Mr. Laughlin McDonald

May 9, 2006

Senate Judiciary Committee
Reauthorization of Section 5 of the Voting Rights Act
May 9, 2006

Testimony of Laughlin McDonald
Director, ACLU Voting Rights Project
Atlanta, Georgia

On behalf of the ACLU, I want to express my support for the
bill pending before the committee to extend Section 5 of the
Voting Rights Act, 42 U.S.C. § 1973c, for an additional 25 years.
The comprehensive record compiled by Congress of continuing
discrimination in voting and the prevalence of racial
polarization in the political process demonstrate that the
extension of Section 5 would be a proper exercise of
congressional authority to enforce the racial fairness provisions
of the Fourteenth and Fifteenth Amendments.
The ACLU also supports the other provisions of the bill,
including the language assistance provisions of Section 203, but
since this hearing focuses specifically on Section 5, I will
confine my remarks to that issue.
Prior Challenges to the Constitutionality of Section 5
The constitutionality of Section 5 has been challenged in
the past, but the challenges have been consistently rejected. As
soon as Section 5 was enacted in 1965, South Carolina, along with
Alabama, Georgia, Louisiana, Mississippi, and Virginia,
1. 383 U.S. 301, 308 (1966). Although the 1957, 1960, and
1964 Civil Rights Act contained provisions prohibiting
discrimination in voting, they depended on time consuming
litigation for enforcement. As Attorney General Katzenbach
explained in his testimony before Congress in support of Section 5,
"existing law is inadequate. Litigation on a case-by-case basis
simply cannot do the job." Hearings on S. 1563 before the Senate
Comm. on the Judiciary, 89th Cong., 1sr Sess., pt. 1, 14 (1965).
2. Id. at 334.
3. Id. at 327 (quoting Ex parte Virginia, 100 U.S. 339,
345-46 (1880)).
2
challenged it as unconstitutional. The Supreme Court rejected
the challenge in South Carolina v. Katzenbach, citing the
"unremitting and ingenious defiance of the Constitution" in
certain sections of the country, the failure of the case-by-case
method to end discrimination, and the repeated attempts by local
jurisdictions to evade the law by enacting new and different
discriminatory voting procedures.1 The Court acknowledged that
Section 5 was an "uncommon exercise of Congressional power," but
found that Congress's enactment was justified by the exceptional
history of voting discrimination in the effected jurisdictions.2
In doing so the Court applied a broad test for congressional
power to enforce the constitution, i.e., "[w]hatever legislation
is appropriate . . . to secure to all persons the enjoyment of
perfect equality of civil rights and equal protection of the laws
against State denial or invasion, if not prohibited, is brought
within the domain of congressional power."3
4. City of Rome v. United States, 446 U.S. 156, 180 (1980).
5. Id. at 179, 182. While the 1970 and 1975 amendments
added jurisdictions by using subsequent presidential elections
(1968 and 1972), the previously covered jurisdictions were not
released from coverage under the original formula based on the 1964
presidential election.
3
Congress extended Section 5 again in 1970 and 1975, and once
again its constitutionality was challenged. The City of Rome,
Georgia, argued that Section 5 violated principles of federalism,
or states' rights, and that even if the preclearance requirements
were constitutional when enacted in 1965, "they had outlived
their usefulness by 1975."4 The Court rejected the federalism
argument, noting that the Fourteenth and Fifteenth Amendments
"were specifically designed as an expansion of federal power and
an intrusion on state sovereignty." As for the argument that
Section 5 had outlived its usefulness, the Court concluded that
"Congress' considered determination that at least another 7 years
of statutory remedies were necessary to counter the perpetuation
of 95 years of pervasive voting discrimination is both
unsurprising and unassailable."5
After the extension of Section 5 in 1982, Sumter County,
South Carolina, filed yet another challenge to the
constitutionality of the statute. It contended that the 1982
extension was unconstitutional because the trigger, or coverage
6. Section 5 covers states, or political
subdivisions, in which less than half of eligible persons were
registered or voted in either the 1964, 1968, or 1972
presidential elections, and which used a test or device for
voting. 42 U.S.C. § 1973b(b).
7. County Council of Sumter County, S.C. v. United
States, 555 F. Supp. 694, 707 (D.D.C. 1983). 8. Id.
9. Id. at 707 n.13.
10. 521 U.S. 507.
4
formula, was outdated.6 The county pointed out that as of May
28, 1982, more than half of the age eligible population in South
Carolina and Sumter County was registered, facts which it said
"distinguish the 1982 extension as applied to them from the
circumstances relied upon in South Carolina v. Katzenbach, supra,
to uphold the 1965 Act."7 The three-judge court rejected the
argument, noting that Section 5 "had a much larger purpose than
to increase voter registration in a county like Sumter to more
than 50 percent."8 In support of its conclusion, the court noted
that "Congress held hearings, produced extensive reports, and
held lengthy debates before deciding to extend the Act in 1982."9
Section 5 and the City of Boerne
Opponents have launched new arguments and challenges against
the Voting Rights Act in light of a series of Supreme Court
decisions beginning with City of Boerne v. Flores, decided in
1997.10 In City of Boerne, the Court invalidated the Religious
Freedom Restoration Act of 1993 (RFRA) because of an absence of
11. Id. at 520, 530.
5
"congruence and proportionality between the injury to be
prevented or remedied and the means adopted to that end." The
Court defined "congruence and proportionality" as an agreement
"between the means used and the ends to be achieved. The
appropriateness of remedial measures must be considered in light
of the evil presented."11 However, the Court repeatedly cited
the Voting Rights Act as an example of congressional legislation
that was constitutional.
