The Case for Extending and Amending the Voting Rights Act - Introduction and Summary

INTRODUCTION

Five Presidents - Lyndon Johnson (1965), Richard Nixon (1970), Gerald Ford (1975), Ronald Reagan (1982), and George H. W. Bush (1992) - have supported the enactment or reauthorization of key parts of the Voting Rights Act. Dr. Martin Luther King, Jr. said that President Johnson's support of the Voting Rights Act had helped transform the bloody assault on civil rights marchers by state troopers at the Edmund Pettus Bridge in Selma, Alabama, into a "shining moment in the conscience of man."(1) On signing the 1982 extension of the Act, which passed Congress by a vote of 389 to 24, President Reagan called the right to vote the "crown jewel of American liberties."(2)

This report describes the voting rights litigation brought, or participated in, by the Voting Rights Project of the American Civil Liberties Union after the amendment and extension of the Voting Rights Act on June 29, 1982. It documents continuing purposeful discrimination in voting against racial minorities in the South and against American Indians in the West. It also demonstrates the urgent need for extension of the special provisions of the Act scheduled to expire in 2007: (1) Section 5 preclearance; (2) the minority language assistance provisions of Section 203; and (3) the federal examiner and election observer provisions.

Section 5 requires jurisdictions with significant histories of discrimination in voting to preclear, or get federal approval of, any new voting practices or procedures and to show that they do not have a discriminatory purpose or effect.(3) Preclearance may be granted by the Attorney General or the Federal District Court for the District of Columbia. The Senate Report that accompanied the 1982 extension of Section 5 warned that without the preclearance requirement, "many of the advances of the past decade could be wiped out overnight with new schemes and devices."(4) The minority language provisions of Section 203 require jurisdictions with significant numbers of American citizens who are limited in their ability to speak English to provide bilingual oral and written assistance in voting.(5) The special provisions also authorize the Attorney General to assign federal examiners and election observers to insure that minorities are allowed to register and vote without intimidation or discrimination.(6) Appendix A to this report describes in more detail the special provisions set to expire in 2007, as well as the permanent provisions of the Act. Appendix B lists the jurisdictions covered by the special provisions. Appendix C contains two tables showing those local jurisdictions required to provide minority language assistance in voting pursuant to Section 203 because of their American Indian populations, and displays which of these jurisdictions are also covered under Section 5.

EXECUTIVE SUMMARY

This report discusses the involvement of the ACLU Voting Rights Project in 293 cases brought in 31 states since June 1982, the date of the last extension of the special provisions of the Voting Rights Act, challenging discrimination in voting and failure to comply with federal and state election laws.(7) The states and the number of cases brought were: Alabama (9); Arkansas (2); California (1); Colorado (1); Connecticut (1); Florida (15); Georgia (145); Illinois (1); Kansas (2); Louisiana (4); Maryland (4); Michigan (1); Minnesota (2); Mississippi (3); Missouri (2); Montana (6); Nebraska (2); New Jersey (1); New Mexico (1); New York (1); North Carolina (17); Ohio (1); Pennsylvania (1); Rhode Island (2); South Carolina (38); South Dakota (6); Tennessee (3); Texas (3); Virginia (15); Washington (2); and Wyoming (1).

I. SECTION 5 HAS BLOCKED IMPLEMENTATION OF DISCRIMINATORY VOTING CHANGES
There have been more than 1,000 objections under Section 5 by the Department of Justice since 1982, encompassing an even greater number of voting changes in the covered jurisdictions. These objections protected millions of voters in thousands of elections over the past two decades. A few examples from the cases discussed in this report will suffice to illustrate the continuing importance of Section 5.

The City of Albany, Georgia: 2002-2003
Following the 2000 census, the City of Albany, Georgia, adopted a new redistricting plan for its mayor and commission to replace an existing malapportioned plan, but it was rejected by the Department of Justice under Section 5. The department noted that while the black population had steadily increased in Ward 4 over the past two decades, subsequent redistrictings had decreased the black population "in order to forestall the creation of a majority black district." The letter of objection concluded it was "implicit" that "the proposed plan was designed with the purpose to limit and retrogress the increased black voting strength in Ward 4, as well as in the city as a whole."(8) A subsequent court ordered plan remedied the vote dilution in Ward 4.(9) But in the absence of Section 5, elections would have gone forward under a plan in which purposeful discrimination was "implicit," and which could only have been challenged in time consuming vote dilution litigation under Section 2, in which the minority plaintiffs would have borne the burden of proof and expense.

