Voting Rights and Racial Discrimination
Katzenbach v. South Carolina
By: Danny Berliant, Chris Bailey, Sondra Furcajg, & Warren Linam-Church
September 20, 2009
1
I.
Introduction
The Fifteenth Amendment of 1870 officially granted African-Americans suffrage. Yet, it was not
until a century later, with the 1965 Civil Rights Act, that universal suffrage became truly effective. Even
in the most recent elections, however, concerns were raised with regards to voting rights of AfricanAmericans. The significance of the 1965 Voting Rights Act lays in that it provided that States did not
have the final say in the voting process and that the federal government should hold the ultimate control.
The Katzenbach decision, in upholding the provisions of the Act, effectively gave the federal government
the ability to proactively combat voter discrimination. Despite the Katzenbach decision’s impact, the
United States is still today plagued with voter disenfranchisement.
II.
The Historical Tension between Disenfranchisement and the Right to Vote
Reconstruction and Enfranchisement
The post-Civil War period, also known as the Reconstruction era (1865-1877), was a time
during which the federal government controlled a lot of the Southern States. It was also the
period during which African-Americans were formally granted the right to vote.
By establishing a constitutional right of all United States (US) citizens to vote, the Fifteenth
Amendment to the US Constitution, which became effective on February 1870, formally
guarantees enfranchisement of African-American citizens nationwide. It prohibits each
government in the US from denying a citizen suffrage based on that citizen’s “race, color, or
previous condition of servitude” (i.e. slavery). The Amendment, which in one of the
Reconstruction Amendments, provides that Congress has power to enforce this right to vote by
2
appropriate legislation. As Justice Franckfurter stated, “The Fifteenth Amendment nullifies
sophisticated as well as simple-minded modes of discrimination.”1
The Enforcement Act of March 1870 was passed by Congress to enforce that
Amendment. The Act provided for civil and criminal penalties against people who, acting
privately or under color of the law, prevented qualified voters from casting their ballots.2 The
scope of the Act encompasses both public officials and private citizens who aim at depriving
citizens of suffrage.
The Act is comprised of three major parts. First, Section 1 guarantees the right to vote in
all national and state elections to all citizens regardless of race. Then, Sections two to six point
to several racially discriminatory practices as federal offenses and establishes that black and
white citizens must have equal opportunity to vote. Sections 19 to 22, the third main part of the
Act, establish the power of Congress over federal elections; it also outlaws registration and
voting frauds in federal elections.3
The 1871 Amendment to the Enforcement Act added its most significant characteristic by
providing for voting supervisors to examine voter lists, to challenge voters, and to physically
oversee the registration and voting process in federal elections.4 These federal officials are to be
appointed by a federal judge. This had a direct impact since the number of African-Americans
registered to vote grew quickly.5 Between 1870 and 1873, there was active enforcement of the
Enforcement Act. In the year 1873, there were 1,271 criminal prosecutions in the South under
1
Lane v. Wilson, 307 U.S. 268, 275 (1978).
Voting Rights Act of 1965, Duke Law Journal, Vol. 1966, No. 2 (Spring, 1966), pp. 463-483, at 463.
3
Armand Defner, Racial Discrimination and the Right to Vote, Vanderbilt L. Rev., Vol. 26, 1973, in Race, Law and
American History 1700-1990 – African-Americans and the Right to Vote, Vol. 6, ed. by Paul Finkelman, at 526 and
527.
4
Voting Rights Act of 1965, supra note 2, at 464.
5
Craig Haller, E Pluribus Pluribus: The Hijacking of the Voting Rights Act and the Resegregation of America, 39
Duquesne L. Rev. 619, Spring 2001, at 2.
2
3
the Reconstruction statutes and significant funds were allocated to the election supervisor
program under the 1871 Act (3,200,000 dollars).6
With regards to judicial interpretation of the Act, some authors consider the two
following decisions to have almost totally neutralized the crucial sections of the Enforcement
Act.7 Indeed, with these restrictive holdings taken under strict construction, for these were
considered to be criminal statutes, the US Supreme Court neutralized some of the effect of the
statute.
In the 1876 decision US v. Cruikshank8, eight men who had murdered a group of AfricanAmericans from Louisiana appealed from convictions under Section 6 of the 1870 Enforcement
Act for conspiring to obstruct citizens in the exercise of the rights or privileges guaranteed by the
Federal Constitution. What was at stake here was the constitutionality of the 1870 Enforcement
Act. The US Supreme Court upheld the validity of Sections 3, 4 and 6 of the Act, but although
the Court did so, it gave a very narrow interpretation of the Act. It indeed held that these rights
or privileges were derived from the states and that therefore the Federal Government had no
authority to protect them. The Court further noted that the only rights that Congress had the
power to protect were the right to vote in a federal election and the right to vote free of racial
discrimination. In this case, neither of these rights was alleged, so the murders in questions were
not an offense under this Act.9
6
Racial Discrimination and the Right to Vote, supra note 3, at 530.
Racial Discrimination and the Right to Vote, supra note 3, at 528 and 529.
8
US v. Cruikshank, 92 U.S. 542 (1876).
9
Racial Discrimination and the Right to Vote, supra note 3, at 528.
