Voting Rights and Wrongs
The Voting Rights Act of 1965 is surely the most successful civil-rights measure ever enacted by the national government. Everybody—or, at least, everybody who has publicly offered an opinion on the subject—agrees with this judgment, and there is good reason why they should. Among civil rights, that of voting is fundamental because the enjoyment of other rights is likely to depend on it; prior to 1965, however, and despite the Civil Rights Acts of 1957, 1960, and 1964, it was a right denied to most Southern blacks. In Mississippi, for an egregious example, only 6.8 percent of voting-age blacks were then registered to vote; thanks to the Act, that proportion is now almost 70 percent, and in 1980 almost 60 percent of them actually voted. What is more, not only do white candidates for public office throughout the South now actively and publicly solicit black support at the polls, and Southern Senators and Congressmen legislate with a view to the interests of their black constituents, but major Southern cities have black mayors (Atlanta being the most conspicuous of these). Indeed, there are now almost 2,000 black elected public officials in the six states of the Deep South.
So successful has the Act been in achieving its objective (which, as then Attorney General Katzenbach put it, was the removal of barriers to black voter registration), that even some of its devoted supporters began to question whether its “Draconian” pre-clearance provision in Section 5 was needed any longer. Under this provision, some nine states (mostly Southern) and political subdivisions of thirteen others are required to submit all proposed changes in their voting laws and procedures to the U.S. Attorney General for his approval. For states accustomed to referring to themselves as sovereign commonwealths, this is an ignominious position to be in, especially since, in practice, their appeals are made not to exalted political officials, such as Griffin Bell or William French Smith, but to anonymous persons—who knows their names? and who can bring them to account?—in the Civil Rights Division of the Department of Justice. That great civil libertarian, Justice Hugo L. Black, protested that Section 5 treated the states as “conquered provinces” and was unconstitutional. (More recently, the usually soft-spoken Thad Cochran, Republican Senator from Mississippi, put it this way: “Local officials have to go to Washington, get on their knees, kiss the ring and tug their forelocks to all these third-rate bureaucrats.”) What, these states ask, are they now doing to deserve this treatment? And why single them out? Is there no voting fraud up north, in Chicago, for example? It may have been in response to this question that Henry Hyde of Illinois, the ranking Republican on the House Judiciary Committee’s Subcommittee on Civil and Constitutional Rights, asked, “Shall we extend the mandatory pre-clearance for these ‘selected areas’ another ten years . . . or is seventeen years in the political penalty box enough?”
Hyde’s question was asked last summer when the House was debating proposals to renew or extend the Voting Rights Act. Unless Congress acts before August 6, 1982, some of these states and political subdivisions will be eligible to petition the U.S. District Court for the District of Columbia to be removed from this Section 5 pre-clearance coverage; in the words of, the phrase coined to describe this procedure, they will be able to “bail out.” Rather than permit this, some members of the House proposed that the pre-clearance provision be extended to cover all 50 states and all their political subdivisions; this, at least, would meet the complaint of unequal treatment. At this, Henry Hyde, for one, balked. What is significant, however, is that he ended up voting for the extension. He did so, he explained, because of what he learned during committee hearings on the proposals: “Witness after witness testified to continuing and pervasive denials of ready access to the electoral process for blacks.”
Any fair-minded person would have to agree with this assessment. Despite the progress made since 1965, there are still more or less remote areas where state and local officials continue to resist according voting rights to minorities. Without federal supervision, there is no assurance that these practices would not continue or be resumed in other voting districts in some of the states. The price of liberty, as Tom Paine said, is eternal vigilance, and it is unfortunate, but the time has not yet come when we can rely on every local official to provide it.
The House agreed. It passed a bill extending the Act by the overwhelming margin of 365 votes (389-24); and when, on December 16, an identical bill was introduced in the Senate, 61 members of that body, including 8 Republican committee chairmen and several Southern Democrats, immediately indicated their intention to support it. Its easy passage would seem to be assured when it reaches the floor of the Senate, probably in April; as its sponsors, Senators Kennedy and Mathias, were quick to point out, a majority of this size is sufficient to defeat any attempt to filibuster on the bill. It is almost sufficient to overturn a presidential veto, not that there is much likelihood that the President would dare to cast one. Opposition to this bill, even White House opposition, has been conspicuous by its absence, so much so that some Senate staff members have complained of difficulties in finding witnesses willing to testify against it.
