South Carolina v. Katzenbach
Voting Rights Act of 1965
Danny Berliant
Chris Bailey
Sondra Furcajg
Warren Linam-Church
The Historical Tension Between
Disenfranchisement and the Right
to Vote
- Reconstruction and Enfranchisement
- Official Disenfranchisement
- Progressive Re-Enfranchisement
Reconstruction and Enfranchisement
• XVth Amendment
• 1870 Enforcement Act
• 1870-1873: 1,271 criminal prosecutions in the
South under the Enforcement Act
1876 US Supreme Court
decisions
• US v. Cruikshank: private interference
• US v. Reese: official interference
• A nullification of the Enforcement Act effects?
Power of Congress over federal
elections
• US Supreme Court 1884, Ex Parte Yarbrough
• Assertion of congress’ power
▫ election of federal officers
▫ protect citizen’s’ right to vote in federal elections
• Power of Congress includes protection against
private conduct
• Powerful tool given to Federal government for
protecting voting rights
Post-Reconstruction
• Domination of south by democratic party
• Withdrawal of federal government from the
protection of voting rights
• Black registered voters kept from voting:
violence, fraud, corruption, Jim Crow laws
• Black votes diluted: gerrymandering and
malapportionment
• Voting process made more difficult: eight box
law
Gerrymandering
Official disenfranchisement
• 1890 Mississippi Constitutional Convention:
“Mississippi solution”
• Mississippi Supreme Court 1896, Ratcliff v.
Beale: “By reason of its previous condition of
servitude (…), this race had acquired and
accentuated certain peculiarities of habit,
temperament, and of character (…) – a patient
docile people, but careless, (…), without
forethought (…)”
Mississippi solution
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Literacy and comprehension test
Poll taxes
Strict registration deadline
Grandfather clause
Property qualifications
Good character requirements
White primaries
Black voting rate dropped: from 50% to 5% in
Mississippi
Mississippi Solution (Continued)
• Congress: most Reconstruction Statutes
repealed in 1894: “Let every trace of
Reconstruction measures be wiped from the
statute books (…)”
• US Supreme Court Williams v. Mississippi 1898:
Federal Constitution allows states to take
advantage of the “alleged characteristics of the
negro race”
Progressive Re-Enfranchisement
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World War II, New Deal
Increase in black discontent and pressure
Change in composition of the US Supreme Court
1947 Report by President’s Civil Rights
Commission : “To secure these rights”
Change in US Supreme Court decisions
• 1941, US v. Classic: primaries are an integral
part of election process + extension Congress’
power over federal elections
• 1944, Smith v. Allwright: outlaws white
primaries
• 1949, Davis v. Schnell: outlaws state’s new
“understand and explain test”
Congress: 1st Civil Rights law since
1875
• 1957 Civil Rights Act: Attorney General can sue
anyone who violates person’s voting rights
• 1960 Civil Rights Act: creates federal voting
referees appointed by local federal district courts
• 1964 Civil Rights Act: alters state qualifications
for voters in federal elections
Katzenbach’s Revolution: Expansion
of Federal Power to Expand the
Franchise
- South Carolina v. Katzenbach
- State Coverage Formula
- Suspensions of Tests
- Federal Review of New Voting Eligibility Requirements
- Listing of Qualified Applicants by Appointed Federal Examiner
Steady Progression of Change
• Voting Rights Act of 1957
▫ Gave Attorney General the right to issue injunctions
against public and private entities on racial grounds
• Voting Rights Act of 1960
▫ Allowed joinder of states as parties in lawsuits
▫ Voting records had to be provided to opposing council
▫ Courts given ability to register voters in areas of
historic discrimination
• Voting Rights Act of 1964
▫ Outlawed particular tactics of discrimination
▫ Expedited hearing of voting cases before special three
judge panels
Voting Rights Act of 1965
• Consisted of four main
sections:
▫ Coverage Formula
▫ Suspension of all voting
eligibility tests
▫ Federal review of new rules
▫ Federal examiners
Coverage Formula
• The VRA created a two step test for determining
whether a State was subject to the new voting
provisions:
▫ AG determination that the State maintained a
“test or device” for voter eligibility
▫ Director of the Census determined that less than
50% of the State’s voting age residents were
registered or voted in the previous election
Suspension of Eligibility Tests
• Any State that fell under the
coverage formula was
temporarily barred from
enforcing eligibility tests
(literacy requirements,
property ownership, etc.)