7
4
While this decision dealt with private interference with voting rights, the 1876 decision
US v. Reese10 had to do with official interference. In this case, two election judges appealed
from convictions under Sections 3 and 4 of the 1870 Enforcement Act for refusing to accept an
African-American’s vote. The US Supreme Court upheld the indictment and decided to look at
the constitutionality of Sections 3 and 4. It held that “the Fifteenth Amendment does not confer
suffrage upon anyone,” but does create a federal constitutional right that “is within the protecting
power of Congress – the right to be free from discrimination in voting.” While the Court
recognized that the wrongful acts in question were race-based, it invalidated Sections 3 and 4 of
the Enforcement Act, because they could be applied to cases not related to racial
discrimination.11
Nonetheless, several decisions of the US Supreme Court regarding prosecution for
violation of a federal election section asserted Congress’ over federal elections. In the 1884 Ex
parte Yarbrough12 decision, for instance, the Court dealt with white conspirators who had beaten
a black man for voting in a federal election. The US Supreme Court affirmed the convictions as
being in violation of Section 6 of the Enforcement Act that prohibits interference with the
exercise of a federal right or privilege. The Justices emphasized Congress’ power to deal with
the election of federal officers and to protect citizens’ right to vote in those elections, including
protection against private conduct. This construction of congressional power gave the federal
government a powerful tool for protecting voting rights.13
Post-Civil War, the Federal Government occupied major part of Southern States that
allowed for the formation of racially integrated state governments, but this period of federal
10
US v. Reese, 92 U.S. 214 (1876).
Racial Discrimination and the Right to Vote, supra note 3, at 528 and 529.
12
Ex parte Yarbrough, 110 U.S. 651 (1884).
13
Racial Discrimination and the Right to Vote, supra note 3, at 532.
11
5
control ended when Republican state governments collapsed in the South. This was followed by
the domination of the South by the Democratic Party and southern Democrats quickly regained
control of state legislatures. During this post-Reconstruction period (from 1877), federal
enforcement of voting rights weakened and progressive disenfranchisement started. Moreover,
political pressure was put on Reconstruction Governments by whites wanting to eliminate
African-American voters at all costs. The withdrawal of Federal Government from the
protection of voting rights resulted in the use of violence, fraud, corruption and Jim Crow laws
that kept black registered voters from going to vote.14 One of these tactics aimed at diluting
black votes through gerrymandering and malapportionment.15
Gerrymandering is the division of a state, county (voting district) into election districts so
as to give one political party a majority in many districts while concentrating the voting strength
of the other party in as few districts as possible. The word comes from Gerry (Governor of
Massachusetts, whose party redistricted the state in 1812) + (sala)mander, from the resemblance
of the map of Essex County, Massachusetts to this animal after the redistricting. This division of
a voting district in a discriminatory manner for the benefit of a particular candidate was used in
Mississippi where countywide legislative districts in white majority areas were outlined while in
heavily African-American counties, the cities which had large concentrations of whites were cut
out as distinct districts.
The malapportionment of a state or political unit is when these units are apportioned,
divided, organized, structured in a manner that prevents large sections of a population from
14
Karyn L. Bass, Are We Really Over the Hill Yet? The Voting Rights Act at Forty Years: Actual and Constructive
Disenfranchisement in the Wake of Election 2000 and Bush v. Gore, 54 Depaul L. Rev. 111, 120 (2004), at 3.
15
Racial Discrimination and the Right to Vote, supra note 3, at 534.
6
having equitable representation in a legislative body. In Virginia, for instance, the legislature
reapportioned five times in thirteen years between 1871 and 1883.16
Another strategy was to make the election process more difficult. In 1882 in South
Carolina the “eight box law”17 was passed which meant that separate ballots existed for each
electoral office and for the vote to count, the voter had to cast the ballots in the correct box.
African-Americans didn’t receive any help while whites did. Additionally, polling places were
also sometimes located far from black communities or suddenly moved without notice.
Furthermore, difficult to meet qualifications were often used to disenfranchise AfricanAmericans.18 This was going to be the basis for the total disenfranchisement programs of the
Jim Crow era (1876-1965). The Jim Crow laws were state and local laws mandating de jure
segregation of all public facilities through the “separate but equal” status for African-Americans.
Official Disenfranchisement
Officially, African-Americans still had the right to vote, but the methods created to prevent
them from exercising their franchise started generating violence, corruption and fraud in
Southern elections and most whites felt that total disenfranchisement was the only means to
eliminate this. Thus, total and effective disenfranchisement became part of the agenda for racial
segregation. This was to be achieved by institutionalizing disenfranchisement through the
amendment of those state constitutions resulted from Reconstruction.19
In 1890, the Mississippi Constitutional Convention instigated this movement and adopted
the “Mississippi plan” which was a complex strategy of disenfranchisement, since the Fifteenth
16
Racial Discrimination and the Right to Vote, supra note 3, at 534.
Racial Discrimination and the Right to Vote, supra note 3, at 534.
18
Racial Discrimination and the Right to Vote, supra note 3, at 535.
19
Racial Discrimination and the Right to Vote, supra note 3, at 535 and 536.
17
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Amendment had only outlawed the most obvious means of disenfranchisement.20 Other
Southern States enacted numerous laws pursuant to the “Mississippi solution.”
Most Southern States, except Florida and Texas, adopted the literacy and comprehension
tests, which require the applicant to be able to read and write any section of the US
Constitution.21 These were effective in preventing African-Americans from voting, because as
of 1890, two-thirds of southern African-American adults were illiterate, while one-quarter of
southern white adults were.22 The literacy test was upheld in 1959.23
Other measures included: poll taxes, upheld in 1937,24 which were to be paid in advance,
sometimes up to a year in advance of the election; arbitrary residence requirements aimed at
highly migratory African-American; strict registration deadlines; property qualifications etc.
These tests, especially the literacy test, were to be applied with great flexibility in order to only
prevent African-Americans from voting and not whites.25 However, the literacy and
comprehension tests met great opposition among whites. There was concern that illiterate whites
would be denied the right to vote. In order to prevent this from happening, most states set up
alternatives to the literacy tests, such as “understanding” tests, good character requirements or
Grandfather clauses.26
The Grandfather Clause was an exemption based on circumstances existing prior to the
adoption of a policy. Thus, it allowed men to vote even if they did not meet the new
20
Amy Snyder Weed, Getting around the Voting Rights Act: The Supreme Court sets the limits of racial
discrimination in the South, 10 B.C. Third World L. J. 381 (1990), at 2.