Charleston County, South Carolina: 2003-2004
In 2003, South Carolina enacted legislation adopting the identical method of elections for the board of trustees of the Charleston County School District that had earlier, in a case involving the county council, been found to dilute minority voting strength in violation of Section 2.(10) Under the pre-existing system, school board elections were non-partisan, multi-seat contests decided by plurality vote, which allowed minority voters the opportunity to "bullet vote," or concentrate their votes on one or two candidates and elect them to office. That possibility would have been effectively eliminated under the proposed new partisan system.

In denying preclearance to the county's submission, the Department of Justice concluded "[t]he proposed change would significantly impair the present ability of minority voters to elect candidates of choice to the school board and to participate fully in the political process." The department noted further that:

every black member of the Charleston County delegation voted against the proposed change, some specifically citing the retrogressive nature of the change. Our investigation also reveals that the retrogressive nature of this change is not only recognized by black members of the delegation, but is recognized by other citizens in Charleston County, both elected and unelected.(11)

Section 5 thus prevented the state from implementing a new and retrogressive voting practice, one which everyone understood was adopted to dilute black voting strength and insure white control of the school board.

Georgia Redistricting: 1982-1983
A three-judge court in the District of Columbia denied preclearance to Georgia's infamous 1980 congressional redistricting plan finding that it was adopted with "a discriminatory purpose in violation of Section 5."(12) The decision was affirmed by the Supreme Court.(13)

Other Examples
Numerous other Section 5 objections are discussed in detail in this report. The objections in Florida include: state restrictions on registration and voting (1998). The objections in Georgia include: Adel, annexations (1982); Augusta, high school diploma requirement & annexations (1987); Augusta, date of referendum (1988); Augusta, consolidation (1989); Bibb County, special election (1988); Butler, majority vote requirement (1992); Clay County, candidate high school diploma requirement (1993); College Park, redistricting (1983); East Dublin, numbered posts and majority vote requirement (1991); Glynn County, consolidation (1982 & 1984); Griffin, redistricting (1985); Hinesville, majority vote requirement (1991); Jesup, redistricting and numbered posts and majority vote requirement (1986); Kingsland, numbered posts (1983); La Grange, redistricting (1993 & 1994); Lamar County, redistricting (1986); Lumber City, numbered posts and majority vote requirement (1988 & 1989); Lyons, redistricting (1985); Macon, deannexation (1987); Marion County, redistricting (2002); Millen, relocation of polling place (1995); Newnan, redistricting (1984); Newton, numbered posts (1997); Putnam County, redistricting (2002); Randolph County, redistricting (1993); Rome, staggered terms (1987); Sumter County, redistricting (1982); Tignall, numbered posts, staggered terms, and majority vote requirement (2000); Waynesboro, majority vote requirement (1994); Wrens, majority vote requirement (1986); and Wrightsville, relocation of polling place (1992). Objections in Louisiana include: state photo ID requirement (1994); and St. Francisville, redistricting (1993). Objections in Mississippi include: statewide dual registration (1997); and Perry County, redistricting (1991). Objections in North Carolina include: Ahoskie, annexations (1989); Edgecomb County, residency districts (1984); Laurinburg, annexations (1994); Martin County, residency districts (1986); Mt. Olive, redistricting (1994); and Rocky Mount, annexations (1984). The objections in South Carolina include: state legislative redistricting (1994); Batesburg, majority vote requirement (1986); Batesburg- Leesville, majority vote requirement (1993); Clinton, annexations (2002); Edgefield County, redistricting (1984); Edgefield County school district, redistricting (1987); Elloree, staggered terms and majority vote requirement (1984); Hemingway, annexations (1994); Johnston, redistricting (1992 & 1993); Orangeburg, redistricting (1985 & 1992); Sumter County, annexations (1985 & 1986); and Sumter County, redistricting (2002).

II. THERE IS A CONTINUING PATTERN OF BLOC VOTING AND RACIAL POLARIZATION IN THE COVERED JURISDICTIONS
One of the most sobering facts to emerge from this report, as well as from the decisions in other cases, 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. A few examples will suffice.