Federal Review of New Rules
• All States falling under the coverage area must
submit any news rules to the District Court for
the District of Columbia for approval.
• (Note: Only issue that was not unanimously
approved by the U.S. Supreme Court)
Federal Voting Examiners
• AG appointed federal examiners
to oversee voter registration in
areas that:
– Have received at least 20
written complaints
– Examiners are necessary to
guarantee the protections of
the 15th Amendment.
• Federal examiners test voting
qualifications of applicants for
suspect States.
• Examiners submit list of eligible
voters to State authorities who
must then add those names to
their voting register.
South Carolina v. Katzenbach (1966)
• South Carolina was the first
state to fall under the VRA
coverage formula.
• U.S. Supreme Court granted
original jurisdiction due to the
social unrest across the nation
at that time.
• Katzenbach, a staunch civil
rights advocate and the
Attorney general, served as a
catalyst for both supporters
and opponents to civil rights
legislation.
South Carolina v. Katzenbach Contd.
• Katzenbach himself gave the oral argument
on behalf of the U.S. government.
• U.S. Supreme Court ruled unanimously
approving all provisions, except:
▫ Justice Black: Cases and Controversies
Interview with Katzenbach
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Legislation v. Litigation
Oral Argument in front of USSC
Significance of Voting Rights Act of 1965
Voting Discrimination Today
Modern Face of Voter
Discrimination: Right to Access
-Progression of Voting Rights Act
- Bush v. Gore
- Other Forms of Discrimination
- Obama v. McCain
-Department of Justice
Voting Rights Act of 1965
• Section 5 of Voting Rights Act - Preclearance
▫ Extended for 5 years in 1970
▫ Extended for 7 years in 1975
• Mobile v. Bolden 1980
▫ Need proof of racially discriminatory purpose
• 1982: Congress got rid of new heightened std.
▫ Only discriminatory impact required
▫ Extended Section 5 another 20 years
Types of Voting Discrimination Cases
• First Generation: Physical intimidation and
blatant disenfranchisement
▫ Mostly gone by 1980s
• Second Generation: Voter dilution
▫ Blatant but less violent
• Third Generation: Voter dilution
▫ Less blatant, better justifications
▫ Ex:Redistricting of minority districts
Bush v. Gore
• Jesse Jackson rallies do not get publicity
• Stories of racial discrimination
▫ Picture identification
▫ Sent on wild goose chase
Bush v. Gore Statistics
• African Americans made up 54% of votes not
counted
• Automatic machines rejected 14.4% of African
American votes and 1.6% of white votes
• Rejected African American precinct ballots twice
the rate as Latino precincts and four times the
rate as white precincts
Legal Ways of Exclusion
• Ex-felons not allowed to vote
• Voting is held on Tuesday
▫ Blue collar voters cannot get off work
Obama v. McCain
• Line waiting time
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68% of white voters waited 10 minutes or less
45% of black voters waited 10 minutes or less
5% of white voters waited an hour or longer
15% of black voters waited an hour or longer
Obama v. McCain
• Photo ID Requests
▫ ½ of white voters asked for photo identification
▫ 2/3 of black voters asked for photo identification
• African American Self-Discrimination??
