Voting Rights in Jeopardy

A rumor has been coursing through the Internet and black talk-radio shows: Congress will disenfranchise black Americans when it reconsiders the 1965 Voting Rights Act—which it must do by no later than 2007. The Congressional Black Caucus has fielded hundreds of anxious phone calls over the past two years; the Justice Department now posts a Web site rebuttal.

Such rumors illustrate that the "paranoid style" in American politics persists. Yet the Voting Rights Act is indeed under fire. In its inception, the act was structured to make sure black Americans could register and vote. But as techniques of resistance in the white South became more baroque, so did the act, its interpretation, and its remedies. To some critics, this shift signaled regulatory overreach and racial preference. And in the past decade, the use of racially conscious legislative districting to increase black representation has further stimulated political and judicial backlash. Today, political momentum has shifted to critics of the act, and a major rollback, either legislatively or through the courts, could well occur.

Massive Resistance

Prior to the Voting Rights Act of 1965, barriers to black registration and voting were massive and crude. The entire white southern way of life was at stake. It was voting rights, more than anything else, that stimulated the 1964 Freedom Summer, voting rights that split the 1964 Democratic National Convention, and voting rights for which young activists gave their lives. In 1964, Mississippi had only about 7 percent of its black voting-age population registered to vote, with a voting-age population that was 36 percent black, Alabama, with a voting-age population that was 26 percent black, registered less than one eligible black voter in four, and Louisiana, with a voting-age population that was 28 percent black, registered less than one in three. In 1964, out of about 29,000 local, state, and national elected officials in the entire ex-Confederacy of 11 states, just 16 such officials were black, 3 of these state legislators and 13 local officials.

The 1965 act focussed entirely on the franchise. The act contained two sets of provisions, permanent sections that prohibited discrimination in voting, and temporary elements for enforcement, subject to renewal. The most important of these temporary features was Section 5 pre-clearance, which empowers the Justice Department to pre-clear any proposed changes in local registration and voting procedures. But there were also other temporary sections that barred specific impediments to voting and that provided for direct federal observation or examination of electoral processes as they occurred. This was the most basic takeover by Washington of local civic functions since Reconstruction; it was richly deserved and roundly resented.

No sooner was the law enacted than several southern state legislatures adopted programs of massive resistance to voting rights, much like the earlier massive resistance to school desegregation. States recast entire systems of representation in order to dilute black influence. They permitted or required county and municipal governments to create at-large voting for public offices, which submerged geographic black voting strength within a larger white majority. They changed balloting systems so that black voters were forced to vote for entire tickets, thus blocking any "single-shot" or "bullet-voting" by blacks for a liberal or minority candidate, which had been permitted previously in some jurisdictions. They pushed local governments to establish absolute majority vote requirements for winners, thus preventing plurality victory by a black candidate over a split field of whites. They converted elective offices to offices appointed by officials likely to have exclusively white support. Finally, states reapportioned legislative and congressional district lines to submerge black voting strength in white majorities.

With these changes, blacks could vote—but could achieve neither fair representation nor elective office. In 1969, however, the Supreme Court rejected such vote dilution in Allen v. State Board of Elections. Mississippi officials had defended a 1966 maneuver converting the district election of county supervisors to an at-large election, as was permissible under the Voting Rights Act. Since the act ostensibly covered only registration requirements, Mississippi's change had not required clearance from the Justice Department.

The Supreme Court, however, grasped the essential politics of the matter. If blacks could not elect county supervisors, the old local white power structure would survive intact. Traditional white elites would continue to levy county taxes and spend county money as before, directing construction and maintenance money to white contractors and white neighborhoods, appointing all-white welfare and planning boards without concern for minority interests, and drawing up white jury lists for the state courts.

The Court ruled that such devices did in fact require clearance. It held that the right to vote can be affected by a "dilution of voting power as well as by obstacles to casting a ballot. Voters who are members of a racial minority might well be in the majority in one district, but in a decided minority in the county as a whole. This type of change could therefore nullify their ability to elect the candidate of their choice just as would prohibiting some of them from voting."

With Allen, the burden of proof shifted to affected states and localities to show that proposed changes in electoral systems, as well as voting procedures, were not discriminatory. Allen thus made it possible for the Justice Department to efficiently monitor the evolution of state and local electoral structures. The Justice Department's Civil Rights Division has scrutinized about 200,000 proposed changes to electoral rules since Allen and objected to about 1 percent of them.