This is unfortunate because the bill in its present form is much more than an extension of the current law. Unless it is amended it deserves to be defeated.
What is new in this bill is not to be found in Section 5′s pre-clearance provision, on which most of the debate has been focused; that section is unchanged. What is mostly objectionable in this bill is not to be found in the new bail-out section, even though its effect will be to make it almost impossible for any jurisdiction to take advantage of the bail-out privilege. What is new and profoundly objectionable is the seemingly innocuous amendment to the text of Section 2 which, by general agreement, was not one of the Act’s “key sections.” (In one compendium of significant civil-rights laws, this section was omitted from the text of the 1965 Act precisely because, in the editor’s view, it was not one of the “key sections.”)
In its original form, Section 2 was a mere declaration, or a restatement in statutory form, of the Fifteenth Amendment to the Constitution. Where the Amendment says the “right of citizens of the United States to vote shall not be denied or abridged” on account of race or color, Section 2 says, more explicitly, that no “voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied [so as to] deny or abridge” the right to vote. Not surprisingly, unlike other sections of the Act, this one has given rise to very little litigation, and in the current debate over extending the Act very little attention has been paid to it. Yet its language was altered in a significant way. The words “to deny or abridge” the right to vote were deleted; in their place were put the words “in a manner which results in a denial or abridgment” (emphasis added) of the right to vote. This new language will make Section 2 the key section of the Act, one that will affect the electoral laws and practices of every state and political subdivision in the nation. There is reason to doubt that this was understood by all the Congressmen and Senators who lined up quickly in support of the bill.
The new language is intended to express the difference between the right to vote and what the federal courts, in voting-rights cases, have made of the right to vote. (It was placed in Section 2 of the bill because that section, unlike Section 5, applies to the entire country, and applies to existing voting laws and practices as opposed to voting changes.) Voting, Chief Justice Warren pronounced in a 1969 case, includes “all activities necessary to make a vote effective,” and the effectiveness of a vote is now measured by its results. Thus, a vote can be “diluted”—that is, made less effective—if a city annexes its surrounding territory with the consequence that the proportion of black voters declines from 56 percent to 47 percent of the population; or if, as a result of reapportioning its voting population, a state reduces the percentage of black voters in a district below 65 percent, the proportion calculated by the Justice Department and certain federal District Courts to make it relatively certain that a black will be elected; or if, when changing from a system of plurality to one of majority voting, a city cannot prove that the change will not “dilute the effectiveness of the Negro vote.” This last reference is to a 1980 case, City of Rome v. United States, and a consideration of it and City of Mobile v. Bolden, decided the same day, will help to explain what Congress is up to.
Rome, Georgia, had a commission form of government, the commissioners being elected on an at-large basis and by a plurality of the vote. (As the Supreme Court noted, “literally thousands of municipalities and other local government units throughout the nation” have such a system.) In 1966, the state of Georgia enacted new laws affecting municipal governance, among them one providing for election of commissioners by majority vote. Since Georgia was covered by Section 5 of the Voting Rights Act, it had to “pre-clear” this electoral change with the Attorney General. He refused his approval and Rome went to court. The trial court found no discriminatory purpose in the new law, but it ruled against the city because the law was discriminatory in effect. As the Supreme Court repeated in its affirmance of the lower court’s decision, the law would deprive “Negro voters of the opportunity to elect a candidate of their choice,” by which it meant, a candidate of their own race. More precisely, the city had not proved that the new law would not have the effect of depriving Negro voters of the opportunity to elect a Negro candidate.
On the same day, the Supreme Court reached the opposite conclusion in a case presenting starkly similar facts. Mobile, Alabama also had a commission form of government, the three commissions being elected every four years by majority vote in at-large elections. City of Mobile v. Bolden began when black citizens of the city challenged the legality and constitutionality of the at-large election procedure, alleging that their vote had been “diluted” because, while blacks comprised more than 35 percent of the population, no black had ever been elected a city commissioner. Although the trial court found that Mobile blacks registered and were able to vote without hindrance, it nevertheless held this “dilution” of voting power to be an abridgment of the right to vote in violation of the Fifteenth Amendment, and ordered the replacement of the commission system by a mayor-council system, with council members to be elected from nine single-member districts. A sharply divided Supreme Court reversed, holding that an election law that is racially neutral on its face can be said to violate the Fifteenth Amendment only if it can be shown to have been motivated by a discriminatory purpose and that there was no such showing in this case. A plurality of the Mobile Court held that Section 2 of the Act is coextensive with the Fifteenth Amendment, and, therefore, does require proof of discriminatory purpose.