The Court in Boerne cited the Act's suspension of literacy
tests as an appropriate measure enacted under the Fifteenth
Amendment "to combat racial discrimination in voting." It held
that the seven year extension of Section 5 and the nationwide ban
on literacy tests were "within Congress' power to enforce the
Fourteenth and Fifteenth Amendments, despite the burdens those
measures placed on the States," and that Section 5 was an
"appropriate" measure "'adapted to the mischief and wrong which
the [Fourteenth] [A]mendment was intended to provide against'."
Congress acted in light of the "evil" of "racial discrimination
[in voting] which in varying degrees manifests itself in every
part of the country." The legislative record disclosed "95 years
of pervasive voting discrimination," and "modern instances of
12. Id. at 520, 526, 530, 532. 13. Lopez v. Monterey County, 525 U.S. 266, 282
(1999).
14. Id. at 282-83.
6
generally applicable laws passed because of [racial] bigotry."
By contrast, the legislative history of RFRA, in the view of the
Court, contained no such evidence, leading it to conclude that
"RFRA is so out of proportion to a supposed remedial or
preventive object that it cannot be understood as responsive to,
or designed to prevent, unconstitutional behavior."12
It is especially worthy of note that the Supreme Court
relied upon City of Boerne in rejecting a challenge to the
constitutionality of Section 5 made by the State of California.
The state argued that "§ 5 could not withstand constitutional
scrutiny if it were interpreted to apply to voting measures
enacted by States that have not been designated as historical
wrongdoers in the voting rights sphere."13 The Court disagreed.
Citing Boerne, it held:
[l]egislation which deters or remedies
constitutional violations can fall within the
sweep of Congress' enforcement power even if
in the process it prohibits conduct which is
not itself constitutional and intrudes into
legislative spheres of autonomy previously
reserved to the States.14
The Court, reaffirming its ruling in South Carolina v.
Katzenbach, further held that "once a jurisdiction has been
15. Id. at 283.
16. 35 U.S.C. 271(h) & 296(a). 17. 527 U.S. 627, 640 (1999).
18. Id. at 639 and n.5.
19. 528 U.S. 62 (2000).
7
designated, the Act may guard against both discriminatory animus
and the potentially harmful effect of neutral laws in that
jurisdiction."15
After the decision in City of Boerne, the Court in Florida
Prepaid Postsecondary Education Expense Board v. College Savings
Bank, invalidated the Patent Remedy Act,16 allowing suits against
a state because "Congress identified no pattern of patent
infringement by the States, let alone a pattern of
unconstitutional violations."17 But as in City of Boerne, the
Court in Florida Prepaid expressly and repeatedly noted the
constitutionality "of Congress' various voting rights measures"
passed pursuant to the Fourteenth and Fifteenth Amendments, which
it described as tailored to "remedying or preventing"
discrimination based upon race.18
Kimel v. Florida Board of Regents,19 another federalism or
states' rights decision, invalidated the provisions of the Age
Discrimination in Employment Act of 1967 (ADEA), that subjected
states to suit for money damages for age discrimination. But
nothing in the opinion suggests that any provision of the Voting
20. Id. at 83-4, 86.
21. Id. at 89.
8
Rights Act is unconstitutional. First, the Court held that
classifications based upon age were unlike those based upon race,
and that "age is not a suspect classification under the Equal
Protection Clause." Second, the Court held that states may
discriminate on the basis of age if the classification is
rationally related to a legitimate state interest."
Classifications based on race, however, are constitutional only
if they are narrowly tailored to further a compelling
governmental interest. Age classifications, unlike racial
classifications, are "presumptively rational." Against this
backdrop, the Court concluded that ADEA was not "responsive to,
or designed to prevent, unconstitutional behavior."20 In
addition, according to the Court, in the legislative history of
ADEA "Congress never identified any pattern of age discrimination
by the States, much less any discrimination whatsoever that rose
to the level of constitutional violation."21
In United States v. Morrison, another of the post-Boerne
cases, the Court invalidated a section of the Violence Against
Women Act of 1994 which provided penalties against private
individuals who had committed criminal acts motivated by gender
bias. The Court concluded that the disputed provision could not
22. 529 U.S. 598, 626 (2000).
23. 384 U.S. 641 (1966).
24. 531 U.S. 356, 370 (2001).
9
be upheld as a proper exercise of congressional power under § 5
of the Fourteenth Amendment because "it is directed not at any
State or state actor, but at individuals."22 Section 5, by
contrast, is by its express terms directed at states and state
actors, i.e., at "any State or political subdivision." Moreover,
the Court cited as examples of the proper exercise of
congressional power under the Fourteenth and Fifteenth Amendments
the various voting rights laws found to be constitutional in
Katzenbach v. Morgan (prohibition on English literacy tests for
voting)23 and South Carolina v. Katzenbach.
