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The American Civil Liberties Union

A Public Policy Alert from the American Civil Liberties Union (May 1995)


INTRODUCTION

 

As Reconstruction drew to a close more than 100 years ago, the several hundred African Americans elected to serve in Southern state legislatures and in Congress had dwindled to a handful, and the enactment and enforcement of a range of discriminatory laws that excluded black people from the mainstream of life -- the system known as "Jim Crow" -- had become pervasive.

Reversing this pattern of exclusion has taken most of the 20th century. In the present decade alone, thanks to districting changes made after the 1990 census, progress has been astonishing. Today, Congress has a critical mass of 40 black members who comprise the influential Congressional Black Caucus, and nearly 5,000 African Americans hold elective office across the South.

This sea change is the direct result of the Voting Rights Act of 1965, probably the most effective civil rights law ever enacted. The Act immediately outlawed the worst Jim Crow laws, such as literacy tests and other devices that kept African Americans out of the voting booth. Through active federal enforcement and the persistent efforts of civil rights groups, including the ACLU, the Act has begun to meaningfully empower racial minorities. And gradually, through court decisions and Congressional amendments, it has become a weapon against the more subtle schemes that have rendered minority votes all but meaningless.

The most common of these schemes is the at-large election, which effectively drowns the will of minority voters in a sea of white majority voices. When, as has usually been the case, the white majority votes as a racial bloc that is hostile to all minority candidates, none of the latter can be elected. To counter that situation, the Voting Rights Act has been used to compel the creation of multiple districts within a jurisdiction, with minorities being the majority of voters in some of those districts. It is these predominantly minority districts that almost exclusively elect minorities to office.The right to choose one's representatives in the voting booth is the linchpin of a free society, without which it is often impossible to exercise other rights. But just as the doors to the halls of government have begun to open, whites across the South, abetted by the United States Supreme Court, are rushing to close them again. If they succeed, this century will end as it began: with the demise of a second "Reconstruction," and a return to the days of all-white government.

The tide shifted ominously in 1993 when the Supreme Court, on the last day of its term, delivered a decision in the case of Shaw v. Reno that enabled white voters to challenge the "bizarre" shape of a majority/black Congressional district in North Carolina -- even though oddly shaped districts have long been tolerated in nonracial cases (see page 23). The decision was narrow, legally speaking, but devastating in its implications. White voters and judges have seized upon Shaw as an invitation to question the propriety of all race-conscious districting, on every level of government. Suddenly, the Voting Rights Act and its mandate to create equal opportunity at the ballot box face the most serious challenge since 1965.

In this 30th anniversary year of the Voting Rights Act, the nation stands at a crossroads. Two critical cases are jointly before the Supreme Court, both of which challenge predominantly minority Congressional districts, in Georgia and in Louisiana. The Court's decisions in these cases will go a long way toward determining whether the country turns back the clock and disfranchises a whole segment of society once again, or reaffirms and strengthens its commitment to building a truly representative democracy, with liberty and justice for all.


 

In the 19th Century, during the early days of Reconstruction, Congress passed two amendments to the Constitution: the Fourteenth, which guaranteed African Americans equal rights under the law, and the Fifteenth, granting black men the right to vote. During that era, 22 African Americans were elected to Congress, including two Senators from Mississippi. More than 700 served in Southern state legislatures, with some Southern states being nominally under black control.

Unfortunately, whites found myriad ways to circumvent the Constitution's promise of equality in a determined effort to keep power out of black hands. With the complicity of the federal courts, the South rewrote its state constitutions to legitimate a host of Jim Crow laws and regulations designed to keep blacks out of the voting booth and out of government. These included literacy tests imposed on blacks who had never had access to education; poll taxes and grandfather clauses; political gerrymandering, and the requirement that a prospective voter present vouchers from two already registered voters. Intimidation and violence reigned, directed against any black man who tried to register himself or others.

This display of racist ingenuity was a source of pride to South Carolina's infamous Senator "Pitchfork" Ben Tillman, who led one of the bloodiest campaigns against black enfranchisement. Said Tillman: "We have done our level best. We have scratched our heads to find out how we could eliminate every last one of them. We stuffed ballot boxes. We shot them. We are not ashamed of it."

By 1902, white officials had effectively subverted the Fourteenth and Fifteenth Amendments, with the courts' approval. Virtually no black elected officials were left, and so the South largely remained until the advent of the civil rights movement. In 1964, Congress passed the Civil Rights Act, but voting discrimination continued. Finally, public outrage over the suppression of nonviolent civil rights protesters precipitated passage of the Voting Rights Act of 1965.