What accounts for the discrepancy in these judgments? The Mobile case was tried not under the Voting Rights Act but, rather, under the Fifteenth—and, to some extent, the Fourteenth—Amendment. Alabama, like Georgia, was covered by Section 5 of the Act, but Mobile, Alabama, unlike Rome, Georgia, had not changed its election law—it had been in effect since 1911—and, therefore, was not required to “pre-clear” it with the Attorney General under Section 5.
Thus, as the situation stands after these two 1980 cases, anyone challenging old election laws, or new laws in jurisdictions not covered by Section 5 of the Voting Rights Act, must sue under Section 2 of the current Act or under the Fifteenth (or Fourteenth) Amendment, and to prevail he must show discriminatory purpose; to prevail under Section 5, it is the city or state that bears the burden of proof and it must show no discriminatory effect.
The amended Section 2 is intended to reverse the Supreme Court’s decision in City of Mobile. By making it clear that, in its judgment at least, proof of discriminatory purpose or intent is not required in cases brought under the Fifteenth Amendment (by way of Section 2), the House Judiciary Committee, as it frankly admitted in its report on the bill, intended to do away with the discrepancy between the law of Mobile and the law of Rome.
If enacted, it would permit voting-rights suits to be filed by the Attorney General or any private litigant against every state, city, county, or other electoral jurisdiction in the country. It would put every jurisdiction on notice that it might have to appear in a federal court to defend its election laws—any law affecting elections—against the charge that they “dilute” the votes of blacks and a few other minority groups. And it would, of course, make these federal courts the country’s electoral lawgiver.
At the end of his dissenting opinion in City of Mobile, Justice Thurgood Marshall said that if the 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.” Such minatory statements are singularly out of place in judicial reports—after all, judges are not supposed to provoke or even to excuse lawlessness—but, except in the context in which it appears, Marshall’s point concerning sophisticated modes of discrimination has considerable merit. There are ways of abridging the right to vote without apparently denying it.
The paradigm case of this occurred some twenty years ago when Alabama, without removing a single white voter, managed to exclude all but a fraction of Tuskegee’s black voters from the city (all but 4 of a total of 400) by redrawing the city’s boundaries, transforming its shape from that of a simple square to “an uncouth twenty-eight sided figure,” as Justice Felix Frankfurter put it. The Supreme Court was unanimous in its judgment that this was a violation of the Constitution, with all but one member agreeing that it was an abridgment, if not a denial, of the Fifteenth Amendment’s right to vote.
But in City of Mobile the Court was not retreating from its position in the Tuskegee case; it was refusing to join Marshall in his insistence that the Constitution requires that “the votes of citizens of all races shall be of substantially equal weight.” To the Court—or, actually, to the plurality of Justices who joined in Justice Potter Stewart’s opinion—this was a call for proportional representation. “The theory of this dissenting opinion . . . appears to be that every ‘political group,’ or at least every such group that is in the minority, has a federal constitutional right to elect candidates in proportion to its numbers.” This, said Justice Stewart, is not the law of the Constitution.
Marshall angrily denied that he was calling for proportional representation; this charge was, he said, a “mischaracterization” of his position. There is, he went on, a clear distinction between a requirement of proportional representation and the discriminatory effect or vote-dilution test. “The vote-dilution doctrine can logically apply only to groups whose electoral discreteness and insularity allow dominant political factions to ignore them.” In like manner, the amended Section 2 of the Voting Rights Act contains this disclaimer: “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.”
Despite these assurances, however, one from Marshall and the other from Congress, the distinction between the vote-dilution test and the proportional representation of at least some minority groups is likely to be no clearer than that between racial goals and racial quotas.
Those words in the amended Section 2—“in a manner which results in a denial or abridgment”—will derive their meaning in part from the Supreme Court’s decision in United Jewish Organizations v. Carey, and according to Justice William Brennan, “the one starkly clear fact of this case is that an overt racial number was employed to effect petitioners’ assignment to voting districts.” In equally stark fact, race was the only criterion employed in the redrawing of district lines. Yet the Court, with Brennan concurring, approved it by a vote of 7 to 1.