In still another case, Board of Trustees of the University
of Alabama v. Garrett, the Court invalidated a portion of Title I
of the Americans with Disabilities Act of 1990 (ADA) allowing
state employees to recover money damages by reason of the state's
failure to comply with the statute. The Court concluded that
there was no evidence of a "pattern of unconstitutional
discrimination on which § 5 [of the Fourteenth Amendment]
legislation must be based."24 However, the Court was careful to
underscore the constitutionality of the Voting Rights Act and
singled it out as a preeminent example of appropriate legislation
25. Id. at 373.
26. 538 U.S. 721, 736 (2003).
27. Id. at 736, 738.
10
enacted to enforce the race discrimination provisions of the
Civil War Amendments in the area of voting.25
Two subsequent decisions, moreover, indicate that the Court
would not apply the strict congruence and proportionality
standard of the Boerne line of cases where Congress has
legislated to prevent discrimination on the basis of race or to
protect a fundamental right, such as voting. In Nevada
Department of Human Resources v. Hibbs, the Court affirmed the
constitutionality of the family leave provisions of the Family
and Maternal Leave Act, noting that "state gender discrimination
. . . triggers a heightened level of scrutiny,"26 as opposed to
the rational basis level of scrutiny that applies to age
discrimination, as was the case in Garrett. Because of this
difference, "it was easier for Congress to show a pattern of
state constitutional violations" in Hibbs. The Court also cited
with approval various decisions of the Court which rejected
challenges to provisions of the Voting Rights Act "as valid
exercises of Congress' § 5 power [under the Fourteenth
Amendment]."27
Finally, in Tennessee v. Lane the Court held that Title II
28. 541 U.S. 509, 531 (2004).
29. Id. at 523.
30. 42 U.S.C. §§ 1973a & b.
11
of the Americans With Disabilities Act, as applied to the
fundamental right of access to the courts, "constitutes a valid
exercise of Congress' § 5 authority to enforce the guarantees of
the Fourteenth Amendment."28 According to the Court, "the
appropriateness of the remedy depends on the gravity of the harm
it seeks to prevent."29
In sum, none of the recent federalism decisions of the Court
casts doubt on the constitutionality of Section 5. To the extent
that they discuss legislation enacted by Congress pursuant to the
enforcement provisions of the Fourteenth and Fifteenth Amendments
to redress the problem of racial discrimination in voting, they
do so to affirm its constitutionality.
The Bailout
If there are jurisdictions that no longer need to be covered
by Section 5, that is not an argument for allowing the statute to
lapse. Instead, such jurisdictions can bailout from coverage
under Section 4(a) of the Act.30 To bailout, a jurisdiction must
essentially show that it has had a clean voting rights record
during the preceding ten years, and that it has engaged in
constructive efforts to promote full voter participation.
31. S.Rep. No. 97-417, 97th Cong., 2d Sess. 60 (1982),
reprinted in 1982 U.S.C.C.A.N. 177, 239. Relatively few
jurisdictions have in fact bailed out. Three jurisdictions,
however, Fairfax City, Frederick County, and Shenandoah County in
Virginia, did so with the consent of the Attorney General,
indicating that the process is not difficult or burdensome for
jurisdictions with clean voting rights records.
32. Boerne, 521 U.S. at 533.
12
The ability to bailout should, moreover, refute the
arguments that Section 5 is not congruent and proportional within
the meaning of the Boerne line of cases. If a jurisdiction
should not, or need not, be covered by Section 5, the statute
provides a ready means of escape. Indeed, in enacting a new
bailout in 1982, Congress expected that prior to the expiration
of Section 2 in 2007 "most jurisdictions, and hopes that all of
them, will have demonstrated compliance and will have utilized
the new bailout procedures earlier."31
The sunset provision of any extension of Section 5, as well
as its limited geographic application, would further argue for
its congruence and proportionality. Boerne, for example, held
that while legislation implementing the Fourteenth Amendment did
not require "termination dates" or "geographic restrictions . . .
limitations of this kind tend to ensure Congress' means are
proportionate to ends legitimate."32
Blaine County, Montana
A recent challenge to the constitutionality of the Voting
33. United States v. Blaine County, Montana, 363 F.3d 897,
904-05 (9th Cir. 2004).
13
Rights Act was made by Blaine County, Montana, in a suit brought
by the United States alleging that the at-large method of
electing the county commission diluted Indian voting strength in
violation of Section 2. The county contended that Section 2 as
applied in Indian Country was now unconstitutional in light of
the Boerne line of cases.
