The Right to Vote
Page 38
The growing militance of the black freedom movement only stiffened the opposition. The governors of Alabama and Mississippi refused to desegregate their universities; voting districts were gerrymandered to dilute the influence of blacks who did manage to register; freedom riders were beaten and their buses burned; police arrested protestors by the thousands; bombs were tossed into black churches; and activists were occasionally—as in Mississippi in 1964—murdered in cold blood. In 1961, the CCR (whose life had been extended by the 1960 legislation) reported that “in some 100 counties in eight Southern States,” discriminatory laws, arbitrary registration rulings, and threats of “physical violence or economic reprisal” still kept most “Negro citizens . . . from exercising the right to vote.”9
The commission also concluded that the federal government’s reliance on county-by-county litigation was too “time consuming, expensive, and difficult” to bring an end to discriminatory voting practices. “Broader measures are required,” the CCR intoned, urging Congress once again to pass legislation “providing that all citizens of the United States shall have a right to vote in Federal or State elections” if they could meet reasonable age and residency requirements and had not been convicted of a felony.10
Neither Congress nor President John Kennedy was ready to bite that bullet. Although Kennedy’s narrow electoral victory owed a great deal to black voters, he lacked a strong popular mandate, had limited influence with Congress, and did not regard civil rights as a high-priority issue. His approach, accordingly, was nearly as cautious as Eisenhower’s: the Justice Department filed lawsuits to enforce the Civil Rights Acts, and the administration supported what had become an uncontroversial constitutional amendment to ban poll taxes in federal elections (only four states still had poll taxes). More innovatively, the Kennedy administration fostered the creation of a Voter Education Project that channeled the energies of civil rights activists into a campaign to promote voter registration. These efforts bore some fruit. Rulings by federal judges stripped away more of the legal camouflage that was sheltering discrimination; the Twenty-fourth Amendment was ratified with relatively little opposition; and black registration in the South rose to more than 40 percent by 1964. Still, the pace of legal progress was outstripped by the acceleration of conflict in the South. Consequently, the administration in 1963 drafted an omnibus civil rights bill designed to give strong federal support to equal rights, although it said little about voting rights per se.11
Kennedy did not live to witness the passage of his civil rights bill, but his successor, Lyndon Johnson, seized the moment after Kennedy’s assassination to obtain the bill’s passage as a tribute to the late president. As important, Johnson himself was elected to the presidency in 1964 with an enormous popular vote, offering the first southern president in a century the opportunity to complete the Second Reconstruction. Personally sympathetic to the cause of black suffrage, bidding for a place in history, and prodded by the nationally televised spectacle of police beatings and arrests of peaceful, prosuffrage marchers in Selma, Alabama, Johnson went to Congress in March 1965 to urge passage of a national Voting Rights Act. “The outraged conscience of a nation” demanded action, he told a joint session of Congress. “It is wrong—deadly wrong—to deny any of your fellow Americans the right to vote,” he reminded his former colleagues from the South. Then, rhetorically identifying himself with the civil rights movement, he insisted that “it is really all of us, who must overcome the crippling legacy of bigotry and injustice. And we shall overcome.”12
Johnson’s words, spoken to a television audience of seventy million and to a somber, hushed Congress that interrupted him forty times with applause, were sincere, principled, and moving. Yet, astute politician that he was, the president also knew that the Democrats’ political balancing act was over: with the Civil Rights Act of 1964, the party had decisively tilted away from the white South and toward black voters, and now it was going to need as many black voters as possible to have a chance of winning southern states. Johnson understood that the politics of suffrage reform once again had entered its endgame: black enfranchisement would become a reality, and few politicians in either party wished to antagonize a new bloc of voters by opposing their enfranchisement.