The new law was designed to enforce the Fifteenth Amendment. In one stroke, Section 4 of the Act abolished literacy tests and all other such devices used to discriminate against minority voters. Section 5, the so-called heart of the Act, mandated that any change in election law -- including something as small as moving a polling place -- must be precleared, either through the U.S. Justice Department or through the federal district court in the District of Columbia, to ensure that the change did not abridge minority voting rights. Preclearance applied specifically to jurisdictions that had previously used a literacy test or the like, and where less than half of the voting age residents were registered or had voted.

The number of black registered voters shot up immediately after passage of the Act and continued to rise in subsequent decades. The most dramatic changes occurred in Mississippi, the state with the largest black population and one of the worst records of racial bias. There, black registration rose from 6.7 percent in 1964 to 70.8 percent by 1986.

But although the most blatant obstacles to minority enfranchisement were removed, more insidious obstacles remained. Even when African Americans could register, vote and have their votes fairly tallied, their group voting strength was so diluted by racial gerrymandering and obstructive election schemes that it was virtually meaningless.

The at-large election was one of the most common and effective means of diluting the black vote. Unlike single member district voting, where each district within a given jurisdiction elects its own representative, at-large systems allow all voters to vote for all candidates. Lumping minority voters with a hostile white majority virtually ensures the triumph of candidates chosen by the white majority and the defeat of candidates favored by minority voters. While minority voters have repeatedly demonstrated, across the country, their willingness to support white candidates, whites have just as commonly demonstrated a tendency not to support minority candidates. As a result, to this day it is predominantly minority districts, in which minorities make up more than half the population, that elect minority candidates.

In 1973, the Supreme Court ruled in White v. Regester that at-large election schemes were unconstitutional, if such schemes diluted minority voting strength, and mandated the creation of at least some minority-controlled election districts. With that decision in hand, the ACLU and other civil rights groups began the hard work of challenging the at-large systems in place on every level of government throughout the South. Two years into that process, Congress amended the Voting Rights Act to extend protection to foreign language minorities, including Latinos, Native Americans, Asian Americans and Alaska Natives.

However, the Supreme Court soon dealt a substantial blow to minority voting rights. In 1980, the Court brought progress to a screeching halt when it ruled in City of Mobile v. Bolden that black voters challenging the at-large election of officers to the Mobile, Alabama City Commission had to show not only that their voting strength was being diluted, but that the system had a racially discriminatory purpose. Proving intent is always difficult, if not impossible. The origins of longstanding practices may be shrouded in the past, while legislators have become savvy in masking their true motives for adopting certain recent practices. Judges, in any event, are reluctant to label public officials racist.

The Bolden decision would have been a complete disaster, but when key sections of the Voting Rights Act came up for renewal in 1982 the civil rights community asked Congress to redress Bolden by amending Section 2 of the Act to outlaw any plan that resulted in vote dilution -- whether intentional or not, and no matter when or where that plan was established.

The Reagan Administration and its allies in Congress bitterly opposed these amendments, claiming that they would impose a quota system for voting and "pit race against race." But Congress found that, in fact, the "effects" test established in White v. Regester had a reassuring track record that belied all predictions of doom. According to a Senate subcommittee, calling minority-controlled districts the cause of, rather than a response to, racial polarization was "like saying that it is the doctor's thermometer which causes high fever." Congress passed the amendments by an overwhelming majority.

The impact was extraordinary. After 1982, hundreds of Southern cities, counties and towns switched from at-large systems to district voting, many compelled by lawsuits or by the Justice Department, others in anticipation of such compulsion. Predominantly minority districts were, thus, created.

Minority office holding increased dramatically. In Georgia, for example, vote dilution suits were filed against 40 cities and 57 counties between 1974 and 1990. Almost all were successful. In Alabama, between 1970 and 1989, 42 of the 48 cities with populations over 6,000 switched to district elections.

Change was accelerated by the Congressional redistricting that followed the 1990 census (the census is taken every ten years). Nationwide, the number of majority black and Latino districts went from 29 to 52. New predominantly minority districts were created in nine Southern states, and each elected a black representative -- which increased the Southern black delegation from five to 17. The Congressional Black Caucus, now 40 members strong, had become a force to reckon with.