21
Racial Discrimination and the Right to Vote, supra note 3, at 537.
22
Getting around the Voting Rights Act: The Supreme Court sets the limits of racial discrimination in the South,
supra note 20, at 2.
23
Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1959).
24
Breedlove v. Suttles, 302 U.S. 277 (1937).
25
Racial Discrimination and the Right to Vote, supra note 3, at 537 and 538.
26
Racial Discrimination and the Right to Vote, supra note 3, at 537.
8
requirements, if they had ancestors who had had the right to vote before the Civil War, so the
exemption was limited to white men. This practice was outlawed in 1915.27
The white primaries28 were also a very effective way of disenfranchising AfricanAmericans. These primaries that were closed to African-Americans coincided to the
development of the one-party South, a process through which all Republican opposition was
eliminated thus giving a monopoly to the Democrats. The underlying idea was that
disenfranchisement of African-Americans would eliminate the divisions of whites and would
therefore preserve white supremacy.
The implementation of the Mississippi scheme in southern states resulted in a
considerable drop in the African-American voting rate. In Mississippi, for instance, the
percentage of African-Americans qualified to vote declined from over 50% to 5%, but even in
the early 1960’s, only 6,7% of black men from Mississippi were registered to vote.29 In
Louisiana for example, by 1900, African-American registration had dropped from 130 000 to
5000.30
The 1896 Mississippi Supreme Court decision Ratliff v. Beale31 dealt with the ruling of
Mississippi’s Attorney General according to which the poll tax could be enforced by levy. In
this decision, the Court stated that because the poll tax was intended only secondarily as a
revenue measure and primarily “as a clog upon the franchise,” payment of the tax should not be
enforceable. It therefore held that the poll tax “must be so construed as to carry into effect the
27
Guinn v. united States, 238 U.S. 347 (1915); Myers v. Anderson, 238 U.S. 368 (1915).
Racial Discrimination and the Right to Vote, supra note 3, at 538.
29
Getting around the Voting Rights Act: The Supreme Court sets the limits of racial discrimination in the South,
supra note 20, at 2.
30
Racial Discrimination and the Right to Vote, supra note 3, at 542.
31
Ratliff v. Beale, 74 Miss. 247, 266-67, 20 So. 865 (1896).
28
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purpose of the convention. It is evident that, the more the payment of the tax is made
compulsory, the greater will be the number by whom it is paid, and therefore the less effectual
will be the clause for the purpose it was intended.” The Court also stated that “By reason of its
previous condition of servitude and dependence, this (negro) race had acquired and accentuated
certain peculiarities of habit, of temperament, and of character, which clearly distinguished it as
a race from that of the whites – a patient docile people, but careless, landless, and migratory
within narrow limits, without forethought, and its criminal members given rather to furtive
offenses than to robust crimes of the whites.”32
During this post-Reconstruction era, Congress also repealed most if the Reconstruction
statutes in 1894 (most of which remained that way until 1909) saying33: “Let every trace of the
reconstruction measures be wiped from the statute books; let the States of this great Union
understand that the elections are in their own hands, and there be fraud, coercion, or force used
they will be the first to feel it.”34 The Supreme Court rejected six claims aimed at challenging
the disfranchising plans in Virginia, Mississippi, South Carolina and Alabama without looking at
the merits.35
In 1898, for instance, in the Williams v. Mississippi36 decision, the US Supreme Court
rejected the claims of an African-American defendant who had been convicted by all-white
juries. He argued that African-Americans had been purposely disenfranchised in his county and
since only registered voters could sit on juries, they had been purposely excluded from sitting on
juries. The Justices held that the federal Constitution allowed a state to take advantage of the
32
Racial Discrimination and the Right to Vote, supra note 3, at 536 and 537.
Racial Discrimination and the Right to Vote, supra note 3, at 539.
34
H.R. Rep. No. 18, 53rd Cong., 1st Sess. 7 (1893).
35
Racial Discrimination and the Right to Vote, supra note 3, at 539.
36
Williams V. Mississippi, 170 U.S. 213 (1898).
33
10
“alleged characteristics of the Negro race” and that “the Constitution of Mississippi and its
statutes (…) do not on their face discriminate between races, and it has not been shown that their
actual administration was evil, on that evil was possible under them."37
Progressive Re-Enfranchisement
With the changing political context of the 1940’s, the Second World War II and the New
Deal, African-American discontent and pressure increased.38 The composition of US Supreme
Court changed which allowed for encouraging decisions towards the re-enfranchisement of
African-Americans. In 1941, the US Supreme Court decided the first case brought by the newly
created Civil Rights Section of the Criminal division within the Justice Department. In this US v.
Classic39 holding, the Justices recognized the primary as an integral part of the election process
and therefore, excluding African-Americans from primaries substantially affected their right to
vote. The Court also extended the power of congress over federal elections in this decision.40
The Classic holding led to the 1944 Smith v. Allwright41 decision, in which the US Supreme
Court outlawed white primaries.
In 1949, the US Supreme Court Davis v. Schnell42 holding outlawed state’s new
“understand and explain test” on the grounds that this test gave the registration officials an
opportunity to discriminate.
In 1947, the President’s Commission on Civil Rights issued a report entitled “To secure
these Rights.” Several important recommendations regarding African-American’s civil rights
37
Racial Discrimination and the Right to Vote, supra note 3, at 539 and 540.
