistricting of the general assembly, North Carolina had been immune to much of the disputes over redistricting that spread across the South in the 1970s. Its recent problems began when the NAACP Legal Defense Fund filed suit in federal district court in Raleigh challenging the state legislative plans, the congressional plan, and a state constitutional amendment passed in 1968 requiring that all state legislative districts follow county lines. That amendment had not been submitted for approval to Justice as required under the Voting Rights Act.

Justice found late last year that the requirement diluted the voting strength of blacks and disapproved it. Meanwhile, legislative leaders were convinced that the differences in population among the various legislative districts were greater than the courts would permit under the “one person – one vote” constitutional theory. Thus, the general assembly reconvened and passed a new plan for its state house.

The old state senate plan and the new house plan were then submitted to the Justice Department which found that both followed the 1968 amendment and diluted black voting strength. Justice also found that the congressional plan had the purpose of diluting black voting strength by eliminating Durham, a center of political activity for blacks, from the second congressional district that has a black population of over 40 percent.

In early February, North Carolina lawmakers returned in special session and adopted a third set of reapportionment plans and for the first time created some single-member districts which crossed county lines.

No other issue seems to have caused as much stir in North Carolina legislative politics in recent history. “Some of us are being sacrificed on the altar,” said State Sen. Melvin Daniels who represents part of the northeastern section of the state. The new house plan creates two majority-black districts and the senate plan has one 52 percent majority-black district. The legislature carefully avoided drawing single-member districts in the metropolitan areas such as Charlotte Winston-Salem, and Raleigh, since those areas are not covered under section 5 of the Voting Rights Act.

J.K. Butterfield, a black leader from northeastern North Carolina, presented a reapportionment plan at a public hearing which would create a total of nine majority black districts in the house and senate. But his plan was never introduced. For a time, the legislature did consider creating another majority-black senate district but apparently decided one was enough.

The new congressional plan was approved in early March and may prompt a black former U.S. attorney from Durham to challenge incumbent U.S. Rep. L.H.

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Fountain in the Democratic primary.

Several observers are predicting that by mid-April the Justice Department will bar the use of the third set of state legislative plans. While state officials have threatened to appeal an adverse ruling by Justice to the federal courts in Washington, the legislature passed a new bill providing for four different possible dates for primary elections–all hinging on when a state house and senate plan would become lawful. That law, too, is now before Justice.

South Carolina

In a surprising decision, a federal court panel adopted in early March a congressional plan for South Carolina which had been passed earlier by the state house of representatives but not by the state senate. The NAACP, which had filed suit asking the court to draw the congressional lines, protested the court’s opinion and promised to appeal the decision and seek an objection from the Justice Department.

The court-ordered plan makes few changes in the present congressional districts, although it does split Berkeley County, a suburb of Charleston. The division of the metropolitan area into two congressional districts rubbed some powerful state senators the wrong way, and they refused to approve the plan when it was before them.

The NAACP has presented to the federal court a plan that created a district with a majority black population. In a hearing on the issue, senior district judge Charles E. Simons attacked the NAACP plans as “gerrymandered to give more than 50 percent blacks.” The state house plan which the court has embraced has no congressional district with more than a 40 percent black population.

State legislative officials are moving rapidly to have the new plan implemented. State senate judiciary committee chairman L. Marion Gressette, one of the most powerful men in South Carolina politics, contends that the court plan need not be submitted to Justice for review under the Voting Rights Act. Civil rights lawyers disagree, and another legal battle may develop.

While the South Carolina legislature hopes that it may be near the finish line with congressional reapportionment, it still faces the task of drawing new lines for its own two houses. Justice disapproved the first plan of the state house because of the discriminatory effects of district lines, primarily in the Black Belt areas where the legislature systematically leveled the percentages of blacks.

The state senate hasn’t even begun to consider a redistricting plan. The all-white legislative chamber is postponing the task on the apparent hope that it can secure Justice approval of a plan more easily later in the year. Some black leaders, including members of the legislative black caucus, have charged that the state senators hope the Voting Rights Act will be weakened before the fall and that a plan without any majority black districts would be subjected to less scrutiny under a new act.

The all-white senate has been a subject of challenge for the past few years. The Carter Administration’s Justice Department filed a federal suit challenging the present districts of the state senate but withdrew the suit after the Supreme Court’s 1980 Mobile opinion, which now requires black plaintiffs to show that voting practices have both the effect and purpose of racial discrimination.