In a subsequent 1973 decision from Texas, White v. Regester, the Court further held such vote dilution unconstitutional under the 14th Amendment. Armed with White, the private voting rights bar was able to overthrow many at-large structures and gerrymanders that predated the Voting Rights Act, in some cases by half a century. Litigation also challenged vote dilution in places not explicitly covered by Section 5, including southwestern jurisdictions where Anglo politicians had long rigged systems of representation to short-circuit Latino political influence.

The Allen and White rulings and the concept of "dilution of voting power" were in effect codified in the 1982 amendments to the Voting Rights Act. Congress said that while nothing in the act "establishes a right to have members of a protected class elected in numbers equal to their proportion in the population," it also provided that there is a "denial or abridgement of the right to vote" if electoral processes are not "equally open to participation" by "members of a protected class" and if such members "have less opportunity . . . to elect representatives of their choice."

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The Backlash

The entire anti-vote dilution movement of the past three decades, and the provisions of the Voting Rights Act supporting it, are now lightning rods for controversy. Critics such as Abigail Thernstrom see the anti-vote dilution approach as regulatory excess. She and kindred critics make three basic points. First, even in the Deep South, politics have sufficiently normalized to the point where heroic federal supervision of local affairs is no longer necessary. Second, anti-dilution measures, especially "racial gerrymandering," have gone too far and now amount to unconstitutional favoritism which violates the 14th Amendment. Third, liberal critics such as the political scientist Carol Swain argue that the herding of black voters into districts of their own has "bleached" surrounding districts, paradoxically leading to the overall election of more conservatives unfriendly to black interests.

Since the early 1990s, the Supreme Court itself has increasingly undermined the anti-vote dilution doctrine and program without explicitly reversing its earlier decisions. The Court has applied some of its long-held unease about affirmative action to the voting rights domain. A majority of the Court now holds that the equal protection clause of the 14th Amendment casts grave doubt on whether government efforts to aid minorities are any more defensible than government efforts to favor whites; ideally, government should be "color-blind." Four justices, Anthony Kennedy, William Rehnquist, Antonin Scalia, and Clarence Thomas, believe that all race-conscious policies—including voting rights policies—run some risk of being invidious. Racial classifications should therefore be subject to "strict" judicial scrutiny, and upheld only if there is a compelling interest in support of the classification. Otherwise, the policy denies equal protection of the laws.

Only the ambivalence of one justice has kept the Court from a major retreat on vote dilution. In key recent decisions, Justice Sandra Day O'Connor has sent mixed signals, leaving 30 years of anti-vote dilution law and politics under a cloud of constitutional suspicion. But there will likely be far less sympathy for the vote-dilution doctrine by the time the temporary provisions of the Voting Rights Act come up for statutory renewal in 2007.

Helms's Integrity

If the Supreme Court and/or Congress do substantially weaken the act, what then? The answer depends on how rational politicians with little attachment to minority interests will respond to a looser regulatory environment. Here the paradigmatic story is Jesse Helms's 1990 senatorial re-election campaign.

Recall that George Bush won the presidency in 1988 partly by savaging Willie Horton. His chief electoral strategist, the late Lee Atwater, used racial polarization to build the Republican Party. This was the national backdrop to events in North Carolina in the fall of 1990.

The Helms for Senate Committee and the North Carolina Republican Party arranged for 125,000 postcards to be mailed to black-majority voting precincts. The cards falsely stated that people who had recently changed residence would not be allowed to vote under North Carolina law, would be required to prove residence on election day, and risked federal criminal penalties of up to five years in jail if they gave false information. Two separate targeted mailings occurred after official voter registration figures showed that the percentage increase in African-American registration in the run-up to the election was twice that of white voters (10.6 percent, as opposed to 5.3 percent for whites). Polls also showed that Helms's African-American opponent, Democrat Harvey Gantt, was ahead eight points.