In 30 years, the Voting Rights Act had altered the face of American government. In 1965, the South had only 72 African American elected officials; by 1976, there were 1,944. Today there are nearly 5,000 -- 68 times as many as when the Voting Rights Act was passed. A study published in 1994, the most comprehensive and systematic to date on the impact of the Voting Rights Act, calls the change a "quiet revolution."

Then, on the last day of its 1993 term, the Supreme Court lowered the boom with its decision in Shaw v. Reno, which called into question the constitutionality of remedial race-conscious districting. For the voting rights movement, it was like a train wreck at high speed.


SHAW V. RENO

Since 1901, not a single African American had been elected to Congress from North Carolina. But after the 1990 census, in response to pressure from the U.S. Justice Department the state created two majority/black districts to comply with the Voting Rights Act. Both of these districts went on to elect black representatives in 1992, Eva Clayton in the 1st and Mel Watt in the 12th.

Watt's district follows Interstate 85 for 160 miles. Its snake-like shape, not much wider than the highway, was influenced by the desire to connect cities with substantial black populations and by the desire to protect incumbency. Five white voters went to court, charging that the 12th's odd shape violated the Fourteenth Amendment. The plaintiffs filed suit not as injured parties who had been victimized by discrimination, but as spoilers.

A three-judge panel of the U.S. District Court rejected their claim, but on appeal the plaintiffs garnered support from a deeply divided Supreme Court. Justice Sandra Day O'Connor, writing for the majority, called the 12th district "so bizarre on its face that it is `unexplainable on grounds other than race'.... It is unsettling how closely the North Carolina plan resembles the most egregious racial gerrymanders of the past." Moreover, the plan "bears an uncomfortable resemblance to political apartheid." Still, O'Connor said the district would be constitutional if it furthered a compelling state interest and was narrowly drawn, leaving that determination up to the district court. In legal terms, the decision was narrow. But O'Connor's language had the effect of opening the door to a wholesale attack on 30 years of progress toward equal voting rights.

For the Court to call the North Carolina plan "apartheid" was semantically, historically and politically inaccurate, if not outrageous. No Justice had ever used the word "apartheid" to describe even the most extreme efforts to disfranchise black voters. Yet apartheid, which is the total exclusion of one racial group from participation in government and the total domination of one racial group by another, would better describe the system that existed in North Carolina before 1992, when all districts were all-white and no blacks had been elected to Congress in almost a century.

In contrast, the new districts are designed to include everyone, equally, in the democratic process. Whites still enjoy more than their fair share of representation: While blacks constitute 22 percent of North Carolina's population, only 2 of 12 districts -- 17 percent -- are predominantly minority. In addition, the 12th district is less segregated, at 57 percent black and 43 percent white, than any Congressional district previously drawn in the state. To call it segregated, while calling a district with the numbers reversed integrated, defies logic.

The racial gerrymandering charge is similarly specious. Districting has always been politically driven. Districts are drawn to reflect a community of shared values, to consolidate various kinds of support or to protect an incumbent. And Congress and the courts have explicitly required the creation of majority/black districts to remedy the effects of longstanding discriminatory exclusion.

"If it is permissible to draw boundaries to provide adequate representation for rural voters, for union members, for Hasidic Jews, for Polish Americans, or for Republicans," wrote Justice Stevens in dissent, "it necessarily follows that it is permissible to do the same thing for members of the very minority group whose history in the United States gave birth to the Equal Protection Clause.... A contrary conclusion could only be described as perverse."

Shaw also created a new and subjective cause of action based on district shape. Countless oddly shaped districts exist across the country. For example, one fishhook-shaped district in North Carolina was drawn decades ago to protect a white incumbent's turf. The courts have never had any problem with such irregular borders. Wrote Justice White in his dissent in Shaw, "[a] regularly shaped district can just as effectively effectuate racially discriminatory gerrymandering as an odd-shaped one. By focusing on looks rather than impact, the majority immediately casts attention in the wrong direction -- toward superficialities of shape and size, rather than toward the political realities of district composition."

In August 1994, the district court panel, reviewing the North Carolina districting plan under the new standard established by Shaw, upheld it as constitutional. That decision has been appealed back to the Supreme Court.

Meanwhile, opponents of voting rights are questioning the propriety of all remedial race-conscious districting. Predominantly minority Congressional districts in Florida, Georgia, Louisiana and Texas are now being challenged, and state and local governments around the country are under siege as well. Many of these cases bear little resemblance to the facts in North Carolina. In Cincinnati, for example, a city where there are no predominantly minority districts, a judge cited Shaw in upholding an at-large election system. Several federal courts have struck down oddly shaped, predominantly minority districts while upholding the equally odd, white districts next door that were drawn to protect incumbents.