In rejecting Blaine County's argument, and in affirming the
finding of vote dilution by the district court, the court of
appeals held the Boerne "line of authority strengthens the case
for section 2's constitutionality." It noted that "in the
Supreme Court's congruence-and-proportionality opinions, the VRA
stands out as the prime example of a congruent and proportionate
response to well documented violations of the Fourteenth and
Fifteenth Amendments," that when Boerne "first announced the
congruence-and-proportionality doctrine . . . it twice pointed to
the VRA as the model for appropriate prophylactic legislation,"
and, citing Hibbs, Garrett, Morrison, and Florida Prepaid, that
"the Court's subsequent congruence-and-proportionality cases have
continued to rely on the Voting Rights Act as the baseline for
congruent and proportionate legislation."33 The Supreme Court's
subsequent decision in Lane that the appropriateness of a remedy
34. Blaine County, Montana v. United States, 125 S. Ct. 1824
(2005). Despite the rejection of the challenge to Section 2 in
Blaine County, defendants in Fremont County, Wyoming, have raised
an identical challenge to a Section 2 vote dilution lawsuit brought
by the ACLU on behalf of tribal members on the Wind River Indian
Reservation. Large v. Fremont County, Wyoming, No. 05-CV-270J (D.
Wyo.).
14
depends on the gravity of the harm it seeks to prevent further
supports the conclusion of the appellate court. Notably, Blaine
County filed a petition for a writ of certiorari asking the
Supreme Court to review its claim that Section 2 as applied in
Indian Country was unconstitutional, but the Court denied the
petition.34
Although the decision in Blaine County rejected a
constitutional challenge to Section 2, its logic is applicable to
challenges to Section 5.
The Case for Extension
The case for extension of Section 5 has been documented in
reports filed by various organization and testimony at hearings
conducted by the House and Senate. I won't repeat what is
contained in the report previously filed by the Voting Rights
Project of the ACLU, "The Case for Extending and Amending the
Voting Rights Act: Voting Rights Litigation, 1982-2006." I
would, however, like to update it by bringing to the committee's
attention two recent developments in the courts that were not
35. Cottier v. City of Martin, ___ F.3d ___, 2006 WL
1193028 *7 (C.A. 8 (S.D.)).
36. Id. at *1.
15
covered in the report.
On May 5, 2006, the court of appeal for the Eighth Circuit
reversed a decision of the district court dismissing a vote
dilution challenge to elections for the City of Martin, South
Dakota, concluding that "plaintiffs proved by a preponderance of
the evidence that the white majority usually defeated the Indianpreferred
candidate in Martin aldermanic elections."35 The court
also noted the history of ongoing intentional discrimination
against Native Americans in Martin:
For more than a decade Martin has been
the focus of racial tension between Native-
Americas and whites. In the mid-1990s,
protests were held to end a racially
offensive homecoming tradition that depicted
Native-Americans in a demeaning,
stereotypical fashion. Concurrently, the
United States Department sued and later
entered into a consent decree with the local
bank requiring an end to 'redlining' loan
practices and policies that adversely
affected Native-Americans, and censuring the
bank because it did not employ any Native-
Americans. Most recently, resolution
specialists from the Justice Department
attempted to mediate an end to claims of
racial discrimination by the local sheriff
against Native-Americans.36
Significantly, Martin is the county seat of Bennett County,
located between Shannon and Todd Counties, both of which are
37. Bone Shirt v. Hazletine, 200 F. Supp. 2d 1150 (D.
S.D. 2002). The decision is discussed in detail in the ACLU's
report previously filed with this committee. 38. Act No. 477 (H.B. 1654).
39. Larry B. Mims, attorney for Randolph County Board
of Education, to Joseph D. Rich, Voting Section, June 28, 2002.
16
covered by Section 5. The history of purposeful discrimination
against Indians in South Dakota is set out in detail in the
recent opinion of the district court invalidating 2000
legislative redistricting as diluting Indian voting strength.37
As the decision of the Eighth Circuit in the City of Martin case
makes plain, problems of vote dilution and racial discrimination
are ongoing in South Dakota and support the continuation of
Section 5.
The second recent case involves Randolph County, Georgia.
The general assembly enacted legislation following the 2000
census redrawing the five single member districts for the
Randolph County Board of Education to comply with one person, one
vote.38 The redistricting plan was submitted to the Department
of Justice for preclearance under Section 5 on June 28, 2002.39
In subsequent correspondence with the department, the Georgia
Attorney General's office submitted a letter from state
Representative Gerald Green and state Senator Michael Meyer von
Bremen, whose legislative districts include Randolph County, in
which the legislators affirmatively represented that Henry L.
40. Dennis R. Dunn, Deputy Attorney General, to James
Walsh, Voting Section, August 9, 2002, with attached letter from
Green and von Bremen.
41. Joseph D. Rich, Voting Section, to Governor Roy E.
Barnes, et al., September 30, 2002. 42. In Re: Henry L. Cook, Candidate for the Board of
Education for the County of Randolph (Randolph County, Ga., Oct.
28, 2002), para. 14.
17
Cook, the Chairman of the Randolph County Board of Education and
the incumbent in "old" District Five, remained a resident of
"new" District Five.40 Cook is African American, and District
Five, both old and new, is majority black. According to the
letter from Greene and von Bremen, "[t]he understanding I had and
have to this day is that he [Cook] is in fact in his district."
The Department of Justice, based on the representations in the
submission, precleared the new redistricting plan on September
30, 2002.41
Registration cards were issued by the county registrar
assigning voters to their districts under the new plan. One of
those to whom a new registration card was issued was Cook, a
resident of "old" District Five. Consistent with the county's
representations to the Department of Justice, a new registration
card was issued to Cook on August 1, 2002, listing him as a
resident and registered voter in new District Five.42
In October 2002, Cook filed a declaration of candidacy
seeking reelection to the Board of Education from District 5.