Racial Discrimination and the Right to Vote, supra note 3, at 544.
39
US v. Classic, 313 U.S. 299 (1941).
40
Racial Discrimination and the Right to Vote, supra note 3, at 543.
41
Smith v. Allwright, 312 U.S. 649 (1944).
42
Davis v. Schnell, 336 U.S. 933 (1949).
38
11
were advanced, among which ending segregation in schools and discrimination in employment;
ending poll taxes; creating a permanent US Civil Right Commission which was created by
Congress in 1957.43
Congress also played an important role in the re-enfranchisement of African-Americans
by passing legislation resembling the Reconstruction statues. In 1957, Congress passed the first
Civil Rights law since 1875, a law that embodied the beginning of a new era.44 The 1957 Civil
Rights Act codified the recommendations of the Commission on Civil Right’s report. It created
a Commission on Civil Rights and provided that the Civil Rights Section of the Justice
Department became a Civil Rights Division. This Act also completed the 1870 Enforcement Act
with a provision prohibiting anyone, whether or not acting under color of law, from interfering
with any person’s right to vote in a federal election. It further authorized the Attorney General to
seek relief against anyone who violates or might violate another person’s voting rights, either the
right to vote in a federal election or the right to be free from racial discrimination in voting; this
is said to be one of its significant features.45 The 1957 Act had weaknesses, however, and very
few cases were brought under it.
The 1960 Civil Rights Act took more robust action against voting depravation and
created another significant tool.46 When, in an action brought by the Attorney General, the local
federal district courts found that there was a “pattern or practice” of discrimination, the court was
required by the Act to appoint federal voting referees. The referee’s role was to register
applicant who showed that they were qualified to vote under state law but had been denied
registration because of this pattern or practice of discrimination. The aim of this provision was
43
Racial Discrimination and the Right to Vote, supra note 3, at 544.
Racial Discrimination and the Right to Vote, supra note 3, at 544.
45
Voting Rights Act of 1965, supra note 2, at 464 and 465.
46
Voting Rights Act of 1965, supra note 2, at 465 and 466.
44
12
to ensure that state voter qualifications applied to African-Americans would not be more strict
than those applied to whites. If the literacy test, for instance, was not applied to whites, it could
no longer be applied to African-Americans either. In the 1964 Civil Rights Act, Congress
adopted the Classic doctrine and used its power over federal elections to amend state
qualifications for voters in federal elections. This Act was aimed at eliminating the worst
literacy tests.47
It is only with the 1965 Voting Rights Act; nearly a century after the Fifteenth
Amendment was adopted, and that universal suffrage truly became effective.48
III.
Katzenbach’s Revolution: Expansion of Federal Power to Expand the Franchise
Katzenbach v. South Carolina
As the civil rights movement developed in the 1960s, Congress set out to pass a series of
provocative and powerful pieces of legislation to combat the entrenched discrimination that was
rampant across many sections of the United States.49 Chief among the different pieces of
legislation was the Voting Rights Act of 1965. The 1965 Act was not the first of its kind,
coming in the line of other Acts from 1957, 1960, and 1964.50 Each successive Act, building on
each other, attempted to regulate a State’s ability to implement voter eligibility tests that
disparately affected African-Americans.51 The 1965 Voting Rights Act, however, was
fundamentally different than previous pieces of legislation. Where the previous federal laws
tackled particular types of disenfranchisement and discrimination, the 1965 Act set to create a
47
Racial Discrimination and the Right to Vote, supra note 3, at 547
Are We Really Over the Hill Yet? The Voting Rights Act at Forty Years: Actual and Constructive
Disenfranchisement in the Wake of Election 2000 and Bush v. Gore, supra note 14, at 3.
48
49
South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966).
Id. at 313.
51
Id.
50
13
broad and encompassing law that would structurally combat discrimination.52 The Act created a
complex system that identified the States and political subdivisions that had the most rampant
levels of racial discrimination in voting, a thorough list of remedies that would then be applied to
those found discriminating, a suspension of all new voting regulations in those localities pending
a review by federal authorities, and appointed federal examiners to list qualified applicants who
have the ability to vote in those localities.53 The Act also provided general guidelines for all
states on rectifying past voting discrimination and strengthened existing procedures where
applicable.
South Carolina was brought into the Voting Rights Act’s coverage formula on August 7,
1965, triggering the stringent standards of the Act.54 South Carolina filed a bill of complaint
seeking a declaration that the 1965 Voting Rights Act was unconstitutional and sought an
injunction against the enforcement of the Act by the Attorney General.55 In an extremely rare
move, the Supreme Court exercised original jurisdiction over the case.56 The United States
Supreme Court can grant original jurisdiction in two instances: 1) where one of the parties is a
foreign dignitary and 2) where the controversy is between a State and a citizen of another State
under Article III of the United States Constitution.57 In another surprising move, the Supreme
Court, recognizing the national importance of the case, welcomed all of the States to participate
in the proceeding as friends of the Court.58
52
NICHOLAS KATZENBACH, SOME OF IT WAS FUN, 174 (2008).
South Carolina v. Katzenbach, 383 U.S. at 317-322.
54
Id. at 322.
55
Id.
56
Katzenbach, supra note 4, at 178.
57
Id.
58
South Carolina v. Katzenbach, 383 U.S. at 307.
