
          The Attack on Voting Rights
          By Mcdonald, LaughlinLaughlin Mcdonald
          Vol. 7, No. 5, 1985, pp. 1-3
          
          The Reagan Administration continues to widen its attack on minority
voting rights. In its latest depredation, it has filed a friend of the
court brief with the Supreme Court arguing that the election of even a
single black to office forecloses a challenge to a disputed election
plan under the Voting Rights Act.
          The case in which the brief was filed, Thornburg
v. Gingles, involves North Carolina's 1982 legislative
reapportionment. In oral argument before the US Supreme Court, heard
on December 4,1985, the Reagan Administration was represented by
Solicitor General Charles Fried. Julius Chambers, director of the
NAACP Legal Defense Fund (and a former president of the Southern
Regional Council), argued against Fried and North Carolina Attorney
General Lacy Thornburg on behalf of a group of black North
Carolinians. Chambers told the Court that "blacks do not have and have
not had an equal opportunity to participate in the electoral process
and to elect representatives of their choice."
          The Department of Justice originally approved the state's plan
under the special preclearance provisions of Section 5 of the Act, but
a three-judge court later ruled that features of the
reapportionment--six multi-member and one single-member
districts--violated another part of the Act, Section 2, because they
had the result of diluting minority voting strength. The court said
that even though a token number of minorities had actually been
elected in the challenged districts, this electoral success was "too
minimal" and "too recent" in history to support a finding that race
was no longer a significant adverse factor or that the elections were
fair. Justice, however, in an effort to defend 

its prior approval of
the plan, is now arguing that the minimal minority success at the
polls is a total bar to a further Section 2 challenge. Reduced to its
essentials, the argument is the familiar one emanating from Reagan
officials these days: that anything more than tokenism in civil rights
is a quota or a form of prohibited affirmative action.
          The Administration, despite its frequent rhetoric to the contrary,
has never supported strong voting rights laws. When the extension of
the Voting Rights Act was debated in the House in 1981, the
Reaganites, saying they were "studying" the question, kept silent on
the critical issue of whether or not to continue Section 5--which
requires certain jurisdictions with long histories of discrimination
in voting to obtain federal approval of new voting laws prior to
implementing them. After the House voted overwhelmingly to extend
Section 5, the Reagan Administration finally showed its hand. It
labeled the House Bill "extreme" and lobbied the Senate to cripple it
by enacting two amendments, one of which would have exempted a large
number of jurisdictions from compliance with preclearance, and another
that would have made it easier for the remaining jurisdictions to
enact new, potentially discriminatory voting laws. The Senate rejected
the proposed amendments and adopted a version of Section 5 similar to
that passed by the House.
          Reagan and friends also vehemently fought the strengthening of
Section 2 of the Act. Section 2 is a general prohibition against
discrimination in voting and is enforced in traditional lawsuits
brought by the Attorney General or by private parties. Unlike Section
5, it applies nationwide and to both old and new voting practices,
even to those which may have been precleared by the Attorney
General.
          The civil rights community advocated the amendment of Section 2 to
include a "results" test for voting rights violations. The issue was
important because the Supreme Court had indicated in a 1980 decision,
City of Mobile v. Bolden, that direct proof of a
racially discriminatory purpose was required in voting cases,
regardless of how discriminatory a particular procedure was in
practice. Given such a burden of proof, minorities could rarely expect
to challenge successfully even the worst of discriminatory
practices.
          Attorney General William French Smith testified before the Senate
on behalf of the Administration in January, 1982 and urged that
Congress reject the amendment of Section 2. He called the amendment
"bad legislation" and a "dramatic change" in the law. It would, he
said, require racial "quotas" for office holding and "proportional
representation." The Senate brushed aside the Attorney General's
objections and voted eighty-five to eight to adopt the results
standard. The President later signed the Act into law in a Rose Garden
ceremony, pronouncing the right to vote "the crown jewel of American
liberties," and, without betraying a trace of irony, said the new
legislation was evidence of his Administration's "unbending commitment
to voting rights."
          In light of Attorney General Smith's Senate testimony, it is not
surprising that the current Administration has taken a hostile view of
Section 2 in Gingles. What makes Gingles critical is that the Court has never before
revised the application of Section 2 to the particular facts of a
given case, and has frequently said that the opinions of the Attorney
General are entitled to deference--at least in cases involving Section
5 in which the Attorney General has unique enforcement
responsibilities. Whether or not the Court will defer to the Attorney
General's opinion in this case, and whether it will establish
restrictive guidelines for the implementation of Section 2, will weigh
heavily on minority voting rights in the years ahead.
          The government's arguments in the Gingles
case, however, are refuted by Section 2 itself. The statute requires
that political processes be "equally open" to minorities and that they
not have "less opportunity than other members of the electorate to
participate in the political process and to elect representatives of
their choice." As the statute makes plain, the right protected is one
of equal, not token, political participation.
          In addition, the statute directs a court to consider "the totality
of circumstances" in evaluating a violation, and provides that the
extent to which minorities have been elected to office "is one
circumstance that may be considered." If black electoral success is
merely one of a number of circumstances which may be considered in a
Section 2 case, a finding of minimal or any other level of minority
candidate success could not, as the government argues, be
sufficient.
          Congress, in fact, expressly considered and rejected the very
argument now being pressed by the Reagan Administration in the Supreme
Court. The Senate Report which accompanied amended Section 2 provides
that while minority electoral success is a significant and relevant
factor, it is n_ the be all or end all--it is not dispositive.
          Otherwise, the majority might evade the statute by manipulating the
election of a "safe" minority candidate to 