At issue in this case was the New York reapportionment statute enacted after the 1970 census, and more precisely, the district lines drawn in three metropolitan counties, Kings, New York (Manhattan), and Bronx. In one of the newly-drawn districts, the nonwhite majority was only 61 percent, and the Justice Department, from whom Section 5 pre-clearance was required,1 concluded from this and other facts that the state had not shown that the district lines had not been drawn with the purpose or effect of diluting the voting strength of nonwhites (blacks and Puerto Ricans). Faced with the necessity to have its reapportionment plan in place in time for the 1974 primary and general elections, the state revised the plan as it affected the districts in these counties, increasing the size of the nonwhite majority from 61 percent to 65 percent. This satisfied the Justice Department in Washington but not everyone in the local district, for, in order to find the number of nonwhites needed to achieve the required 65-percent proportion, the state had to reassign to other districts some members of what had been a consolidated Hasidic community. The Hasidim went to court and, as one might expect, lost. They lost because, as Brennan put it in his separate opinion, they had “not been deprived of their right to vote” (which, of course, could also have been said of the nonwhites in the county), and because while their vote may have been diluted as a result of their being divided into separate districts, they do not constitute a group explicitly protected under the Voting Rights Act. Congress at its pleasure has reserved this status for blacks and so-called language minorities: American Indians, Asian Americans, Alaskan Natives, and persons of Spanish heritage. The Hasidim were expected to take their chances along with the rest of the whites, and in this case at least there was no evidence of “cognizable discrimination against whites.” Whites could elect their representatives—that is, they could elect whites—in those districts where they were in the majority. UJO v. Carey, like some cases before it, stands for proportional representation, not, admittedly, for every group—the Court did not join Marshall by saying that “the votes of citizens of all races shall be of substantially equal weight”—but proportional for some groups.
One of Chief Justice Earl Warren’s legacies to American politics was the aphorism, “Legislators represent people, not trees or acres,” and, that being so, states were forbidden by the Constitution to apportion seats in either house of their legislatures on any basis other than population. Now it turns out that legislators represent not undifferentiated people—people defined only as individuals living in districts of approximately equal size—but groups of people defined by their race, and they can be said to represent them only if they are of that race. As the Court said, the votes of blacks will be diluted when the number of blacks in a district is not sufficient “to insure the opportunity for the election of a black representative.” How many black representatives? That depends on the number of blacks in the county. How many are required in a district to insure the election of a black representative? If one takes it for granted that blacks vote as a bloc, at least 50 percent, and beyond that the number would seem to depend on voter turnout. In Kings County, turnout tends to be low, so 61 percent was deemed insufficient. Why 65 percent? “A staff member of the legislative reapportionment committee testified that in the course of meetings and telephone conversations with Justice Department officials, he ‘got the feeling . . . that 65 percent would be probably an approved figure’ for the nonwhite population in the assembly district in which the Hasidic community was located. . . .”
Of course, as any well-informed student of voting behavior could have told these anonymous Justice Department Solons (and told them over the phone), 65 percent may not be sufficient to insure the election of nonwhite representatives. In the first place, voters can (and sometimes do) look to factors other than race when casting their ballots, and it is an insult to assume this to be untrue or even uncharacteristic of “nonwhite” voters. In the second place, in some areas (and Kings County is one of them) nonwhite voter turnout is so low that, even if nonwhites voted as a solid bloc, districts on the order of 80 or even 90 percent would be required to insure the election of their candidate. Voter turnout is related to education—the more education, the higher the turnout—and not at all to race, a fact that ought to be pondered by the ideologues in the Justice Department and federal judiciary. Since the nonwhites in these Kings County (which is to say, Brooklyn) districts tend to be very poorly educated, it is not surprising that, judging from the returns in the 1980 congressional elections, their turnout may be as low as 10 percent and surely is as low as 20 percent. Whatever the reason, four of the five districts the Justice Department presumed to be safely nonwhite after the 1974 reapportionment proceeded to elect white representatives in the ensuing local elections.
What, then, can we make of Congress’s assurance that Section 2 does not require a group’s representation to be equal to its proportion of the population—or that disproportionality does not “in and of itself” constitute a violation of the section? If we assume, surely correctly, that this language is not intended to be a repudiation of UJO v. Carey and the other vote-dilution cases, Congress means that some factor in addition to disproportionality must be present before it can be said that a group’s vote has been abridged by being diluted. What factors? Well, for example, the fact that a group’s “discreteness and insularity [has allowed the] dominant political factions to ignore [it]”; or the fact that, after a city annexed additional territory, the number of black seats on the council declined; or the fact that there is evidence of racial bloc voting. Where there is “underrepresentation,” the presence of any one of these additional factors, or any one of what Justice Stewart in the City of Mobile case referred to as “gauzy sociological considerations,” will continue to trigger a violation. So much for the “not-in-and-of-itself” disclaimer.