53
14
South Carolina chose to bring the suit against Nicolas Katzenbach, the United States
Attorney General at the time, who was one of the chief architects behind the Voting Rights Act
of 1965.59 Besides the granting of original jurisdiction, another peculiarity was Katzenbach
actually gave the oral argument on behalf of the federal government to the Supreme Court in his
namesake case.60 Katzenbach, seizing on the opportunity to make a light-hearted joke, had
Thurgood Marshall, his solicitor general, convince the Supreme Court Clerk to draft the opinion
stating, “Attorney General Katzenbach argued the case pro se.”61 Reflecting on his preparation
for trial, Katzenbach remembers that he and Thurgood Marshall were at a relative ease before the
oral arguments commenced.62 Katzenbach, with an intimate knowledge of the Act, contends that
the issues were straightforward and that South Carolina had no leg to stand on.63 To this day,
Katzenbach still disagrees with Justice Black’s ruling on the issue of advisory opinions; but does
admit that at oral arguments he was shaken, not expecting the question.64 Despite the surprise,
Katzenbach found the oral argument a success and bases it on a well-developed and well-written
piece of legislation.65
The Supreme Court granted judicial review only on four provisions of the 1965 Voting
Rights Act: 1) coverage formula for determining which States fell under the stricter voting
procedures; 2) temporary State suspension of voter eligibility laws already enacted; 3) federal
review of all new voter eligibility rules; and 4) appointment of federal voting examiners.66 South
59
Katzenbach, supra note 4, at 178.
Id.
61
Id. at 179.
62
Telephone interview with Nicholas Katzenbach (Sept. 11, 2009).
63
Id.
64
Id.
65
Id.
66
South Carolina v. Katzenbach, 383 U.S. at 316.
60
15
Carolina contended that all of the challenged provisions exceeded the powers of Congress to
enact and were reserved to the States by the Constitution.67
State Coverage Formula
The Supreme Court concluded that Congress had the power under the Fifteenth
Amendment and deferred to their judgment regarding the formula to be applied in determining
suspect States and political subdivisions.68 Specifically, the Supreme Court noted that Congress’
formula was based on evidence of actual voting discrimination by eligibility tests or the improper
use or application of those tests on African-Americans.69 The Court stated that the coverage
formula was, “rational in both practice and theory.”70 Further, the Court stated that there were
sufficient safeguards built into the Act that allowed States to challenge the maintaining of
discriminatory laws.71
Suspension of Tests
South Carolina attacked the validity of suspension tests based on case law that stated
voting eligibility requirements on their face was not discriminatory and thus did not violate the
Fifteenth Amendment.72 The Court disagreed with South Carolina and found that although the
eligibility requirements were on their face non-discriminatory, there was substantial evidence
showing the requirements being used in a discriminatory fashion.73 Congress could have
required that all eligible voters re-register, but recognized the severe effect would have on those
67
Id. at 323.
Id. at 329.
69
South Carolina v. Katzenbach, 383 U.S. at 329.
70
Id. at 330.
71
Id.
72
Id. at 333.
73
Id. at 334.
68
16
who had been voting for their entire adult life.74 Thus, the Court found that Congress had chosen
a practical requirement; suspension of such eligibility requirements for five years in those States
that had a substantial history of voting discrimination.
Federal Review of New Voting Eligibility Requirements
South Carolina next argued that federal review was improper because forcing proposed
eligibility requirements in front of the District Court for the District of Columbia without an
actual controversy was nothing more than allowing federal courts to issue advisory opinions, an
action that was expressly unconstitutional.75 The Court again disagreed with South Carolina’s
argument due to the extraordinary circumstances where States would historically refasten voter
eligibility requirements to avoid Congressional legislation to stop discrimination. Thus Congress
was required to be proactive legislatively to adequately remedy discrimination.76 The Court
dismissed the claim that the requirement violated the cases and controversy requirement of the
Constitution by finding that the federal review was a simple administrative action.77 The case
and controversy arises when the State or political subdivision moved for a judicial determination
for the validity of the particular provision.78
Listing of Qualified Applicants by Appointed Federal Examiner
The final challenge was the validity of appointing a federal examiner to list qualified
applicants who thereafter had the right to vote in the particular State or political subdivision.79
The Court found that again due to the extraordinary steps taken by States to evade Congressional
74
Id.
South Carolina v. Katzenbach, 383 U.S. at 334.
76
Id. at 335.
77
Id.
78
Id.
79
Id.
75
17
mandates, that the mere suspension of eligibility rules in some locales was not enough to
alleviate the effect of past discrimination.80 To remedy this, Congress used federal examiners to
hasten the ability of African-Americans to register and vote.81 The Court found that the
provision was not overly broad or harsh because it was limited to those areas in which racial
discrimination was most pervasive and the examiner’s role was temporary to remedy the past
discrimination and would then be removed.82
IV.
The Modern Face of Voter Discrimination: Right to Access
Progression of Voting Rights Act
Ever since the Voting Rights Act of 1965 was enacted, there have been many challenges
that have tried to manipulate the Act’s effectiveness. Section 5 of the Voting Rights Act requires
jurisdictions to obtain “preclearance” for the implementation of new voting procedures.83 In
1970, Congress extended Section 5 for another five years.84 In 1975, Congress extended the
Section 5 requirement for another seven years.85 During the legislative hearings on extending
Section 5, many stories were brought to Congress’ attention relating to manipulation of voting. 86
Stories surfaced of gerrymandering, annexations, adoption of at-large elections, and structural
changes to deny newly registered African American voters from effectively using the ballot.87
Despite the extensions of Section 5 provided by Congress, the prevention of voting rights
discrimination took a hit in 1980. In Mobile v. Bolden, a divided Court decided that claims of
80
South Carolina v. Katzenbach, 383 U.S. at 336.
Id.
82
Id.
83
Are We Really Over the Hill Yet? The Voting Rights Act at Forty Years: Actual and Constructive
Disenfranchisement in the Wake of Election 2000 and Bush v. Gore, supra note 14 at 120.
84
Id at 122.
85
Id.
86
Id.
87
Id. at 123.