give the appearance of
racial fairness to a discriminatory election system. According to the
Senate Report, which drew upon the language of prior voting rights
cases, "were we to hold that a minority candidate's success at the
polls is conclusive proof of a minority group's access to the
political process, we would merely be inviting attempts to circumvent
the Constitution." Lower federal courts in Alabama, Texas, Louisiana
and Illinois have decided cases on the basis of the new law and have
predictably rejected the claim that minimal or token black success at
the polls forecloses a Section 2 challenge.
          The necessity of considering factors other than the election of
minorities in the North Carolina case is particularly apparent in
House District 21 (Wake County) and House District 23 (Durham County),
where black candidates have enjoyed perhaps their greatest electoral
successes. One black has been elected to the three-member delegation
from District 23 since 1973, and a black was elected in 1980 and 1982
to the six-member delegation from District 21. This success, however,
as the trial court found, was the result of single-shot voting by
blacks, i.e. blacks giving up the right to vote for all delegation
members and instead concentrating their votes on a few black
candidates. Black voters in District 23 forfeited up to two-thirds of
their voting strength and black voters in District 21 forfeited up to
five-sixths of their voting strength in this fashion in order to elect
candidates of their choice to office. Whites, by contrast, can vote a
full slate without forfeiting any of their voting strength and still
elect candidates of their choice. Such a system does not provide black
voters equal access to the political process and is another reason the
mere election of minorities to office should not foreclose a dilution
challenge. The totality of circumstances must always be considered.
          Aside from being contrary to the statute and legislative history,
the government's Section 2 argument is in opposition to the whole
thrust of modern voting and civil rights enforcement. Congress enacted
the Voting Rights Act in 1965 as an "uncommon exercise of
Congressional power" designed to combat the "unremitting and ingenious
defiance of the Constitution" by some jurisdictions in denying
minority voting rights. Based upon the continuing need for voting
rights protection, Congress extended and amended the coverage of the
Act three times--in 1970,1975 and 1982. It would be illogical to
suppose, that in amending Section 2, Congress suddenly retreated from
its general commitment to racial equality in voting and adopted a
statute providing only tokenism and minimal political
participation.
          Modern congressional enforcement of civil rights in other areas has
similarly not been one of minimalism. Congress, for example, clearly
intended to protect more than token access to public accommodations or
employment when it enacted the Civil Rights Act in 1964, or token
service on juries when it enacted the Federal Jury Selection and
Service Act in 1968. It makes no more sense to say that token minority
success at the polls forecloses a voting rights challenge than to say
the renting of a single motel room to a black forecloses a challenge
to a discriminatory public accommodations policy, or that the presence
of a few blacks in the jury pool bars challenge to a discriminatory
jury selection system.
          If the Reagan Administration prevails in its Supreme Court
argument, it will be impossible to eradicate discriminatory election
procedures in places where minority candidates have had some
success. On the other hand, jurisdictions in which blacks have had no
success will be encouraged to manipulate the election of a token
minority and block challenges to their discriminatory election
schemes. There will be no incentive for voluntary compliance with the
Voting Rights Act and every inducement for circumvention. The Reagan
Administration will have accomplished in the courts what it failed to
do in the Congress--to significantly retard the nation's twenty year
progress in minority voting rights.
          
            Laughlin McDonald is director of the Southern Regional
Office of the American Civil Liberties Union.
          
        