A plan submitted to Justice under the present Voting Rights Act’s Section 5, however, requires the state or local government to prove that the plan does not have the purpose or effect of racial discrimination.

Tennessee

Tennessee is the only Southern state which has passed redistricting plans that aren’t facing serious-legal challenges. Not covered by the preclearance provisions of the Voting Rights Act, Tennessee also has had the advantage of adding a congressional seat to its delegation instead of fighting to determine who must be eliminated.

Early forecasts had warned that U.S. Rep. Harold Ford of Memphis, one of only two black congressmen in the South, would be gerrymandered out of his strongest support in western Tennessee. The fears proved unfounded, and Ford apparently is now assured of reelection.

Texas

After months of almost daily developments, two separate federal courts in Texas have issued orders establishing the boundaries of both congressional seats and the state’s general assembly for the 1982 elections. While the orders are under appeal, they bring into focus disputes that have involved lawyers, politicians and judges throughout the state.

In the last few months a scorecard on Texas reapportionment has required two or three sheets just to list the major players: the Democratic legislative leadership, the governor, a handful of state officials on the legislative redistricting board, a couple of state court judges, six federal court judges, Hispanic and black civil rights groups, and a couple of dozen lawyers representing all sides.

Despite such a large cast in what the usually well-modulated editor of the Texas Government Newsletter calls “arcane legal machinations and Byzantine maneuverings,” Texas redistricting has evolved around the three major issues of reapportionment. Will Republicans or Democrats gain? Will incumbents protect their own offices? And will racial minorities get a fair chance to elect representatives of their own choosing? Nobody has won all or lost everything but, if the court-ordered plans remain, blacks and Hispanics will probably have lost most.

Before the reapportionment last year, Hispanic leaders had maps showing how a congressional district with a majority Hispanic population should be drawn in southwest Texas because of increased population. The general assembly balked, and no such plan was included. While Justice found the congressional plan in violation of the Voting Rights Act and, more recently, a federal court in Austin has drawn a new congressional plan, the majority Hispanic district is still nowhere on the maps.

The state legislative plans drawn by a Dallas three-judge panel do improve the voting strength of Hispanics

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around San Antonio and El Paso but fail to avoid diluting black and Hispanic voting strength in the urban areas. The plan is “temporary” since the state legislature will have to try again in 1983 to adopt its own plans that meet constitutional muster.

Federal court intervention was required largely by the upcoming May 1 primary in Texas. In order for candidates to register and run for office they had to know what districts would be lawful.

While reapportionment will now be decided in the federal courts, the May 1 primary remains an uncertainty in the face of appeals and further challenges to the orders of the three-judge panels. More developments are expected daily.

Virginia

In mid-March the fifth redistricting plan drawn by the Virginia House of Delegates was rejected by the Justice Department in a decision which prompted the

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Democratic leader of the statehouse to advise the feds to “stick it up their ear.” Civil rights lawyers immediately filed a motion asking that the federal court in Richmond take over the job of redistricting the state legislature.

In its March objection Justice found that the legislature diluted black voting strength in rural southeastern Virginia, Newport News, and Norfolk. In the rural areas the legislature divided black communities in order to assure that only one candidate would be elected by blacks in areas where at least three majority black districts could be created. In Norfolk Justice disapproved of the only remaining multi-member district in the Virginia plan. Justice found that the multimember districts subsumed black voters in a larger district where candidates who won would always be the choice of the white majority.

The ruling was a victory for the ACLU, NAACP, and the SCLC, which had challenged the Virginia legislature at every step in court and before Justice. NAACP leader Jack Gravely called upon the legislature to end the “spectacle and waste of the taxpayers’ money.” Judy Goldberg of the ACLU said, “Let the courts do it.”

The federal court in Richmond found the first plan adopted by the legislature as unconstitutional in violation of the “one person – one vote” constitutional theory. The Justice Department also objected to the plan. Another plan was vetoed by then-Gov. John Dalton.

Four blacks presently sit in the Virginia House of Delegates from majority black districts. ACLU Director Chan Kendrick says that number can be more than doubled if the federal court adopts the plan which his group has drawn.

This report was prepared by the staff of the Southern Regional Council.