81
18
minority vote dilution contain proof of a racially discriminatory purpose.88 Congress quickly
removed this new heightened standard by amending Section 2 of the Voting Rights Act in 1982
to allow that only a showing of a discriminatory impact be required.89 Congress also extended
Section 5 for another 25 years.90
Since 1965, there have been different generations of the types of cases involving voting
rights discrimination.91 The first generation included physical intimidation and blatant
disenfranchisement techniques.92 This generation was mostly gone by the 1980s.93 The second
generation of cases focused on political equality.94 These cases involved voter dilution. The
third generations of cases also involved voter dilution, but were mainly focused on redistricting
of minority districts.95
Bush v. Gore
Although the Katzenbach case and Voting Rights Act of 1965 were significant in
banishing racial discrimination in voting, the problem has still persisted over the years. One of
the most evident cases of racial discrimination in voting occurred during the 2000 Bush v. Gore
election.
Following the 2000 election, it was national news how there were several reports of
hanging chads, pregnant chads, dimpled chads, and out-dated voting machines.96 There were
also questions about absentee ballots in which the Republican Party went through, corrected, and
88
Id.
Id. at 124.
90
Id.
91
Id at 136.
92
Id.
93
Id.
94
Id. at 136-137.
95
Id. at 137.
96
Id. at 111-112.
89
19
counted.97 However, there were more stories of problems related to the voting system, which did
not make the front page of national papers.98 These stories involved Jesse Jackson holding
rallies to speak out against the racial discrimination that thousands of African-Americans
experienced while attempting to vote in the election. 99 The stories told by African-Americans
included being physically intimidated away from polling places, being required to show picture
identification, which was not required from white voters, and other African-Americans were just
not allowed to vote.100
These voting requirements that disproportionately affected African-American voters were
not the only proof of racial discrimination in the 2000 presidential election. Statistics of which
votes were counted and which votes were discarded show that there was clearly discrimination of
African-American votes. African-Americans only made up 16% of the voting population in
Florida.101 However, African-Americans made up 54% of the ballots that were not counted.102
Automatic machines rejected 14.4% of African-American votes, and only rejected 1.6% of
ballots cast by other voters.103
Despite the same machines being used, African-American voters had issues with their
votes at a much higher rate than any other race.104 In predominantly African-American
precincts, the voting machines rejected ballots at twice the rate of predominantly Latino precincts
and four times the rate as predominantly white precincts.105
97
Id. at 112.
Id.
99
Id.
100
Id.
101
Id.
102
Id.
103
Id.
104
Id.
105
Id.
98
20
Other Forms of Discrimination
It is clear from the 2000 election that despite Katzenbach and the Voting Rights Act,
voting discrimination is still seen today. There are even still legal ways that voting exclusion
occurs today.106 One way that people claim is an attempt to disenfranchise the African American
vote is the fact that a lot of states do not allow ex-felons to vote.107 The fact that elections are
held on Tuesdays is also viewed as discriminatory because African-Americans are often
disproportionately affected because of the number of them in blue-collar type positions.
Obama v. McCain
In the 2008 election, the United States media focused on how far the country has come in
terms of racial discrimination due to the fact that the voters elected the country’s first AfricanAmerican President. Although this was a significant accomplishment for eliminating racial
discrimination, racial discrimination was still being seen at the voting precincts.108 Lines and
requests for identification were much more common in predominantly African American
precincts than in predominantly white precincts.109
According to the Cooperative Congressional Election Survey (“CCES”), 68% of white
voters waited ten minutes or less.110 Only five percent of whites waited an hour or longer.111
Only 45% of blacks waited ten minutes or less, and about 15% waited an hour or longer. 112 Only
approximately 50% of white voters were asked for photo identification, while approximately 2/3
106
Id. at 136.
Id.
108
Stephen Ansolabehere, Election: Is There Racial Discrimination at the Polls? Voter’s Experiences in the 2008
Election, Harvard University, 2 (2009).
109
Id. at 3.
110
Id. at 4.
111
Id.
112
Id.
107
21
of black voters were asked for photo identification.113 One interesting statistic was the fact that
African-American poll workers also tended to discriminate against other African-Americans.114
In states where it is not required to ask for photo identification, African American poll workers
asked white voters for identification 30% of the time and African American voters 46% of the
time. 115
Department of Justice
Although voting discrimination can still be seen today, the U.S. Department of Justice is
doing what it can to enforce the Voting Rights Act and prevent discrimination. In May of 2009,
the US Department of Justice blocked flawed racially discriminated voting practices in
Georgia.116 The practices in Georgia included two types of procedures.117 “One procedure flags
voter registration applicants and some types of existing registered voters as non-citizens
according to information obtained by the Secretary of State (SOS) from records of the Georgia
Department of Driver Services (DDS). Persons flagged by this process are then required to
provide additional proof of their citizenship before they are allowed to vote. The second
procedure is a so-called "no match, no vote" rule, under which the SOS would attempt to match
personal information provided by voter registration applicants with records from the DDS
database or a Social Security Administration database. If a registration applicant's personal
information did not exactly match the information in those databases, the applicant's registration
would be rejected until the county registrar obtained more information.”118 The Department of
113
Id.
Id. at 8.
115
Id.
116
Justice Department Blocks Discriminatory Voting Practices in Georgia, American Civil Liberties Union,
6/1/2009, available at http://www.aclu.org/votingrights/access/39716prs20090601.html.
117
Id.
118
Id.