The Voting Rights Acts
The Voting Rights Act of 1965 contained key elements demanded by civil rights activists and the Commission on Civil Rights; it also bore a strong resemblance to the never-passed Lodge Force Bill of the 1890s. Designed as a temporary, quasi-emergency measure, the act possessed an automatic “trigger” that immediately suspended literacy tests and other “devices” (including so-called good character requirements and the need for prospective registrants to have someone vouch for them) in states and counties where fewer than 50 percent of all adults had gone to the polls in 1964; the suspensions would remain in force for five years. In addition, the act authorized the attorney general to send federal examiners into the South to enroll voters and observe registration practices. To prevent the implementation of new discriminatory laws, section 5 of the act prohibited the governments of all affected areas from changing their electoral procedures without the approval (or “preclearance”) of the civil rights division of the Justice Department or a federal court in Washington. States could bring an end to federal supervision only by demonstrating to the federal court that they had not utilized any discriminatory devices for a period of five years. Finally, the act contained a congressional “finding” that poll taxes in state elections abridged the right to vote, and it instructed the Justice Department to initiate litigation to test their constitutionality.13
The Voting Rights Act was passed by an overwhelming majority, as moderate Republicans joined with Democrats to carry out what Johnson called the “tumbling” of “the last of the legal barriers” to voting. Some conservative Republicans and southern Democrats voted negatively, but recognizing the inevitability of the bill’s triumph and the political wisdom of supporting it, forty southern congressmen voted favorably. Hailed by one activist as “a milestone” equal in importance to the Emancipation Proclamation, the legislation had an immediate impact, particularly in the Deep South. Within a few months of the bill’s passage, the Justice Department dispatched examiners to more than thirty counties in four states; scores of thousands of blacks were registered by the examiners, while many more were enrolled by local registrars who accepted the law’s dictates to avoid federal intrusion. In Mississippi, black registration went from less than 10 percent in 1964 to almost 60 percent in 1968; in Alabama, the figure rose from 24 percent to 57 percent. In the region as a whole, roughly a million new voters were registered within a few years after the bill became law, bringing African-American registration to a record 62 percent.14
The Voting Rights Act of 1965 was indeed a milestone in American political history. A curious milestone, to be sure, since the essence of the act was simply an effort to enforce the Fifteenth Amendment, which had been law for almost a century. But the very fact that it had taken so long for a measure of this type to be adopted was a sign of its importance. Racial barriers to political participation had been a fundamental feature of American life, and resistance to racial equality was deeply ingrained; so too was resistance to federal intervention into the prerogatives of the states. That such resistance was finally overcome in the 1960s was a result of the convergence of a wide array of social and political forces: the changing socioeconomic structure of the South, the migration of blacks to southern cities, the growing electoral strength of African-American migrants in the North, the energies of the civil rights movement, the vanguard role played by black veterans of World War II, and a renewed American commitment to democracy occasioned by international struggles against fascism and communism. As is often the case, more contingent factors played a role as well—including the postassassination election of a skillful southern president, the talents of civil rights leaders such as Martin Luther King, Jr., and technological changes in media coverage that brought the viole
nce and ugliness of a “southern” problem into the homes of citizens throughout the nation.