Since Shaw, the Supreme Court has continued to chip away at voting rights, handing down two more damaging decisions at the end of its 1994 term. In Holder v. Hall, the Court upset an ACLU lower court victory by upholding the single commissioner form of government in Bleckley County, Georgia -- despite solid proof of minority vote dilution. The Court even noted that "the District Judge stated that, having run for public office himself, he `wouldn't run if [he] were black in Bleckley County.'" On the same day, the Court ruled against minorities in a Florida redistricting case. In Johnson v. DeGrandy, the Court rejected a Section 2 challenge, despite continuing discrimination and white bloc voting on the ground that the number of predominantly minority districts was "roughly proportional" to minorities' share in the population.

More frightening than the Johnson decision was the position staked out by Justices Thomas and Scalia, who argued that Section 2 applied only to vote denial, not to vote dilution -- a position that flew in the face of established precedent and the legislative history of the Voting Rights Act. Three times, in his dissent, Justice Stevens called their view "radical." If adopted, it would amount to virtual repeal of Section 2 and would threaten to erase most of the gains made in minority office holding.

Against this backdrop, the two suits before the Supreme Court this term are potentially explosive. Both challenge majority/black Congressional districts created in Georgia and Louisiana after the 1990 reapportionment, and since Shaw was based on the Fourteenth Amendment, not on the Voting Rights Act, Congress will not be able to step in and repair the damage as it was able to do with the Bolden disaster of 1982. This time, the Court will have the final word, and if it continues on its present course the result could be catastrophic.


 

The two Shaw copycat suits before the Supreme Court hold the key to the future of voting rights. Each challenges predominantly minority Congressional districts created following the 1990 census.

Miller v. Johnson. This suit targets Georgia's 11th district, represented by Cynthia McKinney, the first African American woman sent to Congress from Georgia. She is a prominent member of the influential Congressional Black Caucus, which supports adoption of a fair reapportionment plan.

Georgia officials agreed on a plan that would have increased the number of predominantly minority Congressional districts from one to two. But when the Justice Department objected to the plan, the state responded by creating three such districts, including the 11th.

After McKinney's election, the losing candidate led a small group of white voters in challenging the districting plan. Invoking Shaw, the plaintiffs claimed that the 11th district was unconstitutional because its "bizarre" shape could only be explained "as an expression of racial gerrymandering." But the district court found that, in redistricting, the legislature "contended with numerous factors -- racial, political, economic, and personal." In other words, the state plan "reflected many influences." In fact, the 11th district is no more strangely shaped than other districts drawn in Georgia. Moreover, 83 percent of its territory consists of whole counties -- much higher than the average.

Like everywhere else, the designs of all of Georgia's districts are, in large part, political. The 11th, for example, has an irregular border at one point, not to include more blacks but because the chair of the Senate reapportionment committee wanted to make sure his son's precinct was included. The 9th district, which is 95 percent white, was designed to bring together a distinctive Caucasian community in the state's northern mountains. Because the Democratic Speaker of the Georgia House did not want to be represented by Republican Newt Gingrich, his entire county was drawn out of that district, with other counties being split as a result.

The Speaker himself had this to say about redistricting: "There's hundreds of issues because there are hundreds of people wanting their property and their county in a different district." To single out and challenge only those districts drawn to consolidate minority votes, in compliance with the Voting Rights Act, is particularly indefensible given Georgia's long history of disfranchising black voters. Indeed, racial discrimination is so well documented in the state that the court in Johnson said it did not even need to hear evidence about it.

To remedy that history, vote dilution suits were filed against 40 cities and 57 counties in Georgia between 1974 and 1990. Almost all were successful, and every one of the remedial redistricting plans adopted was race-conscious. As the state's Chief Demographer said, "[i]f taking race into account were unlawful ... there is not a redistricting plan in the State of Georgia that would be valid." The predominantly minority districts have been overwhelmingly responsible for electing African Americans to state office -- only one of the 40 black members of the Georgia general assembly was elected from a majority/white district.

The three-judge panel found in Johnson that no one was harmed in any way by the new districts, but it still struck down the plan as unconstitutional. The ACLU and the NAACP Legal Defense and Educational Fund, Inc. (LDF), representing a group of black and white voters in appealing to the Supreme Court, won a stay allowing the 1994 elections to proceed. McKinney was re-elected but will likely lose her seat if the ACLU loses this suit.