▫ African American Poll workers asked 46% of
African Americans for ID and only 30% of whites
DOJ Enforcement
• Blocked racial discriminatory procedures in
Georgia this past summer
• Federal observers
▫ Make sure voting procedures are being done
properly
• DOJ educates states and localities on how to
conduct procedures without discriminating
Contemporary Face of Voter
Discrimination Litigation
-Northwest Austin Municipal Utility District
- Justice Roberts’ Opinion
- Justice Thomas’ Dissent
-U.S. v. Euclid City School Board
- Lulac of Texas v. Texas Democratic Party
- DOJ Attorney Scandal
Northwest Austin Municipal Utility
District Number One v. Holder
• Plaintiff – Small district that set utility rates for
the northern part of Travis County (Austin)
• The district tried to change how it elects the
board that sets the rates
• Because Texas is subject to Section 5 of the VRA,
the board had to get preclearance on any change
Northwest Austin Municipal Utility
District Number One v. Holder
Northwest Austin Municipal Utility
District Number One v. Holder
• The District has 2 arguments:
▫ That it is not a “political subdivision” as defined by
the VRA
▫ That Section 5 of the VRA is unconstitutional
Northwest Austin Municipal Utility
District Number One v. Holder
• Roberts opinion
▫ The District is a “political subdivision” as defined
by the VRA
▫ There is no reason to address the Constitutionality
of Section 5 of the VRA
Northwest Austin Municipal Utility
District Number One v. Holder
• Thomas Dissent
▫ Because the 2 different arguments offer 2 different
remedies, the Constitutional question must be
addressed
▫ Section 5 of the VRA is unconstitutional
Northwest Austin Municipal Utility
District Number One v. Holder
• Thomas dissent
▫ 15th Amendment: prohibits denying the ballot to
anyone based on “race, color, or previous
condition of servitude”
▫ 10th Amendment: the states retain all power not
delegated to the federal government
Northwest Austin Municipal Utility
District Number One v. Holder
• Thomas dissent
▫ 15th Amendment: prohibits denying the ballot to
anyone based on “race, color, or previous
condition of servitude”
▫ Section 5: any change must be cleared by the DOJ
 Even if is found to not discriminate based on “race,
color, or previous condition of servitude”
 Katzenbach ratified this expansion of the power of
the 15th amendment
Northwest Austin Municipal Utility
District Number One v. Holder
• Thomas dissent
▫ Katzenbach decision was justified due to the
extraordinary nature of the problem
 Violence
 Repeated attempts to circumvent federal voting laws
Northwest Austin Municipal Utility
District Number One v. Holder
• Thomas dissent
▫ The 2006 VRA was not passed with similar
findings by congress
▫ Congress acknowledged the primary motivations
do not exist anymore
▫ Congress justified the 2006 VRA because of
secondary concerns of discrimination
Northwest Austin Municipal Utility
District Number One v. Holder
Northwest Austin Municipal Utility
District Number One v. Holder
• Thomas dissent
▫ Secondary motivations are not instances of
purposeful discrimination
▫ Isolated incidents of discrimination are not
evidence of systematic discrimination
LULAC v. Texas Democratic Party
• In Texas, political parties run the primary
elections
• In 1996, the Supreme Court held that political
parties are subject to the VRA if they run
elections that are similar in scope to elections
that would otherwise be run by states
LULAC v. Texas Democratic Party
• In the 2008 primary election, the TDP had a
plan to assign delegates based on the vote for the
democratic gubernatorial candidate in the 2006
election
• White Districts received more delegates even
though Latino districts voted for the candidate
as a higher %
▫ Similar to the 2000 presidential election
DOJ Attorney Scandal
• The Bush administration pushed some attorneys
to pursue cases involving voter fraud
▫ Some of these cases were to pressure states to
remove voters from the voting rolls
• When attorneys refused, they were fired
DOJ Attorney Scandal
• The administration suggested the attorneys were
fired for poor performance
• A congressional investigation revealed that the
failure to pursue those cases was the primary
motivating factor
• It led to the resignation of Attorney General
Alberto Gonzales
DOJ Attorney Scandal
• Issues
▫ Is the VRA sufficient if the DOJ can be politicized
to this extent?
▫ Is this a reason to support the preclearance
provision?