Voting Rights Act Research Paper - Examples

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On July 27, 2006, President George W. Bush signed the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Reauthorization and Amendments Act of 2006 into law. That act extended several key but nonpermanent parts of the Voting Rights Act (VRA) of 1965 and its subsequent amendments.

The renewal was preceded by debates about whether the VRA was still necessary. The VRA is and has been one of the most important laws in American history. Aimed at eradicating systematic discrimination against minorities and specifically at securing their voting rights, the VRA enabled the federal government to take affirmative steps toward ensuring racial equality and political fairness. Nonetheless, the renewal and extension of the VRA in July 2006 indicated that the battle to achieve nationwide political fairness was not over.

Background And Genesis

The Voting Rights Act was signed into law by President Lyndon Johnson on August 6, 1965. The act was passed essentially to enforce the provisions of the Fifteenth Amendment, which states, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color or previous condition of servitude.” Despite the passage of the Fifteenth Amendment, along with the Thirteenth and Fourteenth Amendments to the Constitution, blacks systematically had been denied access to the franchise and the free exercise of their constitutional rights for the better part of a century.

The president’s determination to introduce the VRA was crystallized by the events of February and March 1965. The Reverend Martin Luther King had been arrested in Selma, Alabama. Peaceful protest marches ensued as King and other civil rights workers attempted to organize resistance to the institutionalized system of racial discrimination known as Jim Crow. The peaceful marches were met and dispersed by police violence. Clergy and other marchers were beaten and in some cases killed.

On March 7 marchers seeking to march from Selma to Montgomery were stopped on the Edmund Pettus Bridge leading out of Selma. There the marchers were beaten in another outbreak of police violence. This time, however, the violence was broadcast on national television.

On March 15, 1965, President Johnson spoke to a special joint session of Congress. In that speech he acknowledged that despite the passage of the Fifteenth Amendment black voters had been prevented systematically from exercising the franchise: “Experience has shown that the existing processes of law cannot overcome systematic and ingenious discrimination. No law that we now have on the books—and I have helped to put three of them there—can ensure the right to vote when local officials are determined to deny it” (Johnson 1965).

The Voting Rights Act Of 1965

The key provisions of the VRA were as follows:

Section 2 of the act essentially restated the Fifteenth Amendment: “No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.”
Section 4 explicitly forbade the use of literacy tests or other devices to deny citizens access to the franchise or the polling booths.
Section 5 imposed “preclearance requirements” on any state or political subdivision that as of November 1, 1964, had used literacy tests and in which less than 50 percent of the voting-age population was registered to vote or in which less than 50 percent of registered voters voted in the presidential election of 1964.

In any political subdivision that met those criteria Section 5 required that the government submit any change to a “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964” to the United States District Court for the District of Columbia or the United States Department of Justice for approval. Section 5 thus was designed to prevent surreptitious or invidious attempts by local or state governments to continue to disenfranchise minority voters despite the intent of the VRA.

Controversies

Several controversies arose as a result of the VRA, and all of them led to Supreme Court litigation. The first dealt with the scope of the act. What actually constituted a “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting”? Local officials who tried to resist the VRA took advantage of that ambiguity to craft subtle but effective practices that would limit the capacity of minorities to vote. As Abigail Thernstrom noted in 1987, “By 1969 public officials in Mississippi and elsewhere had made all too plain their readiness to alter the electoral environment by instituting, for instance, county-wide voting, eliminating the single member districts from which some blacks were likely to get elected” (Thernstrom 1987, p. 4).

In 1969 in Allen v. State Board of Elections the Supreme Court heard challenges to such laws passed by several southern states. The states argued that because the changes had no impact on black voters’ access to the polls, they were not covered by the VRA. However, in striking down those laws, the Supreme Court ruled that the franchise entailed more than mere access to the polls. The challenged laws included the following:

A 1966 Mississippi law that allowed counties to change the manner in which their boards supervisors were elected. Instead of using districts, they could use at-large elections.
Another Mississippi law that allowed the boards of education in eleven counties to appoint the superintendent of education (instead of electing the superintendent).
A Mississippi law that changed the requirements for independent candidates running in general elections.
A Virginia law that changed the requirements for casting write-in ballots.

In striking down those laws, the Court ruled:

The Voting Rights Act was aimed at the subtle, as well as the obvious, state regulations, which have the effect of denying citizens their right to vote because of their race. Moreover, compatible with the decisions of this Court, the Act gives a broad interpretation to the right to vote, recognizing that voting includes “all action necessary to make a vote effective.” We are convinced that in passing the Voting Rights Act, Congress intended that state enactments such as those involved in the instant cases be subject to the 5 approval requirements. (Allen v. State Board of Elections, 565—566, internal citations omitted)

Thus, the Court expanded the scope and definition of the franchise to protect it from pernicious attempts to constrain its exercise.

Another major controversy arose in 1982. As it originally was written, the VRA could have been interpreted to require plaintiffs to forbid only those electoral arrangements which had been passed with the intent of diluting minority voting power. In 1982 Congress rewrote Section 2 to require only a demonstration that a challenged law had the effect of diluting minority voting strength. Legislative intent did not matter.