The Voting Rights Act did not suddenly put an end to racial discrimination in southern politics. To a considerable degree, the locus of conflict shifted from the right to vote to the value of the vote (to be discussed later in this chapter), but reports from the field made clear, to the Justice Department and the CCR, that racial obstacles to enfranchisement per se also persisted long after 1965. As a result, the act (or, to be precise, its temporary provisions) was periodically renewed, even though the political climate grew more conservative with each passing decade. In 1970, despite significant reluctance in the Nixon administration and congressional jockeying to weaken the measure, the bill was renewed for five years, while the ban on literacy tests was extended to all states. In 1975, the act was extended for an additional seven years, and its reach enlarged to cover “language minorities,” including Hispanics, Native Americans, Alaskan Natives, and Asian Americans. (The “language minority” formulation was, in effect, a rubric for extending federal protection to racial and ethnic groups, other than African Americans, that had also been victims of discrimination; in addition to banning discrimination against members of those groups, the 1975 VRA required jurisdictions with sizable language minorities to provide ballots and other election materials in the minority language and to have translators available at the polls.) In 1982, despite the Reagan administration’s anti-civil rights posture, the act’s core provisions were extended for an additional twenty-five years. Throughout this period, the Justice Department, as well as the Civil Rights Commission, worked actively to promote black enfranchisement and reviewed thousands of proposed changes in electoral law.15
The debates surrounding these renewals—and they were substantial—were grounded in a new partisan configuration that in part was a consequence of the Voting Rights Act itself. By the late 1960s, all southern states contained a large bloc of black voters whose loyalty to the Democratic Party had been cemented by the events of the Kennedy and Johnson years; since these voters constituted a core Democratic constituency, Democratic politicians, even within the South, generally supported efforts to shore up black political rights. At the same time, conservative white Southerners, joined by some migrants into the region, flocked to the Republican Party, reviving its fortunes in the South and becoming a critical conservative force in the national party. Efforts to weaken the Voting Rights Act, or even to let it expire, invariably came from these southern Republicans and from national Republican leaders—such as Nixon and Ronald Reagan—who wanted and needed their support. The party of Lincoln, as one critic quipped, had donned a “Confederate uniform.” That almost all of these Republican efforts failed—despite the conservative drift of the 1970s and 1980s—was a clear sign that the nation had turned a corner, that formal racial barriers to enfranchisement were dead. In 1982, even South Carolina Republican Senator Strom Thurmond, who had led the Dixiecrat exodus from the Democratic Party in 1948, voted in favor of extending the Voting Rights Act, marking the first time in his astonishingly long career that he had supported passage of a civil rights bill.16
CODA: 2006
Key provisions of the 1982 Voting Rights Act were scheduled to expire or “sunset” on August 6, 2007. Roughly a decade earlier, an urban (and Internet) legend began to filter through African-American communities, claiming that “our right to vote will expire in the year 2007,” or—in a variant—that Congress would decide in 2007 “whether African Americans will be allowed to vote.” There was, of course, no truth to that remarkably widespread rumor, but, during the early years of the new century, the civil rights community was concerned about the impending need to reauthorize parts of the Voting Rights Act. Although most Democrats could be counted on to endorse renewal and by 2005 several prominent Republican leaders in Congress had signaled their support as well, the political environment was not unproblematic. Some Southerners were known to believe both that the act was no longer needed since it had achieved its objectives and that the preclearance requirement was burdensome and unfair. (For details regarding the preclearance requirement, see the later section of this chapter, “Preclearance and the Totality of Circumstances.”) Moreover, the White House was perceived to be aloof from the interests and needs of African Americans, the vast majority of whom voted Democratic, and the language-assistance provisions of the VRA were becoming increasingly controversial in a nation deeply divided on immigration issues. To complicate matters further, some allies of the civil rights movement were openly voicing concerns that the VRA needed to be revamped to fit the circumstances of the twenty-first century and that the constitutionality of an extension was open to challenge.17