Besides, whatever Congress’s intention in making this disclaimer, the courts are likely to treat it the way they treated a similar disclaimer in the Civil Rights Act of 1964. There Congress said specifically that nothing in Title VII of that Act should be interpreted to require employers “to grant preferential treatment” to any person or group because of race, color, sex, or national origin, not even to correct “an imbalance which may exist with respect to the total number or percentage of persons of any race [etc.] employed by any employer.”
Clear enough, one would think, but the Supreme Court paid it no heed. To read this as written, said Justice Brennan in the Weber case, would bring about an end completely at variance with the purpose of the statute, by which he meant, the purpose of the Court.2 Congress’s disclaimer should be taken with a grain of salt. If the amended Section 2 is adopted, minorities whose voting power has been “diluted” will be able to file suits against jurisdictions throughout the country, and the remedy for vote dilution will prove to be minority representation in proportion to the size of the minority group.
In trying to achieve this, however, the federal courts will encounter a few problems. Where nonwhite voter turnout is as low as it is in Kings County, New York, will the amended Voting Rights Act require districts with populations 80 or 90 percent nonwhite? Some Republicans hope so; they know that the more blacks they can pack into a district, the more Democratic the vote of that district, and, consequently, the better will be their chances to win in surrounding districts. From their partisan point of view, as many districts as possible should be 100-percent nonwhite.
Then, is it not a violation of the Voting Rights Act to combine Puerto Ricans and blacks in the single category, nonwhite? Both are explicitly protected groups and, according to the principle of UJO v. Carey; each is entitled to representation in proportion to its numbers. (Interestingly enough, the Puerto Ricans of Kings County objected to the 1974 redistricting plan precisely because it did not establish a Puerto Rican district.) Perhaps in future cases the nonwhite group will have to be split into its component parts and each part given a district it can call its own. If so, the redefined Tuskegee (that “uncouth twenty-eight sided figure”) will, by comparison, look like a perfect ellipse. And, for one more example, it will be interesting to witness the situation where a city is ordered by the U.S. District Court for the District of Columbia to concentrate blacks in voting districts in order to “undilute” their voting power at a time when the local U.S. District Court has ordered the city to annex surrounding territory in order to integrate the schools.
A genuine system of proportional representation, of the sort sometimes employed in Western Europe, is one where each political group)—Union socialiste et républicaine, Gauche indépendante, Jeune République, Rassemblement du peuple français, etc.—is guaranteed a share of seats in the legislature equal to its share of the popular vote. Since these groups are defined by their interests or the opinions they hold, and the popularity of these opinions cannot be known until they are elicited, there have to be elections. But one can learn how many blacks there are in the country simply by consulting the census reports. Why, then, bother to hold elections? Why construct these elaborate election districts to insure that black voters will elect, say, a Charles Diggs rather than, say, a Peter Rodino (chairman of the House Judiciary Committee)?
And indeed, one of the unintended consequences of this enactment of the amended Section 2 would be that the other sections of the Voting Rights Act would, in effect, be made superfluous. Who needs statutes providing Attorney General pre-clearance, or bail-outs, or federal election examiners and observers, when, with a few seemingly innocuous words, the judiciary can be authorized to do everywhere what the Justice Department has been doing only in the few “covered” jurisdictions, such as Houston, where it called off a general election, or New York City, where, merely because it thought it had not been given sufficient information, it prevented the holding of a primary election, or Kern County, California, where it ordered the printing of Spanish-language ballots—67,430 of them, of which number only 174 were actually used—in a 1978 primary election? Government by judiciary can be more efficient—think of school busing, abortion, prison reform—than government by administrative agency, to say nothing of government by local election officials.
1 These counties were subject to the pre-clearance provision of the Voting Rights Act because New York then had a literacy test for voting and, given a choice between Richard Nixon and the candidate of a badly discredited Democratic party, fewer than 50 percent of the state's voting-age population had gone to the polls in the 1968 presidential election. In combination, these factors were presumed to be evidence of disfranchisement of some sort.
2 See my article, “Let Me Call You Quota, Sweetheart,” COMMENTARY, May 1981.