In Thornburg v. Gingles (1986) the Supreme Court sustained the new effects standard. Gingles thus placed a great deal of pressure on the states. It led to extensive efforts by the Justice Department to require states to draw legislative and congressional districts in a manner that would allow minority voters to constitute an electoral majority. That practice led to the creation of so-called majority-minority districts with truly bizarre shapes and gave rise to another controversy: If districts drawn to shut minority voters out of politics were unconstitutional, could districts drawn to ensure their chances of election survive constitutional scrutiny?

In Shaw v. Reno (1993) the Court ruled that a redistricting scheme that was “unexplainable” on grounds other than race would violate the equal protection clause of the Fourteenth Amendment. If the record indicated that racial considerations had played a determining role in the construction of a challenged district and if the district’s shape indicated that the legislature had forsaken “traditional districting principles” to such an extent that its outline was “highly irregular,” “bizarre,” and “irrational on its face” (Shaw, 648), the redistricting plan would run afoul of the equal protection clause of the Fourteenth Amendment.

Shaw rewrote the rules of the districting process. Gingles had indicated that if states did not draw districts to enhance minority representational opportunities, they were guilty of vote dilution in violation of Section 2 of the VRA. According to Shaw, if they went too far in drawing majority-minority districts, particularly in states that did not have large demographic concentrations of African American voters, they risked a Fourteenth Amendment challenge.

Shaw And The Double Standard Of Voting Rights

After Shaw voting rights law was based on a double standard. Districts drawn to harm minority voters were unconstitutional, but districts drawn to help them were also unconstitutional even though it was constitutionally permissible to draw them to help other groups, such as incumbents, urban and rural voters, Democrats and Republicans, and other ethnic groups. In subsequent rulings the Supreme Court resolved that double standard by modifying its stand against racial gerrymandering.

In Miller v. Johnson the Court declared congressional districts in Georgia unconstitutional because the legislative record clearly demonstrated that they had been drawn with the explicit intent of maximizing the number of majority-minority districts. In her concurrence, however, Justice O’Connor indicated that the double standard in Shaw was problematic:

The standard [for assessing the constitutionality of districts] would be no different if a legislature had drawn the boundaries to favor some other ethnic group; certainly the standard does not treat efforts to create majority-minority districts less favorably than similar efforts on behalf of other groups____ Application of the Court’s standard does not throw into doubt the vast majority of the Nation’s 435 congressional districts, where presumably the States have drawn the boundaries in accordance with their customary districting principles. That is so even though race may well have been considered in the redistricting process. (Miller, 928-929, O’Connor, J., concurring) O’Connor thus acknowledged that factors such as race and ethnicity are part of the redistricting process.

But, she said, the Shaw standard at least allowed the Court to police “extreme instances of gerrymandering.”

Eradicating Shaw’s Double Standard

A majority of the Court finally acknowledged the tensions in its voting rights jurisprudence. In Easley v. Cromartie (2001) the Court declared majority-minority congressional districts in North Carolina constitutional despite their bizarre shapes because they were the product of a multitude of factors only one of which was race. In so doing, the Court set forth a standard of proof that made it easier for states to avert a Shaw challenge while simultaneously upholding the goals of the VRA.

So long as states could demonstrate that some other factor besides race played an important role in the drafting of legislative district lines, they could defend a districting scheme by explaining that race did not “predominate” (Easley, 258). The Court thus drew upon a statement made by Justice O’Connor in Bush v. Vera: “If district lines merely correlate with race because they are drawn on the basis of political affiliation, which correlates with race, there is no racial classification to justify” (Bush v. Vera, 968). Thus, the Court explained that “the Constitution does not place an affirmative obligation upon the legislature to avoid creating districts that turn out to be heavily, even majority, minority. It simply imposes an obligation not to create such districts for predominantly racial, as opposed to political or traditional, districting motivations” (Easley, 248).

Easley allowed courts to look at a racially remedial gerrymander and declare it nothing more than a partisan or incumbent one. By declaring that race had to be the predominant factor in a redistricting plan, the Court enabled states to defend their plans by offering a plausible partisan alternative explanation for their districting decisions. In this respect the states could cloak a racial gerrymander in partisan clothing and move on.

Retrogression And Preclearance

Although the line of cases from Shaw to Cromartie addressed the manner in which states and the Justice Department could remedy claims of vote dilution, the Supreme Court also had to address key issues concerning the preclearance provision in Section 5. Specifically, the Court had to determine the scope and definition of “retrogression.” In Georgia v. Ashcroft (2003) the Supreme Court ruled that a reduction in the number of majority-minority districts in a covered jurisdiction did not necessarily amount to a retrogression in minority voting power. In some cases states could draw so-called minority “influence” districts. In those districts, it was argued, minority candidates could win even though the districts were not composed of a majority of minority voters.