114
22
Justice found that Georgia Secretary of State, Karen Handel, was not able to prove that the new
procedures did not have a discriminatory effect on minority voters.119 Thus, the procedures were
banned.120
The Department of Justice has also been sending “federal observers” throughout the
United States to ensure that voting procedures are conducted without discrimination.121 The
Department of Justice also talks to the states and different localities to educate them about what
proper voting procedures are, and make sure that discrimination does not take place.122
Although certain parts of the Voting Rights Act needed to be renewed, the Voting Rights
Act will never expire.123 It is a permanent federal law. Also, the equal right to vote is protected
by the 15th Amendment of the Constitution.124 Further, in numerous cases since the 1960s courts
have established that the right to vote is fundamental.125
V.
The Contemporary Face of Voter Discrimination Litigation
Northwest Austin Facts and Procedural History
Northwest Austin Municipal Utility District One is an entity with an elected board that
attempted to change its voting procedures, which required clearance from the federal government
119
Id.
Id.
121
US Department of Justice Civil Rights Division Voting Section, United States Department of Justice, 9/14/2009,
available at http://www.usdoj.gov/crt/voting/misc/faq.php#faq01.
122
Id.
123
Id.
124
Id.
125
Id.
120
23
under section 5 of the VRA.126 There was no evidence of past racial discrimination in the
district.127
The VRA has a bailout provision that allows certain political subdivisions to avoid
preclearance for changes in voting procedures if the subdivisions meet certain requirements.
NWAMU alleged it should follow under that provision.128 The district court ruled that because
NWAMU did not register its own voters, it was not eligible for the bailout provision.129
NWAMU appealed alleging that it was eligible and that the VRA was unconstitutional.130
Section 5 forbids any voting scheme that has the “purpose” or “effect” of “abridging” the
right to vote based on race.131 The court has held that this provision applies to drawing voting
districts.132 This provision was meant to apply only to states that discriminated in the past, and
so a provision was added that allowed a voting district to seek a declaratory judgment exempting
it from the VRA.133 The provision of the original VRA was set to expire in 1970, but was
reauthorized in 1970, 1975, 1982 and 2006.134 Several of those reauthorizations were challenged
constitutionally, but all survived based on an assessment of the contemporary circumstances.135
The current baseline year for assessing whether the VRA applies is 1972.136 NWAMU delivers
utilities to Travis County, Texas and elects its own board.137
126
Northwest Austin Municipal Utility District v. Mukasey, No. 08-322, 2009 U.S. LEXIS 2503 (2009).
Id. at 2508.
128
Id.
129
Id.
130
Id.
131
Id. at 2509.
132
Id. at 2509, citing Allen v. State Bd. of Elections, 393 U.S. 544, 564-565, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969).
133
Id. at 2509.
134
Id. at 2510.
135
Id. at 2510, citing Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973); City of Rome v.
United States, 446 U.S. 156, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980); Lopez v. Monterey County, 525 U.S. 266, 119
S.Ct. 693, 142 L.Ed.2d 728 (1999).
136
Id. at 2510.
137
Id.
127
24
Justice Roberts Opinion
The Supreme Court held that NWAMU was eligible for the bailout provision, and thus
the Court did not have to reach the constitutional question.138 The Court noted that AfricanAmerican voter registration is significantly higher than it was when the VRA was enacted and
many of the discriminatory practices have been curtailed.139 The Court also noted that several
Justices have expressed “serious misgivings” about the Act’s constitutionality.140 The Court
observed that minority voter registration is higher in states that Section 5 applies to than states
that the section does not apply to.141
The Court disagrees with Justice Thomas’s argument in the dissent that the constitutional
question cannot be avoided because resolving the other question in favor of NWAMU will not
grant the district all the relief it seeks.142 The Court held that because the constitutional question
was raised in the alternative, the relief sought by the district in each case was different.143
The act applies to “political subdivisions” of a state.144 Further statutory definitions
stated that the act applied only to a “county or parish, except that where registration for voting is
not conducted under the supervision of a county or parish, the term shall include any other
subdivision of a State which conducts registration for voting.”145
The court held that the narrower statutory definition of “political subdivision” did not
apply to all uses of the term.146
138
Id. at 2508.
Id. at 2511.
140
Id.
141
Id. at 2512.
142
Id. at 2513.
143
Id.
144
Id., citing 42 U.S.C. § 1973b(a)(1)(A).
145
42 U.S.C. § 1973l (c)(2).
146
Id. at 2514.
139
25
Justice Thomas Dissent
Justice Thomas argues that Section 5 covers more situations than the 15th amendment
anticipates because the 15th amendment only applies to discrimination based on explicit criteria,
whereas Section 5 applies to any change in voting procedures.147 Thomas acknowledges the
purpose of this broader interpretation is to deter future violations.148 Thomas then argues that
this creates a tension between the 15th and 10th amendments (that reserves powers not delegated
by the constitution to the federal government to the states).149 He argues that the broad powers
of Section 5 were previously justified based on the evidence of past discrimination, but are not
currently justified.150
Thomas believes that the broad powers of Section 5 are only permitted when there is
evidence of current, intentional discrimination.151 Thomas sees the VRA as an extreme
departure from the traditional concept of the States as sovereign entities.152 This departure was
justified only in light of the extraordinary circumstances presented by voting rights
discrimination.153 Thomas recites the history of voter disenfranchisement, particularly noting the
violence and repeated efforts to circumvent federal laws designed to offer the right to vote to
African-Americans.154 Thus, he concludes, congress needed to address the propensity of states
to find ways around the laws.155
147
Id. at 2523.
Id.
149
Id. at 2524.
150
Id.
151
Id. at 2519.
152
Id. at 2519 -20.
153
Id. at 2520.
154
Id. at 2520 - 2522
155
Id. at 2522.
148
26
Thomas cites Katzenbach as precedent for this interpretation.156 He pointed to the
congressional record used to justify the 1965 Act.