43. Id., para. 10. 44. Id., para. 22.
45. Jordan v. Cook, 277 Ga. 155, 587 S.E.2d 52 (2003).
18
Prior to the election, Lee Norris Jordan, an opposing candidate
from District 5, filed a challenge to the qualifications of Cook
claiming that Cook was not a resident of District Five.
A hearing was conducted on the challenge by Judge Gary C.
McCorvey, Chief Judge of the Superior Courts of the Tifton
Judicial Circuit, siting by designation as Superintendent of
Elections of Randolph County. Re. Greene testified at the
hearing that he "attempted to make sure that no incumbent was
legislated out of his (the incumbent's) district," and that it
was his understanding that Cook remained a resident of "new"
District Five.43 Jordan's challenge to Cook's residence was
rejected on the merits. Judge McCorvey concluded that Cook
resided "within the boundaries of such 'new' district five as
contemplated by the Laws and Constitutions of both the State of
Georgia and the United States of America."44
Jordan appealed to the superior court but the appeal was
dismissed on the ground that his delay in filing the appeal until
after the election rendered the appeal moot. The Supreme Court
in a unanimous opinion affirmed the judgment of the superior
court.45
46. Jenkins v. Ray, Civ. No. 4:06-CV-43 (CDL) (M.D.
Ga.).
19
Prior to the next election for the Board of Education
scheduled for July 2006, however, the county registrar issued a
new registration card to Cook assigning him to District Four,
which is majority white. The actions of the registrar in
adopting a new redistricting plan for the Board of Education and
reassigning previously registered voters--and in this case an
incumbent board member--to a new district in derogation of the
intent and action of the state legislature, the representations
made by the county to the Department of Justice, the preclearance
decision of the Department of Justice, the prior decision of the
county registrar, and the decisions of the state courts, were
changes in voting within the meaning of Section 5, but they were
never submitted for preclearance.
Black residents of Randolph County, represented by the ACLU,
filed suit in federal court on April 17, 2006, seeking an
injunction against implementation of the new voting changes
absent compliance with Section 5.46 Two days later, on April 19,
2006, the Department of Justice sent a "please submit" letter to
the county attorney for Randolph County indicating that the
voting changes at issue were covered by Section 5 but had not
been precleared. According to the letter, "the effective change
47. John Tanner, Voting Section, to Tommy Coleman,
attorney for Randolph County, April 19, 2006.
20
to the precleared redistricting plans through the enforcement of
the plans' boundaries and the change to Mr. Cook's registration
status," must be submitted for preclearance, and that the changes
are "legally unenforceable without Section 5 preclearance."47
The letter pointed out that "[i]t was the understanding of the
Attorney General, based on representations from county officials,
that Mr. Cook resided in district 5 under the redistricting plans
submitted for preclearance in 2002."
The district court, sitting as a single-judge court, held a
hearing on April 21, 2007, and granted plaintiffs' motion for a
temporary restraining order directing "that the qualifying period
for District 5 of the Randolph County Board of Education shall
begin as scheduled on April 24, 2006 and shall remain open until
further order of the Court." The case is set for trial before a
three-judge court on May 31, 2006.
The past and continuing history of intentional
discrimination against black voters in Randolph County
underscores the need for continuation of Section 5. In 1954,
Randolph County registrars challenged the qualifications of 525
black voters in the county, approximately 70% of the total number
of black registered voters. Approximately 225 of those
48. Thornton v. Martin, 1 R.R.L.Rptr. 213, 215 (M.D.
Ga. 1956).
49. James P. Turner, Acting Assistant Attorney
General, to Jesse Bowles, III, June 28, 1993.
21
challenged appeared and were examined, of whom 175 were found by
the registrars to be disqualified from voting. Twenty-two of
those who were disqualified filed suit in federal court, which
found the removal of blacks from the voter lists by county
registration officials "constituted an illegal discrimination
against them on account of their race and color."48 The court
ordered them restored to the voter rolls, and that each plaintiff
collect damages from the registrars in the amount of $40.
In 1993, the Department of Justice objected to a proposed
redistricting plan for the Randolph County Commission on the
grounds that it unnecessarily fragmented the black population in
one of the previously majority black districts. According to the
objection:
There appears to be a pattern of racially
polarized voting and substantially lower
levels of participation by black voters
relative to white voters in Randolph County
elections. In this context, the identified
fragmentation of black population
concentrations has the effect of limiting the
opportunity for black voters to elect
candidates of their choice.49
In the same letter, the Attorney General also objected to an
educational requirement (diploma or GED) for school board members
22
on the grounds that it would have a racially discriminatory,
regressive effect:
where the pronounced disparate impact of the
proposed educational requirement appears to
have been well-known, your submission does
not provide an adequate non-racial
justification for this requirement.
The implementation of the changes at issue in the present
litigation shows that minority voting rights are still in
jeopardy in Randolph County. The reassignment of a black
incumbent from the majority black district in which he was
elected to a majority white district would deprive minority
voters of the opportunity of voting for a candidate whom they had
previously approved, and would undoubtedly deprive those voters
of effective representation on the Board of Education.