Louisiana v. Hays. Louisiana's population is 30 percent black. Yet it was not until 1990 that the first African American since Reconstruction was elected by the state's first predominantly minority district. Two years later, after the Congressional reapportionment, a second predominantly minority district was created and a second black, Rep. Cleo Fields, was elected.

Forty percent of Fields' constituents in the new 4th district live in poverty. Previously, they were represented by white Republicans or by white "boll weevil" Democrats who voted against the Civil Rights Act of 1991 and opposed increasing the minimum wage. One of Fields' first proposals in office was to regulate the fees charged by check-cashing outlets, whose customers have no choice but to patronize such outlets because they are too poor to maintain bank accounts.

Typically, Louisiana's predominantly minority districts are the most diverse and integrated districts in the state. But a group of four voters challenged the redistricting plan and won in district court. The three-judge panel, declaring that "race-conscious redistricting ... is always subject to strict scrutiny," issued its own map for the 1994 elections that contained only one predominantly minority district, and that spread the rest of the minority population over six districts.

The decision was appealed to the Supreme Court, which granted a stay that allowed the elections to proceed under the old map. Fields was re-elected. If Hays is upheld, the constitutionality of all the Congressional districting plans -- and almost all the state and local plans -- currently in place throughout the South would be in question.

These two cases will be decided together. An adverse ruling could cement the direction the Court charted in Shaw and reverse the flow of minorities into elected office.


RACE-CONSCIOUS DISTRICTING: WHY IT'S NEEDED, WHY IT WORKS

 

In a perfect world, remedial race-conscious districting would not be necessary. We would all prefer to live in the color-blind society hypothesized by Justice O'Connor in Shaw, but that is simply not reality. To claim otherwise willfully disregards the fact that race has always mattered in this society. Up until the middle of this century, African Americans were locked out of the political process and rendered second-class citizens solely because of their color. While literacy tests and poll taxes may have passed into history, at-large election schemes, racial polarization and bloc voting remain facts of life. And race-based problems require race-based solutions.

Like all such remedies for past discrimination, race-conscious districting has always been controversial. Critics, including some people of color, charge that it promotes racial polarization, reinforces stereotypes and confers special status on minorities. These charges do not stand up to scrutiny. The reality is that race-conscious districting works and is the single most effective means of remediating the terrible legacy of discrimination against minorities. Districts with predominantly minority populations increase minority voter participation, lead to the election of minority officials and force government to pay attention to the needs of previously ignored communities.

But minorities are not the only beneficiaries of such districts. In the long run, this remedial strategy has been shown to break down racial boundaries, foster diversity in government, benefit communities of all colors and strengthen our democracy. The bottom line is that, without these districts, the nation would beat a hasty retreat back to the days of all-white government.

Districting is political. Districting is political, by its very nature. As the Supreme Court said in a 1973 decision, "[t]he reality is that districting has and is intended to have substantial political consequences." Districts have always been drawn to consolidate communities of shared values or heritage -- such as communities of Irish or Polish Americans -- to protect incumbents' territory, or to accommodate the personal needs of the legislators who do the districting.

In the South, districts were a direct product of Jim Crow laws and racial gerrymandering. If the Voting Rights Act did not compel the creation of predominantly minority districts, white incumbent legislators would simply continue to manipulate district lines to maintain their power base and keep minorities out.

Predominantly minority districts that are oddly shaped -- often reflecting the irregularities of city boundaries -- are in keeping with, not divergent from, tradition. Historically, the courts have approved all kinds of districts that were drawn in odd shapes for partisan reasons. Thus, to call predominantly minority districts "apartheid," as the Supreme Court did in Shaw, while accepting without question districts drawn to accommodate, say, Irish or Polish Americans, is to apply a discriminatory double standard in redistricting.

The challenged districting plans have no victims. One of the primary criticisms of the race-conscious remedies mandated under the Voting Rights Act is that they violate the rights of white voters. But the plaintiffs in Shaw and subsequent cases did not allege that the remedies violated their personal rights in any way. Instead, they claimed an abstract injury of being "stigmatized" by the fact that whites do not have a right to vote in majority/white districts, and to elect white representatives.