When thousands of postcards came back as undeliverable, the North Carolina Republican Party then began to draw up lists of voters who would be challenged on election day itself. The Justice Department swung against this last effort, and the Helms campaign dropped it. In early 1992, the various defendants and the Justice Department signed a consent decree enjoining such ballot security programs. (Helms evidently misjudged the Bush administration. Its assistant attorney general for civil rights refused to tolerate Helms's "ballot integrity" program.) Whether a future Justice Department could move against a future ballot integrity strategy depends on how seriously Congress and the courts weaken the Voting Rights Act.

Rights in Jeopardy

The Voting Rights Act, as applied, has been in trouble with the Supreme Court since the Shaw v. Reno decision of 1993, in which the Court limited racial gerrymandering. The Court ruled that white plaintiffs in the Twelfth Congressional District of North Carolina were entitled to a full lower court trial to determine whether the North Carolina state legislature had created a majority-black congressional district so gerrymandered that it violated the equal protection clause. Then, in a 1995 Georgia case, Miller v. Johnson, the Court stated that race cannot be a "predominant factor" in congressional districting. But a year later, in a Texas case, Bush v. Vera, the Court's vital "fifth vote," Justice O'Connor, defected from the coalition she had built in Shaw. In her opinion for the Court, O'Connor explicitly stated that the states could not reasonably avoid taking race into account when they drew congressional districts. Indeed, strict scrutiny did "not apply to all cases of intentional creation of majority-minority districts."

Nonetheless, if a Republican takes the oath of presidential office in January 2001, the balance on the Court will likely shift to the "color-blind" camp. During the next presidency, Justice John Paul Stevens will almost certainly retire. A larger majority might well openly conclude that anti-vote dilution policy is always subject to strict scrutiny. That would effectively nullify Section 2 of the Voting Rights Act, which holds that there is a "denial or abridgement of the right to vote" if electoral processes are not "equally open to participation" by "members of a protected class" and if such members "have less opportunity . . . to elect representatives of their choice."

For the second time in American history, the federal government might largely withdraw from enforcing black voting rights. This last happened in the mid-1890s, when the Democratic Party used the occasion of unified government during Grover Cleveland's second administration to repeal the federal election laws established during Reconstruction to enforce the 14th and 15th Amendments. In that vacuum of federal protection, black disenfranchisement accelerated between 1890 and 1910, as state constitutions were amended and legislatures instituted highly effective literacy tests and poll taxes. The great democratic experiment of Reconstruction expired. Shortly after, Congress and President Woodrow Wilson approved a thorough segregation of the federal workforce and of the government washrooms and lunchrooms in the District of Columbia. Symbolically, the federal government was now for whites only.

Of course, unlike in the 1890s, intense racism in electoral politics is now defunct. Both parties now compete for the votes of blacks, Hispanics, and Asian Americans. Further, even if racism persists, African Americans have political resources to take care of themselves—due in part to the Voting Rights Act itself. One of the architects of the act, Nicholas Katzenbach, emphasized this point in a recent interview (even as he characterized Shaw and Miller as "nutty decisions"). Every southern legislature has experienced black office holders. Many white politicians have large numbers of black constituents. The playing field in race relations may well be level enough to compensate for federal departure from electoral regulation.

Or is it? As an aphorism attributed to Mark Twain has it, "History may not repeat itself but it sure can rhyme." Here is how history might rhyme.

How History Might Rhyme (I)

First, minority voters might suddenly find the act of voting a bit more chilling. If Congress declines to renew the act's pre-clearance mechanism, then local governments could resort to a variety of tempting tactics. For instance, they would be free to relocate the polls to predominantly white schools in neighborhoods known for, say, aggressive policing. Such ploys occurred in the 1970s; are we sure they would not happen again?

Expiration of the act's special provisions would also end the federal observer and examiner mechanism. Crude, Jesse Helms-style "ballot integrity" programs could well produce lawsuits under the weaker 1957 and 1960 Civil Rights Acts. But even armed with the full statutory authority of the 1965 act as strengthened in 1975 and 1982, the feds did not smoothly swing into action against Helms's 1990 ballot security campaign. A former attorney at the Justice Department told me recently that it was a "Herculean task" to assemble a bureaucratic coalition for intervention. Most ballot integrity programs are more subtle, like the radio ads in a local Texas contest in the early 1990s that sought to confuse elderly black voters about whether their absentee voting was legal. Or they resemble New York City Mayor Rudy Giuliani's campaign against his predecessor, David Dinkins, in which city police officers placed posters in Hispanic neighborhoods announcing that noncitizens who voted would be subject to penalties by the Immigration and Naturalization Service.