Nonetheless, the Voting Rights Act was reauthorized, a year early, in July 2006 by a unanimous vote in the Senate and a vote of 390 to 33 in the House. That this occurred was testimony both to the central role that the VRA had come to play in protecting the rights of minority voters and to shrewd political strategies executed by the civil rights community and by the Republican leadership in Congress. Beginning in 2005, a small bipartisan group of legislators (led by the chair of the House Judiciary Committee, James Sensenbrenner, a Republican veteran of the 1982 renewal) negotiated the framework and language of a reauthorization act that would be introduced simultaneously in both houses of Congress under rules designed to avoid amendments and minimize the chances of a floor fight. Meanwhile, civil rights organizations, working with the House committee, developed an evidentiary record that demonstrated the need for renewal by documenting both ongoing instances of discrimination and the persistence of racially polarized voting. The rapid march to early passage of the bill in 2006 was briefly interrupted by a revolt of Republican members of the House, most of whom objected to the language-assistance provisions on the grounds that those provisions seemed to undercut the primacy of English as the language of the United States. But the revolt was quelled within a few weeks by Republican leaders who were determined to get the legislation passed and to keep the Voting Rights Act from becoming an issue in the upcoming 2006 congressional elections. In the end, some conservatives voted for the measure while hoping that the Supreme Court would find it unconstitutional.18
Substantively, the renewed act (called the Fanny Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendment Act of 2006) was much like its predecessors: it targeted the same states and counties for special coverage, while preserving both the section 5 preclearance requirement and the language-assistance provisions. As had occurred in 1982, the reauthorization also responded to recent Supreme Court decisions by strengthening the protection of minority interests in the drawing of boundaries for legislative districts. (See the discussion of districting later in this chapter.) A raft of possible modifications of the VRA—some of them quite far-reaching—were debated by lawmakers and civil rights activists, but they were shunted to the sidelines in the interest of political compromise and expedience.19
Although the framework of the 2006 act was very similar to the VRA’s earlier incarnations, the public and congressional debates surrounding reauthorization revealed how much things had changed since 1965. Despite the strong and disturbing record of ongoing discrimination, African Americans had become a far more vital force in American politics—and in southern politics—than they had been forty years earlier. Thanks in part to the Voting Rights Act itself, several dozen African-American members of Congress voted on reauthorization in 2006, one of whom, John Lewis of Georgia, had been among the marchers beaten in Selma in 1965. At the same time, the shape of the debate announced the rising importance of other minorities, especially Spanish-speaking immigrants who had become an important political constituency in numerous states. In defeating the effort to strip the language-assistance provisions out of the VRA, Republican and Democratic leaders were once again paying homage to the endgame dynamics of struggles over the franchise: it was risky political business to place obstacles in the way of millions
of men and women who were likely to end up voting anyway.20
Eight days after President Bush signed the reauthorized Voting Rights Act, it was challenged in court. (Regarding earlier court challenges to the VRA, see the next section of this chapter.) A Texas utility district, represented by a well-connected conservative Republican legal team, sought permission, under the VRA, to “bail out” from the section 5 preclearance requirement. More importantly, the lawsuit (Northwest Austin Municipal Utility District Number One v. Gonzales) also charged that Congress had exceeded its constitutional authority by extending the preclearance requirement, arguing that racial discrimination was no longer the problem it had been in 1965 and that section 5 imposed unfair and unnecessary burdens on the jurisdictions that it covered. In May 2008, a three-judge district court panel rejected the challenge, denying the district the right to bail out (on fairly technical grounds) and concluding that reauthorization of the VRA was “a valid exercise” of congressional authority. As expected, the plaintiffs appealed.21
In January 2009, the Supreme Court agreed to hear the case (relabeled NAMUDNO v. Holder) during its spring term. That it did so, rather than simply affirming the lower-court ruling, suggested that some members of the court were prepared to consider the claim that section 5, as reauthorized, was unconstitutional. This was hardly a surprise: several conservative justices, including Chief Justice John Roberts, had, in the past, expressed reservations about the VRA; and, as noted above, some liberals had been concerned about the constitutionality of the 2006 extension even as it was being drafted. (One potentially vulnerable feature of the 2006 act was that the preclearance provision continued to apply to the same jurisdictions that had been covered in 1965, regardless of any local changes that had occurred in voting behavior or race relations.) Nonetheless, many close observers of the Supreme Court thought it improbable that the court would take the politically volatile step of striking down a key provision of an iconic law—particularly by a vote that would almost certainly be narrow. While some believed that a majority of the court would uphold section 5, as it had done in earlier years, others suspected that the justices might find grounds on which to trim or reshape the section’s reach. It was also possible that the court would avoid the constitutional issues by permitting the utility district to bail out from the preclearance requirement. The court’s decision was expected in June 2009.22