In a 1977 decision, the Supreme Court said that as long as whites "as a group, [are] provided with fair representation, we cannot conclude that there was a cognizable discrimination against whites or an abridgement of their right to vote." And representation has always been more than fair: Whites make up 70 percent of the population nationwide but dominate 83 percent of the Congressional districts. Congress is just over 7 percent black while the general population is 12 percent black. Where is the discrimination against whites?

Another common criticism is that predominantly minority districts are counter-productive because they consolidate and reinforce white, conservative voting strength in other districts. Southern Republicans have at times supported redistricting for that very reason. Most recently, the 1990 Congressional reapportionment has been blamed (or credited, depending on one's perspective) for the Republican sweep in 1994. But the statistics prove otherwise.

For one thing, districts did not change between 1992, when Democrats gained a 41-seat majority, and 1994 when they lost it. Second, in the nine states that drew new predominantly minority districts after the 1990 census, Democrats lost 19 percent of their seats in '94; in the 41 other states, they lost 21 percent. Even if the Democrats had retained every one of their House seats in those nine states -- completely bucking the national trend -- the Republicans would still have gained control of the House. What is true is that as blacks have started to play a more active role in the political process, and specifically in the Democratic Party, whites have responded by defecting to the Republican side. That development cannot, however, be a reason to abandon remedial efforts to achieve equal opportunity in voting.

Finally, there is no evidence that race-conscious districting fosters racial polarization. On the contrary, it fosters the gradual breakdown of racial barriers -- in voting and in society. For cross-racial coalitions to develop within government, there must first be minority officials. And the creation of an environment in which minorities can be elected will ultimately encourage the formation of cross-racial coalitions outside of government as well.

There are numerous examples of such change in the making. To name just one: When a new black district was created in the Mississippi Delta, Mike Espy became the first African American elected to Congress from that state since Reconstruction. In the 1986 election, he got 10 percent of the white vote and 52 percent overall. In 1988, he won re-election with 40 percent of the white vote and 66 percent overall. This record of minority achievement bodes well for the future, notwithstanding Mr. Espy's current troubles.

Nonetheless, it will be a long time before color barriers come tumbling down. Our nation is still taking only the first steps toward integrating government, and remedial race-conscious districting mandated by the Voting Rights Act is still an indispensable tool for dismantling the structures of discrimination.

A race-based solution to a race-based problem. At this point, predominantly minority districts are virtually the only ones that elect minority representatives, owing to the general disinclination of whites to support minority candidates. Of the 17 African Americans elected to Congress from the South in 1992 and 1994, all represent predominantly minority districts. Only two blacks have ever been elected from Southern majority/white districts, and three elsewhere in the country. The same pattern holds true in state legislatures in the South, where some 90 percent of African Americans elected during the 1980s came from majority/black districts.

That is not to say that predominantly minority districts guarantee the election of minorities. In Georgia, for example, in the 1992 House and Senate elections such districts chose white candidates to represent them by 25.9 percent. The point is that, historically, white elected officials have often betrayed the interests of minorities and some have been the architects of virulent forms of official discrimination. Justice O'Connor once wrote, "[t]he exclusion of minorities from government not only promotes ignorance of minority problems ... but also creates mistrust and alienation, and all too often, hostility toward the entire process of government."

No completely accurate measure is available to assess the impact of empowering minorities in the electoral process, and of having committed minority advocates in office. But evidence does exist to show that while minority voting strength most directly benefits minority communities, all Americans benefit from the diversity that predominantly minority districts produce.

The "Profiles" at the end of this report testify dramatically to the productive potential of minority electoral empowerment. Keysville, Georgia; Edgefield County, South Carolina, and Georgia's 11th Congressional district, in which minority officials were elected, all exemplify the profound changes and benefits that predominantly minority districting can bring to both black and white communities -- street lights, water supplies, municipal employment, fire protection, health care and better schools. And all these areas have seen the development of meaningful communication between whites and blacks, where before there was distance, suspicion and hostility.

Further evidence of positive results comes from academic studies. One study of 10 California cities found that the mere presence of minority council members tended to break down polarization and racial stereotyping, and has "increased minority access to councils and changed decisionmaking processes." The report also stated that minority political participation was "associated with important changes in urban policy," including the creation of police review boards, the appointment of more minorities to commissions, more jobs for minority contractors, and a general increase in the number of programs oriented to minorities. Studies in at least four other states, cited in the Vanderbilt Law Review, came up with similar results.