Racially Polarized Voting in South Carolina: 1984-2004
The three-judge court in Burton v. Sheheen, decided in 1992, relied upon the stipulation of the parties "that since 1984 there is evidence of racially polarized voting in South Carolina."(14) A subsequent three-judge court in Smith v. Beasley, decided in 1996, found that "[i]n South Carolina, voting has been, and still is, polarized by race. This voting pattern is general throughout the state."(15) In Colleton County Council v. McConnell, decided in 2002, the three-judge court made similar findings: "[v]oting 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."(16) In 2004, the court of appeals affirmed the finding of a district court in South Carolina "that voting in Charleston County Council elections is severely and characteristically polarized along racial lines."(17)

Racially Polarized Voting in Indian Country: 1986-2004
In invalidating South Dakota's 2000 legislative redistricting plan as diluting Indian voting strength in the area of the Pine Ridge and Rosebud Sioux Indian Reservations, the court found "'legally significant' white bloc voting."(18)

The court struck down at-large elections in Blaine County, Montana, finding that racially polarized voting "made it impossible for an American Indian to succeed in an at-large election."(19) In invalidating at-large elections in Big Horn County, the court made similar findings that "there is racial bloc voting," and "there is evidence that race is a factor in the minds of voters in making voting decisions."(20) Racially Polarized Voting in Georgia: 2002 The District Court for the District of Columbia, in a Section 5 preclearance action involving Georgia's legislative redistricting plan, found there were areas of the state where "white voters consistently vote against the preferred candidates of African Americans."(21)

Racially Polarized Voting in Tennessee: 1993-1994 A three-judge court found that in West Tennessee there is "a high level of white bloc voting which usually enables the majority to defeat the black community's candidate of choice," and that racial polarization is so extreme that "black candidates cannot expect to succeed in majority-white districts."(22)

Another court found in 1994 that "the level of racial bloc voting is increasing in Hamilton County making it more difficult than ever for a black to win a countywide judicial office."(23)

1 Nick Kotz, Judgment Days. Lyndon Baines Johnson, Martin Luther King, Jr., and the Laws that Changed America (Boston: Houghton Mifflin, 2005), p. 324.
2 President Ronald Reagan, Remarks on Signing the Voting Rights Act Amendments of 1982, June 29, 1982, Ronald Reagan Presidential Library, published at: http://www.reagan.utexas.edu/archives/speeches/1982/62982b.htm
3 42 U.S.C. § 1973c. A voting change has a discriminatory effect under Section 5 if it causes a "retrogression" in minority voting strength. Beer v. United States, 425 U.S. 130, 141 (1976).
4 S.Rep. No. 97-417, 97th Cong., 2d Sess. 10(1982).
5 42 U.S.C. §§ 1973b(f)(4) and aa-1a.
6 42 U.S.C. §§ 1973d, e, f & k.
7 The report discusses only those cases initiated, or participated in, by the ACLU Voting Rights Project, and does not include litigation brought independently by ACLU state affiliates, unless specifically noted. This report also discusses non-litigation interventions engaged in by the ACLU to protect the ability of minority voters to elect representatives of choice.
8 J. Michael Wiggins, Acting Assistant Attorney General, to Al Grieshaber Jr., September 23, 2002.
9 Wright v. City of Albany, Georgia, 306 F. Supp. 2d 1228 (M.D. Ga. 2003).
10 United States v. Charleston County and Moultrie v. Charleston County Council, 316 F. Supp. 2d 268 (D. S.C. 2003), aff'd 365 F.3d 341 (4th Cir. 2004), cert. den'd, 125 S. Ct. 606 (2004).
11 R. Alexander Acosta, Assistant Attorney General, to C. Havird Jones, Jr., February 26, 2004.
12 Busbee v. Smith, 549 F. Supp. 494, 517 (D. D.C. 1982).
13 Busbee v. Smith, 549 U.S. 1166 (1983).
14 Burton v. Sheheen, 793 F. Supp. 1329, 1357-58 (D. S.C. 1992).
15 Smith v. Beasley, 946 F. Supp. 1174, 1202 (D.S.C. 1996).
16 Colleton County Council v. McConnell, 201 F. Supp. 2d 618, 641 (D.S.C. 2002).
17 Moultrie v. Charleston County Council, 365 F.3d 341, 350 (4th Cir. 2004).
18 Bone Shirt v. Hazeltine, 336 F. Supp. 2d 976, 1017 (D.S.D. 2004).
19 United States v. Blaine County, Montana, 363 F.3d 897, 914 (9th Cir. 2004), cert. den'd, Blaine County v. United States, 125 S. Ct. 1824 (2005).
20 Windy Boy v. County of Big Horn, 647 F. Supp. 1002, 1013 D. Mont. 1986).
21 Georgia v. Ashcroft, 195 F. Supp. 2d 25, 31 (D. D.C. 2002).
22 RWTAAAC v. McWherter, 836 F. Supp. 453, 458, 462 (W.D. Tenn 1993).
23 Cousin v. McWherter, 840 F. Supp. 1210, 1215 (E.D. Tenn. 1994).