The development of this strategy for enhancing minority voting strength was a reaction to the Shaw line of cases. Scholars such as Sam Hirsch (2002) had demonstrated that minority candidates could win elections in minority influence districts if their campaigns were crafted carefully. Insofar as such districts were not drawn to ensure that minority voters constituted a majority of the population, they did not run afoul of the standard set forth in Shaw. Speaking for the Court, Justice O’Connor stated: A court should not focus solely on the comparative ability of a minority group to elect a candidate of its choice. While this factor is an important one in the § 5 retrogression inquiry, it cannot be dispositive or exclusive … to maximize the electoral success of a minority group, a State may choose to create a certain number of “safe” districts, in which it is highly likely that minority voters will be able to elect the candidate of their choice. Alternatively, a State may choose to create a greater number of districts in which it is likely—although perhaps not quite as likely as under the benchmark plan— that minority voters will be able to elect candidates of their choice. (Ashcroft, 480)

She concluded: “Section 5 gives States the flexibility to choose one theory of effective representation over the other” (Ashcroft, 482).

Implications And Fears

In some aspects the decisions in Easley v. Cromartie and Georgia v. Ashcroft represent a great victory and resonate with the spirit of the VRA. They permit the practice of drawing districts to help racial and ethnic minority voters gain representation that has benefited other groups of voters throughout American history. However, they do so in a manner that prevents unabashed attempts to draw electoral districts that are guaranteed to produce a particular result. In this respect they manifest a bizarre irony: The battle to end discrimination against minority voters by gerrymandering electoral districts has been won by giving minorities the same chance as every other political group to gerrymander electoral districts in their favor.

The controversy surrounding ways to define and prevent minority vote dilution and retrogression remains a key focus of the VRA. However, although academic debates about the superiority of majority-minority districts or minority influence districts endure, they demonstrate the positive impact of the VRA. Instead of fighting to protect minority voting rights, scholars and practitioners now debate how best to protect the franchise.

Despite these advances the possibility that some parts of the VRA might have expired in 2007 generated controversy and debate. Studies by many organizations ranging from the American Civil Liberties Union to the National Commission on the Voting Rights Act demonstrated that in many ways many Americans still were unable to exercise the franchise freely.

The renewal of the language provisions manifested the scope and complexity of expanding voting rights protections further. As the election of 2000 and the passage of the Help America Vote Act demonstrated, many obstacles to the truly free exercise of the franchise have continued to exist. They range from making sure that non—English speakers are able to register and vote to ensuring that voting procedures are not confusing and that voting machines function properly.

Thus, although the VRA and the ensuing Supreme Court decisions have resulted in a fairer process of drawing voting districts and a means by which the federal government can be called on to oversee changes in local election laws, the renewal of the nonpermanent provisions of the act in 2007 demonstrates the need to continue policing the electoral process and the renewed national commitment to preserving the integrity of American democracy.

Bibliography:

Allen v. State Board of Elections, 393 U.S. 544. 1969. http://caselaw.lp.findlaw.com/cgibin/getcase.pl?court=US&vol=393&invol=544.
Bush v. Vera, 512 U.S. 952. 1996. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=517&invol=952.
Easley v. Cromartie, 532 U.S. 234. 2001. http://law.onecle.com/ussc/532/532us234.html.
Frederickson, Caroline, and Deborah Vagins. 2006. Promises to Keep: The Impact of the Voting Rights Act in 2006. Washington DC: American Civil Liberties Union.
Georgia v. Ashcroft, 539 U.S. 461. 2003. http://caselaw.lp.findlaw.com/cgibin/getcase.pl?navby=case&court=US&vol=539&invol=461.
Hirsch, Sam. 2002. Unpacking Page v. Bartels : A Fresh Redistricting Paradigm Emerges in New Jersey. Election Law Journal 1: 7–23.
Johnson, Lyndon B. 1965. Special Message to Congress: The American Promise. March 15. National Archives and Records Administration, Lyndon Baines Johnson Library and Museum, Austin, TX.
http://www.lbjlib.utexas.edu/johnson/archives.hom/speeches.hom/650315.asp.
Karlan, Pamela S. 2004. Georgia v. Ashcroft and the Retrogression of Retrogression. Election Law Journal 3: 21–36.
National Commission on the Voting Rights Act. 2006.
Protecting Minority Voters: The Voting Rights Act at Work, 1982–2005. Washington DC: Lawyers’ Committee for Civil Rights under Law.
Raskin, Jamin. 1998. The Supreme Court’s Racial Double Standard in Redistricting: Bizarre Jurisprudence, Bizarre Scholarship. Journal of Law and Politics 14: 591–666.
Rush, Mark E. 2006. The Voting Rights Act and Its Discontents. In The Voting Rights Act: Securing the Ballot, ed.
Richard M. Valelly, 145–160. Washington, DC: CQ Press. Shaw v. Reno, 509 U.S. 630. 1993.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=509&invol=630.
Thernstrom, Abigail M. 1987. Whose Votes Count? Affirmative Action and Minority Voting Rights. Cambridge, MA: Harvard University Press.
Thornburg v. Gingles, 478 U.S. 30. 1986. http://supreme.justia.com/us/478/30/.
Valelly, Richard M., ed. 2006. The Voting Rights Act: Securing the Ballot. Washington, DC: Congressional Quarterly.