With a weaker statute, most such maneuvers would fly below the Justice Department's radar, but still dissuade minority voting. The temptation is enormous, in a close election, to try some funny stuff to keep some minority voters away from the polls, particularly if the candidate has already written off minority support.

How History Might Rhyme (II)

There's a second way history could rhyme. Local governments with narrow white electoral majorities could return to at-large elections for city or county government. Or they could annex white suburbs or make other kinds of changes that produce vote dilution. But without Section 5 pre-clearance, the burden of proving discriminatory intent would shift to minority plaintiffs. Some changes might actually be immune from challenge at all. Earlier in this decade, the Eleventh Circuit Court of Appeals held that judicial elections were immune from vote dilution claims if a state argued that it had a compelling interest in having such elections be at-large. Obviously this could be a slippery slope toward more at-large elections.

A critical factor here is the increased conservatism of the southern federal courts and of their appellate circuits. In this decade, judges appointed by Reagan and Bush have shown a willingness to increase the burdens of proof on minority plaintiffs. Vote dilution cases often rest on a demonstration of what is known as "racially polarized voting," that is, a history of cohesive bloc voting by white voters in the majority such that no ordinary black politician can ever hope to crack it. In 1986, in Thornburgh v. Gingles, the Supreme Court held that remedies to vote dilution could be implemented under the Voting Rights Act if there was strong evidence that this factor of racially polarized voting consistently blocked minority electoral success. Yet in the mid-1990s, the Fourth Circuit Court of Appeals ruled, absurdly, that proof of racially polarized voting must show that such voting is found both in elections with a minority candidate and in elections with no minority candidate. The Fifth Circuit Court of Appeals has held that proof of racially polarized voting requires disentangling racial animus among white voters from their party identification and showing it to be the primary factor in racially polarized voting—a fairly extraordinary intent standard.

In other words, a return to old-fashioned vote dilution could occur simply through shifting the odd, costly burdens of proof to minority plaintiffs. In a more permissive environment of a weaker act, the entire landscape of voting would be different. And all of this would be occurring in the context of dramatically altered public opinion.

In 1987—one year after a decision in which a friendlier Supreme Court explained how voting rights plaintiffs could implement the new, amended Section 2, the political scientist Abigail Thernstrom published an influential attack on the anti-vote dilution program. In Whose Votes Count?, she spelled out what she considered regulatory excess. Since her book appeared, several critical propositions about the Voting Rights Act have gained a wide audience.

First, as noted, the regulatory excess critique of the Voting Rights Act holds that special provisions for minority office-holding were unnecessary; black politicians would have done fine on their own. Critics such as Thernstrom concede that whites, especially in the South, seldom vote for black candidates. But for Thernstrom et al, black candidates do not lose among white voters because of racial animus, but because they are too liberal for most whites. These outcomes are policy quarrels, largely devoid of invidious racial meaning.

Yet in jurisdictions covered by the Voting Rights Act, the increases in black and minority office-holding in local and state legislatures and in Congress have depended on federal intervention. Two landmark studies, Quiet Revolution in the South, edited by Bernard Grofman and Chandler Davidson (1994), and J. Morgan Kousser's Colorblind Injustice (1999), have shown this unambiguously. Thernstrom's idea that minorities, absent federal intervention, would have gained office at anything like the same rate is pure fancy.

As Thomas Pettigrew, the sociologist, has put it in an oft-quoted passage, "If a black is running against a white, you look at survey data and you take the white 'don't know' vote and simply add it to the white candidate's total. Ten times out of ten that comes within a couple of percentage points of what happens." Verifying this estimate in an ingenious clinical experiment described in his recent book, Voting Hopes or Fears?, my colleague Keith Reeves empirically confirmed Pettigrew's educated guess.

So blacks do have some trouble gaining white support, and not just because there are policy disagreements. Again, this suggests that without the anti-vote dilution program of the past 30 years, there would be far fewer minorities in public office today.