While the Boerne line of cases consistently cited the
provisions of the Voting Rights Act as proper exercises of
congressional authority to enforce the Fourteenth and Fifteenth
Amendment, the extensive record compiled by Congress - the
hearings, reports, and debates - establishes the continuing need
for Section 5.
The Deterrent Effect of Section 5
Aside from blocking discriminatory voting changes, Section 5
has a strong deterrent effect. A recent example of that involves
congressional redistricting in Georgia carried out by
50. HB 499 (2005).
23
Republicans in 2005 once they gained control of the house,
senate, and governor's office. The legislature passed
resolutions that any redistricting had to be done in conformity
with Section 5 and avoid retrogression. And the plan that the
legislature adopted in 2005 did exactly that.50
The black percentages in the majority black districts (John
Lewis, Cynthia McKinney), as well as the black percentages in the
majority white coalition districts that had elected blacks (David
Scott, Sanford Bishop) were kept at almost exactly the same
levels as under the plan that had been passed by the Democrats in
2002. I think one can fairly conclude that the legislature was
determined that it would not have a Section 5 retrogression
dispute on its hands after it passed the 2005 plan. Thus, even
in the absence of an objection from DOJ, Section 5 obviously
played an important role in the redistricting process.
I'm not sure what the state would have done in the absence
of Section 5. In the brief it filed in the Supreme Court in
Georgia v. Ashcroft (2003), involving preclearance of three of
the state's senate districts, the state argued that the
retrogression standard of Section 5 should be abolished, and that
all of the majority black districts in the state could be
51. 539 U.S. 461 (2003), Brief of Appellant State of
Georgia.
24
abolished under the new standard for preclearance which it
proposed.51
The state also argued that minorities should never be
allowed to participate in the preclearance process. Thus, the
very group for whose protection Section 5 was enacted would have
no say on how a proposed change might impact the minority
community.
There is nothing in the history of redistricting in the
state, past or present, to suggest that in the absence of Section
5 the party or faction in control would refrain from manipulating
black voters and diminishing their political power for partisan
purposes. Those who say that Section 5 has outlived its
usefulness ignore, among other things, the undeniable deterrent
effect that the statute has.
Section 5's Impact on Court Ordered Remedies
Section 5 also continues to have a decided, and beneficial,
impact on court ordered remedies. In its opinion in Colleton
County Council (2003) implementing legislative and congressional
redistricting in South Carolina, the three-judge court held that
it must comply with Sections 2 and 5 of the Voting Rights Act.
Accordingly, it rejected plans that had been proposed by the
52. Colleton County Council v. McConnell, 201 F.Supp.2d 618,
628 (D.S.C. 2002).
53. Id. at 659.
25
governor and the legislature because they were "primarily driven
by policy choices designed to effect their particular partisan
goals."52 Those choices included protecting incumbents and
assigning the minority population to maximize the parties'
respective political opportunities.53 The plan implemented by
the court increased the number of majority black house districts
from 25 to 29, maintained the existing nine majority black senate
districts, and maintained the Sixth Congressional District as
majority black. Notably, none of the parties to the litigation
appealed.
A three-judge court in Georgia in Larios v. Cox (2004)
similarly applied Section 5 in implementing a court ordered
legislative plan following the failure of the state to enact a
plan on its own. The court appointed a special master to prepare
a plan, which initially paired nearly half of all black house
members (18 of 39), including long term incumbents and chairs of
important house committees. The Legislative Black Caucus moved
to intervene and filed a brief arguing that the proposed plan
would be retrogressive in violation of Section 5, and would also
violate the racial fairness standard of Section 2. The three54.
Larios v. Cox, 314 F.Supp.2d 1357 (N.D. Ga. 2004).
26
judge court, in agreement with the objections raised by the Black
Caucus, instructed the special master to redraw the plan to
avoid, where possible, the paring of incumbents. The special
master did so, and the plan as finally adopted by the court cured
the pairing of minority incumbents, except in an area near
Savannah where the paring was unavoidable.54
Both Colleton County Council and Larios v. Cox demonstrate
the critical role that Section 5 plays in court ordered
redistricting. In the absence of Section 5, the courts in the
South Carolina and Georgia cases may well have adopted plans that
subordinated minority voting rights to partisan goals or paired
black incumbents, thus depriving the black community of many of
its elected officials. The continuing importance of Section 5 is
apparent.
Continued Racial Bloc Voting
One of the most sobering facts to emerge from the record
compiled by Congress is the continuing presence of racially
polarized voting. While much progress has been made in minority
registration and office holding, the persistence of racial bloc
voting shows that race remains dynamic in the political process,
particularly in the covered jurisdictions.
55. Colleton County Council, 201 F.Supp.2d at 641.
27
The issue of polarization voting is covered in detail in the
ACLU's report, but I will mention one judicial finding that is
particularly revealing. A three-judge court in South Carolina in
2002 concluded that racially polarized voting:
has seen little change in the last decade.
Voting in South Carolina continues to be
racially polarized to a very high degree, in
all regions of the state and in both primary
and general elections. Statewide, black
citizens generally are a highly politically
cohesive group and whites engage in
significant white bloc-voting.55
Judicial findings of this sort underscore the continued need
for Section 5.