Increased minority voter influence has also had a positive impact on the voting patterns of white officials. In 1975, for the first time since Reconstruction, a majority of the white southern members of Congress voted for a major civil rights bill when they supported amendments to the Voting Rights Act. That pattern has continued. For example, three Southern senators who owed their election in large part to black voters were instrumental in defeating Robert Bork's nomination to the Supreme Court.

Other remedies. While controversy has raged over race-conscious districting in the wake of Shaw, alternative remedies have also received some recent attention -- particularly after Lani Guinier's nomination for U.S. Attorney General was derailed as a result of her writings on the subject.

One discrimination remedy explored by Guinier is the cumulative system, whereby voters are allowed a fixed number of votes that they can choose to either give to one candidate or distribute among several candidates. Another proposed remedy is limited voting, whereby each voter is allowed to vote for, say, 3 out of 5 candidates. Both of these proposals are intended to foster the pooling of minority votes behind a single candidate and might prove useful in certain circumstances, such as in local elections where the minority population is so dispersed that it cannot be consolidated in a single district. However, an act of Congress would be required to permit the use of cumulative systems in Congressional elections.

One very successful new tool now being used to remediate discrimination is the National Voter Registration Act -- the so-called "Motor Voter" law -- which requires states to allow voter registration at motor vehicle bureaus, welfare offices and other government agencies, and by mail. At the time the Act was passed, an incredible 37 percent of eligible U.S. citizens -- more than 70 million people -- was unregistered, two-thirds of that group in low income households.

Since the law took effect on January 1, 1995, after an intensive lobbying effort by the ACLU and other civil rights groups, registration rates have soared. In Kentucky, for example, 10,000 voters registered in 10 days, as compared to 55,000 throughout 1994. In Georgia, where 85,000 people registered in all of 1994, more than 128,000 had registered by mid-March.

Unfortunately, considerable resistance to voting reform of all kinds is prevalent not only in the South, but throughout the country: 11 states have refused to comply with the "Motor Voter" law, and lawsuits have been filed by the Justice Department and ACLU voting rights advocates in those states. Six bills calling for repeal or suspension of the law are before Congress.


Conclusion

 

The Voting Rights Act is arguably the single most successful civil rights law ever enacted. After three decades of enforcement, it has begun to give minority populations a voice in government that can be heard in towns, counties and states across the nation, and in the halls of Congress. Partly due to this record of success, a growing chorus claims that the law has outlived its usefulness, that race-conscious voting remedies are anachronistic.

In truth, however, such remedies are needed now more than ever. The tremendous progress made to date would never have happened if a Voting Rights Act had not existed that could be used by the federal government, and by groups like the ACLU and the NAACP/LDF, to compel change. And, as Shaw and its offspring demonstrate all too clearly, progress is extremely fragile. If the legal scaffolding that supports that progress were suddenly to be dismantled, all gains would be lost.

The color-blind society hypothesized in Shaw is still a distant dream. The reality is racial bloc voting, which means not only that minorities vote for minorities and whites for whites, but, more significantly, that whites vote against minorities. Minority populations exceeding 50 percent are still necessary if those populations are to have any real chance of choosing their representatives.

Equal representation for minorities also remains a distant dream. Even with a record-size Congressional Black Caucus, the proportion of African Americans in Congress still falls well below the nation's 12 percent black population. The numbers are even worse in Southern states. In Georgia, for example, blacks make up 25 percent of the voting age population, but only 7.6 percent of elected officials. At-large elections and other vote dilution mechanisms still abound, especially in small Southern towns that were largely untouched by the civil rights movement. The rights of other minority groups, such as Native Americans, are just beginning to be recognized, thanks in large part to efforts by the ACLU and other advocates.

One entire realm of government -- the judicial system -- has only recently begun to feel the reforms made possible by the Voting Rights Act. Opponents of voting reform have argued that judges should be exempt from the Act's provisions because judges are not meant to represent the population. In 1991, the Supreme Court declared that the Voting Rights Act does apply to the judiciary, and change is finally underway. However, some federal courts have dismissed voting rights challenges to judicial electoral methods, despite evidence of minority vote dilution, on the ground that the state had a preclusive interest in maintaining its existing system. This area of the law remains unsettled.

Discrimination persists on other levels, around the country: In New Jersey, for example, not once but twice during the 1980s the Republican National Committee was charged with targeting African American precincts specifically with a direct mail campaign that challenged the qualification of black voters. In North Carolina in 1990, the Republican Party sought to intimidate black voters by sending them a mailing that contained false information about voter residency requirements and alleged criminal penalties for violating those requirements. And in Hartford, Connecticut, a city rule that disqualifies voters who fail to report changes of address has led to the purging of predominately black and Latino voters from the voting rolls.