Of course, there is more to the debate over the anti-vote dilution program. Many have noted a subtle problem with using the Voting Rights Act to get minorities into state legislatures and Congress: it seems to weaken the southern Democratic Party, as Carol Swain first pointed out some years ago. In order to have more minorities serving in the House, and thus to meet the requirements of the amended Section 2 of the Voting Rights Act, Democratic state legislatures armed with new, sophisticated software created ultra-gerrymandered districts in covered states. They did this in order to maximize black ability to elect black representatives, while doing minimal partisan damage to adjacent districts. Swain concluded, with some overstatement, that this process drained surrounding districts of minority voters. Implementing the Voting Rights Act "bleached" these districts, in other words. As Justice Scalia asked in 1995 during oral argument in a voting rights case, "Aren't the black community's interests better served if black voters are spread among many districts rather than concentrated in a few?"

In fact, the white South was well on the way to going heavily Republican with or without the creation of majority-minority seats. At most, the concentration of minority votes tipped a few additional seats into the Republican column. In addition, David Lublin, an American University political scientist, has performed a statistical analysis indicating that substantive representation of black interests "kicks in" when a district's voting-age population is around 40 percent black. In other words, "influence" districts of about 40 percent would have been good enough for black representation and even black office-holding, with less "bleaching" of surrounding districts. This finding should strengthen both the intellectual, political, and constitutional case for retaining race-sensitive districting.

Nonetheless, it remains the case that strong measures against vote dilution, including the deliberate creation of districts where blacks had a reasonable shot at winning election, were necessary to get minority politicians off to a running start. The representative from a congressional district which has a minority voting-age population below about 40 percent turns out to be more or less blind and deaf to minority policy interests.

It is certainly encouraging that minority office holders have been able to build multiracial coalitions, and to survive redistricting that deprived them of majority-minority districts. But this is entirely the fruit of the Voting Rights Act and the racially conscious districting that allowed them to attain office in the first place. We aren't going to get such politicians, however, without majority-minority districting in some form. Without it, there is less chance that we will see minorities at the legislative table, and out and about, working their districts, building multiracial cooperation.

In sum, the "regulatory excess" view of federal voting rights policies is a gross exaggeration. The "bleaching" argument is empirically much sounder, but it has been rather overblown. Majority-minority districting of congressional, state, and local districts builds social solidarity. It has, indeed, helped white voters in many congressional districts to trust minority office holders. There are alternatives to it, such as cumulative voting and proportional representation, and in principle they are attractive. But if campaign finance reform, a major issue, cannot make progress, it strains credulity to think that we will ever see a full-scale shift to electoral structures that voters would regard as genuinely foreign.

Back to Which Future?

Emerging trust in minority office-holding gets to the bottom-line issue: What kind of political future do we want? One future we might go back to is something like the gradual diminution of minority office-holding that happened in the 1880s and 1890s. The other future toward which we can go back is the rich experiment in representation and office-holding which this country pioneered during Reconstruction.

From 1867 to 1877 about 2000 blacks served as federal, state, and local office holders in the ex-Confederate states subject to congressional Reconstruction. They were almost all strongly Republican in their policy views, and concentrated in the Deep South states with majority black or significantly black populations: South Carolina, Mississippi, Louisiana, North Carolina, Alabama, and Georgia, in that order. Between 1868 and 1876 an average of 268 black men served during the legislative sessions of the state legislatures in 10 southern states.

The standard picture of Reconstruction, of course, is that it was a time of corruption and incompetence. In fact, minority office-holding meant good government—it meant public education systems that the South never had, America's first civil rights laws, and fair criminal justice as blacks sat on juries for the first time. In South Carolina there was a very brief period of decently administered, state-sponsored homesteading and land reform for black families. In the city of New Orleans minority office-holding meant the first genuinely integrated school system in America (and, unhappily, the last such system for a century). In several states, the legislatures also supported nascent trade unions and labor movements of, for instance, stevedores and rice pickers.

As it happens, we do not face an all-or-nothing decision of the kind imagined in rumors of disenfranchisement. A reversal of voting rights gains would be gradual and incremental. But rather than passively waiting to see what comes, we ought to positively renew our national commitment to the practices that once made America a pioneer in democratic possibility. We should keep working toward giving the 15th Amendment all of the meaning its framers wanted for it. With the civil rights laws of the 1960s we redeemed the Civil War amendments of the 1860s. But there is still work to do to make history rhyme the right way.

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