The Bossier II Fix
The House and Senate bills properly provide that a voting
practice adopted with any discriminatory purpose should be denied
preclearance. Bossier Parish, Louisiana, adopted a redistricting
plan for its 12 member school board in 1992. The parish was 20%
black, but all of the districts were majority white, despite the
fact that a plan could be drawn containing two majority black
districts. No black person had ever been elected to the school
board, and it was undisputed that the plan adopted by the parish
split black communities purposefully to avoid creating a majority
black district.
56. This history is set out in Reno v. Bossier Parish
School Bd., 528 U.S. 320, 324, 348 (2000) ("Bossier II").
57. Reno v. Bossier Parish School Bd., 7 F. Supp. 2d 29,
31-2 (D. D.C. 1998).
58. In Reno v. Bossier Parish School Bd., 520 U.S. 471
(1997), known as "Bossier I," the Court ruled that a voting
practice could not be denied preclearance under Section 5 merely
because it violated the results standard of Section 2, that a
retrogressive effect was required.
59. Bossier II, 528 U.S. at 328.
28
One board member said he favored black representation on the
board, but "a number of other board members opposed the idea."
Another board member said "the Board was hostile to the creation
of a majority-black district." In objecting to the plan, the
Attorney General concluded she was "not free to adopt a plan that
unnecessarily limits the opportunity for minority voters to elect
their candidates of choice."56
The District of Columbia court, however, precleared the
parish's plan. It held the 1992 plan was no worse than the
preexisting plan, in that neither contained any majority black
districts, and thus there was no "retrogressive intent."57 The
Supreme Court affirmed in a decision known as Bossier II.58 It
held "in light of our longstanding interpretation of the 'effect'
prong of § 5 in its application to vote dilution claims, the
language of § 5 leads to the conclusion that the 'purpose' prong
of § 5 covers only retrogressive dilution."59 Thus, an
admittedly discriminatory plan that was the product of
60. Id. at 366.
61. Busbee v. Smith, 549 F. Supp. 494, 501 (D. D.C. 1982).
29
intentional discrimination and had an undeniable discriminatory
effect, was nonetheless granted preclearance under Section 5.
The dissenters (Justices Souter, Stevens, Ginsburg and
Breyer) concluded that:
the full legislative history shows beyond any doubt
just what the unqualified text of § 5 provides. The
statute contains no reservation in favor of customary
abridgment grown familiar after years of relentless
discrimination, and the preclearance requirement was
not enacted to authorize covered jurisdictions to pour
old poison into new bottles.60
Had the Bossier II standard been in effect in 1982, the
District of Columbia court would have been required to preclear
Georgia's congressional redistricting plan, which was found by
the court to be the product of purposeful discrimination. In
that instance, the state had increased the black population in
the Fifth District over the benchmark plan, but kept it as a
district with a majority of white registered voters. The
remaining nine congressional districts were all solidly majority
white. As Joe Mack Wilson, the chief architect of redistricting
in the house told his colleagues on numerous occasions, "I don't
want to draw nigger districts."61 He explained to one fellow
house member, "I'm not going to draw a honky Republican district
62. Id., Deposition of Bettye Lowe, p. 36.
63. 539 U.S. 461 (2003).
64. Id. at 490.
30
and I'm not going to draw a nigger district if I can help it."62
Since the redrawn Fifth District did not make black voters
worse off than they had been under the preexisting plan, and even
though it was the product of intentional discrimination, the
purpose was not technically retrogressive and so, under Bossier
II, the plan would have been unobjectionable. Such a result
would be a parody of what the Voting Rights Act stands for. The
House and Senate bills provide a necessary remedy for the Bossier
II decision.
The Georgia v. Ashcroft Fix
The House and Senate bills properly provide that voting
practices that diminish the ability of minority voters to elect
their preferred candidates of choice should be denied
preclearance. In Georgia v. Ashcroft,63 the Supreme Court
vacated the decision of a three-judge court denying preclearance
to three state senate districts contained in Georgia's 2000
redistricting plan because, in its view, the district court "did
not engage in the correct retrogression analysis because it
focused too heavily on the ability of the minority group to elect
a candidate of its choice in the majority-minority districts."64
65. Georgia v. Ashcroft, 195 F. Supp. 2d 25, 89 (D. D.C.
2002).
66. Id., 539 U.S. at 480, 484, 486.
67. Id. at 482-83.
31
Although blacks were a majority of the voting age population in
all three districts, the district court held the state failed to
carry its burden of proof that the reductions in black voting age
population from the benchmark plan would not "decrease minority
voters' opportunities to elect candidates of choice."65 The
Supreme Court held that while this factor "is an important one in
the § 5 retrogression inquiry," and "remains an integral feature
in any § 5 analysis," it "cannot be dispositive or exclusive."66
The Court held other factors, which in its view the three-judge
court should have considered, included: "whether a new plan adds
or subtracts 'influence districts'--where minority voters may not
be able to elect a candidate of choice but can play a
substantial, if not decisive, role in the electoral process;" and
whether a plan achieves "greater overall representation of a
minority group by increasing the number of representatives
sympathetic to the interest of minority voters."67
The Supreme Court opined that "Georgia likely met its burden
of showing nonretrogression," but concluded: "We leave it for the
District Court to determine whether Georgia has indeed met its
68. Id. at 487, 489.
69. Larios v. Cox, 300 F. Supp. 2d 1320 (N.D. Ga. 2004),
aff'd 124 S. Ct. 2806 (2004).