On this 30th anniversary of the Voting Rights Act, we celebrate the giant strides taken toward the goal of equal opportunity in the electoral process. At the same time, we call upon the nation to sustain its vigorous pursuit of that goal. Voting is among the most fundamental of rights in a democracy. Without a meaningful vote, there can be no equality before the law, no equal access, no equal opportunity. And without an intact Voting Rights Act, the threatened return to all-white government will dangerously polarize our society.

At this moment, the nine justices of the U.S. Supreme Court are charged with a grave responsibility. In the months ahead, they can either preserve the Voting Rights Act or gut it. In the words of Rep. Cynthia McKinney, "[t]his is a turning point in America's history. We can either move forward, together, or we can move back, divided."


Glossary

 

At-large Election -- All voters in a political jurisdiction may vote for candidates for all offices.

Cumulative Voting -- Each voter may vote as many times as there are seats to be filled, and the voter may either give all of his/her votes to one candidate, or distribute them among several candidates.

Limited Voting -- Each voter has fewer votes than the number of seats to be filled.

Predominantly Minority District -- Technically called a majority/minority district. An election district in which a majority of the persons included within the district belong to a particular racial or other minority group.

Preclearance -- A determination by the Attorney General of the United States, or by the Federal District Court in the District of Columbia, that a jurisdiction's proposed voting changes will be non-discriminatory. Jurisdictions covered by Section 5 of the Voting Rights Act are required to preclear planned changes in their voting procedures -- that is, demonstrate, prior to implementation, that the changes do not have the purpose or the effect of discriminating against protected racial or language minorities.

Single Member District Voting -- When a political jurisdiction has been divided into several election districts, voters in each of the created districts may elect a single candidate to represent them.

Vote Dilution -- The minimizing or cancelling out of the voting strength of racial and other minorities. Vote dilution may result from the use of at-large elections, districting plans and/or other electoral structures -- such as majority vote requirements, numbered post provisions or staggered terms.


Section 2 - Civil Rights Act

VOTING RIGHTS ACT OF 1965

Reaffirmation or Requiem for the Voting Rights Act?

Copyright 1996, The American Civil Liberties Union Section 2

A nationwide provision that prohibits the use of voting laws, practices or procedures that discriminate in either purpose or effect on the basis of race, color, or membership in a minority language group. All types of voting practices and procedures are covered by Section 2, including those relating to registration, voting, candidacy qualification, and types of election systems. Section 4

Sets forth the formula under which a political jurisdiction is "covered" by and, therefore, subject to the preclearance provisions of Section 5 of the Voting Rights Act.

Section 4 has various dates that trigger coverage, e.g., if a jurisdiction used a "test or device" such as a literacy test as of November 1, 1964 and less than 50 percent of the age eligible citizens were registered or voted in 1964, it became a covered jurisdiction. Section 4 further covers a jurisdiction if the jurisdiction provided English-Only voter registration/election materials, contained a registered voting age citizenry (or citizens actually voting) of less than 50 percent, and contained a single language minority group of greater than 5 percent of its citizens.

Covered jurisdictions include the entire States of Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia and counties and towns in California, Colorado, Connecticut, Florida, Hawaii, Idaho, Maine, Massachusetts, Michigan, New Hampshire, New York, North Carolina, South Dakota and Wyoming. Section 5

This section was designed to prevent states and other governmental entities with a history of voting discrimination from continuing to devise new ways to discriminate after the abolishment of prior discriminatory practices. Section 5 requires certain covered jurisdictions to submit any proposed voting changes in their election law or practices, prior to implementation, for federal approval by either the Attorney General of the United States or the Federal District Court for the District of Columbia. Covered jurisdictions must demonstrate that the proposed voting changes do not have the purpose or the effect of discriminating against protected racial or language minorities. This process is referred to as the preclearance process.

Minority Language Groups: The minority language groups covered by the Voting Rights Act are Native Americans, Asian Americans, Alaska Natives, and persons of Spanish heritage.

Minority Language Provisions: The Voting Rights Act was amended in 1975 and 1992 to include political jurisdictions with language minority groups and requires such jurisdictions to furnish bi-lingual assistance to language minority citizens at all stages of the voting process and in all elections.