70. Larios v. Cox, 314 F. Supp. 2d 1357 (N.D. Ga. 2004).
71. Id. at 494.
72. Id. at 495.
32
burden of proof."68 But before the district court could
reconsider and decide the case on remand, a local three-judge
court invalidated the senate plan on one person, one vote
grounds,69 and implemented a court ordered plan.70 As a
consequence, the preclearance of the three senate districts at
issue in Georgia v. Ashcroft was rendered moot.
The dissent in Georgia v. Ashcroft (Justices Souter,
Stevens, Ginsburg and Breyer) argued Section 5 had always meant
"that changes must not leave minority voters with less chance to
be effective in electing preferred candidates than they were
before the change."71 The dissenters also argued that the
majority's "new understanding" of Section 5 failed "to identify
or measure the degree of influence necessary to avoid the
retrogression the Court nominally retains as the § 5
touchstone."72
The majority opinion introduced new, difficult to apply, and
contradictory standards. According to the Court, the ability to
elect is "important" and "integral," but a court must now also
consider the ability to "influence" and elect "sympathetic"
73. The court's findings are at RWTAAAC v. McWherter, 836
F. Supp. 447, 457, 459, 460-61, 463, 466 (W.D. Tenn. 1993). The
court's subsequent refusal to order a remedial plan is at RWTAAAC
v. McWherter, 877 F. Supp. 1096 (W.D. Tenn. 1995). The
litigation is also discussed in detail in the ACLU's report.
33
representatives. The Court took a standard that focused on the
ability to elect candidates of choice, that was understood and
applied, and turned it into something subjective, abstract, and
impressionistic. The danger of the Court's opinion is that it
may allow states to turn black and other minority voters into
second class voters, who can "influence" the election of white
candidates but cannot elect candidates of their choice or of
their own race. That is a result Section 5 was enacted expressly
to avoid.
Georgia v. Ashcroft was decided in 2003, after most of the
redistricting following the 2000 census had been completed, but
at least one case decided prior to Ashcroft applied an
"influence" theory to the serious detriment of minority voters.
In 1993, a three-judge court made extensive findings of past and
continuing discrimination and extreme racial bloc voting in Rural
West Tennessee, but refused to require a majority black senate
district in that part of the state because of the existence of
three "influence" districts in which blacks were 31% to 33% of
the voting age population.73
74. Id., 887 F. Supp. 1096, 1106 (W.D.Tenn. 1995).
34
The court acknowledged that as a factual matter blacks did
not have the equal opportunity to elect candidates of their
choice under the existing senate plan, but it was also of the
view that white elected officials were often responsive to the
needs of blacks and that "adding an additional majority-minority
district in western Tennessee would actually reduce the influence
of black voters in the Tennessee Senate." It found "most
probative" for this proposition the testimony of a white senator,
Stephen Cohen, from west Tennessee concerning passage of a bill
to make the birthday of Martin Luther King, Jr. a state holiday.
According to Senator Cohen, the bill passed the state senate
by only one vote (17 to 16), with Senator Cohen and another white
senator from west Tennessee voting with the majority. Senator
Cohen concluded, and the district court found, that the creation
of an additional black senate district would cause the election
of "at least one more conservative white senator" who "would have
been inclined to vote against the Martin Luther King holiday"
ensuring that the measure would not have passed.74 Senator
Cohen and the court, however, were mistaken.
According to the Senate Journal, only eight senators voted
against the Martin Luther King, Jr. bill, with 18 "Ayes" and six
75. Tennessee Senate Journal, May 24, 1984, p. 2831.
76. 509 U.S. 630 (1993).
77. See, e.g., Johnson v. Miller, 515 U.S. 900 (1995). Far
from being segregated, as the white plaintiffs maintained, the
challenged districts were among the most integrated districts in
the nation.
35
"Present, not voting."75 The bill would have passed without
Senator Cohen's vote. What the court's "influence" theory in
fact accomplished was to deprive African American voters in Rural
West Tennessee of the opportunity to elect a candidate of their
choice to the state senate.
The inherent fallacy of the notion that influence can be a
substitute for the ability to elect is apparent from the Shaw v.
Reno76 line of cases, which were brought by whites who were
redistricted into majority black districts. Rather than relish
the fact that they could "play a substantial, if not decisive,
role in the electoral process," and perhaps could achieve
"greater overall representation . . . by increasing the number of
representatives sympathetic to the[ir] interest," white voters
argued that placing them in "influence" districts, i.e., majority
black districts, was unconstitutional, and the Supreme Court
agreed.77 In addition, if "influence" were all that it is said
to be, whites would be clamoring to be a minority in as many
districts as possible. Most white voters would reject such a
suggestion out of hand.
78. Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).
36
Conclusion
The Supreme Court has called the right to vote "a
fundamental political right, because preservative of all
rights."78 The House and Senate bills will help ensure that the
fundamental right to vote remains a reality.