Thomas argued that Katzenbach developed the principle that even “innocuous” changes
to voting procedures could not be implemented absent DOJ clearance, which surpasses the 15th
amendment’s prohibition on denying the right to vote on “race, color, or previous servitude.”157
Thomas cites dissents from other Justices in support of his contention that Section 5 is an
extreme measure.158
Ultimately, Thomas argues that “for § 5 to withstand renewed constitutional scrutiny,
there must be a demonstrated connection between the “remedial measures” chosen and the “evil
presented” in the record made by Congress when it renewed the Act. 159
Thomas argues that “[c]overed jurisdictions are not now engaged in a systematic
campaign to deny black citizens access to the ballot through intimidation and violence.”160
Additionally, Thomas notes that devices such as literacy tests and grandfather clauses do not
exist anymore.161 Literacy tests were effective because blacks were systematically excluded
from educational opportunities.162 Whether those types of devices would be effective today is
questionable. Even though blacks tend to have less educational opportunities than whites, it
would probably be difficult to employ such a test in the current media environment.
“Punishment for long past sins is not a legitimate basis for imposing a forward- looking
preventative measure that has already served its purpose.”163 Thomas points to the lack of any
evidence suggesting comparable problems that exist today to justify the extraordinary measures
156
Id. at 2523.
Id.
158
Id. at 2524.
159
Id. at 2525, citing City of Boerne v. Flores, 521 U.S. 507, 530, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997).
160
Id.
161
Id.
162
Id.
163
Id. at 2525.
157
27
of Section 5.164 He cites the congressional record that acknowledges that the devices discussed
in Katzenbach did not exist.165 Instead, Congress justified the passage of the current VRA based
on the new practices of voter disenfranchisement.166 Thomas did not believe the justifications
cited for the 2006 reauthorization constituted purposeful discrimination.167
One of the justifications cited by Congress was racially polarized voting.168 Thomas
noted that such voting is neither a state action, nor is it limited to the states covered by the
original VRA.169 Thomas does accept that “discrete and individual” occurrences of
discrimination happen.170 However, he believes that a pattern of such acts is necessary to
support the Constitutionality of Section 5.171
U.S. v. Euclid City School Board
The Euclid city school board (the “board”) was liable for violations of the VRA.172
There was no question as to the liability, only an issue as to what remedy would be legally
sufficient.173 The U.S. argues that a remedy must result in near-proportional representation.174
The U.S. offered a plan where the board would be divided into single-member districts, where
one would be majority African-American.175
The board argues that a remedy should only “provide an opportunity for meaningful
participation.”176 It argued that because year-to-year voting patterns vary, a plan that ensures
164
Id.
Id. at 2526.
166
Id.
167
Id.
168
Id.
169
Id.
170
Id.
171
Id.
172
U.S v. Euclid City School Board, 2009 WL 2015078, p3-4 (2009).
173
Id. at 4.
174
Id.
175
Id.
176
Id.
165
28
proportional representation when minority voter turnout is at the same level as white voter
turnout. 177
The court discussed two voting concepts: limited voting and cumulative voting. Under a
limited voting scheme, voters would have one vote, but multiple candidates would be elected.178
Under a cumulative voting scheme, voters would have a vote for each office, but could pool
those votes if they wished.179 The court considered factors such as the familiarity of the voters
with a particular system and the complexity of implementation.180 The court further delved into
the minutiae of at-large elections compared to staggered at-large elections.181 The court
approved the use of staggered, at-large elections against the allegation by the U.S. that they were
discriminatory.182
LULAC of Texas v. Texas Democratic Party
LULAC challenged the way in which the Texas Democratic Party (TDP) allocated its
delegates to its nominating convention. Political parties are subject to the voting rights act if
they administer primary elections on a scale that is typically performed by the state.183
The TDP apportioned delegates for the 2008 nominating convention based on the
proportional votes a district cast for the Democratic candidate in the 2006 gubernatorial
election.184 Hispanic districts voted for the Democratic candidate in higher percentages than
many white districts, yet received fewer delegates based on the TDP’s formula.185 This is similar
177
Id. at 4.
Id. at 12.
179
Id.
180
Id.
181
Id.
182
Id. at 13.
183
LULAC of Texas v. Texas Democratic Party, No. 5:08-cv-389, 2009 U.S. Dist. LEXIS 75179 (W.D. Tex.
Aug. 24, 2009); citing Morse v. Republican Party of Virginia, 517 U.S.186, 116 S.Ct. 1186, 134 L.Ed.2d 347
178
(1996).
184
185
Id. at 2.
Id.
29
to the Electoral College vote that enabled George Bush to win the 2000 election despite losing
the popular vote.186 This case is reviewing a summary judgment motion.187 In these cases, any
change is subject to section 5 of the VRA if it potentially discriminates against minority
voters.188
DOJ Attorney Scandal
In 2007, the Bush DOJ was involved in a scandal for firing United States Attorneys for
allegedly politically motivated reasons.189 Specifically, the attorneys were fired for not pursuing
charges of voter fraud.190 The attorneys were pressured by the Bush Administration to pursue
charges that the fired attorneys believed were baseless.191 The Bush Administration maintained
that the attorneys were fired because of poor job performance, but a congressional investigation
produced testimony and documents that showed the firings were primarily motivated the
attorneys’ refusal to pursue those cases.192
VI.
Conclusion
The Voting Rights Act of 1965 and the Katzenbach case served as the catalyst for
legitimate change in the way African-Americans were treated at the voting booth. Both the VRA
and the Katzenbach case challenged state sovereignty in the hopes of destroying the precedent
and history of voting discrimination. Although a victory, neither the VRA nor the Katzenbach
decision has provided the hope of unfettered voting access. The subsequent Voting Rights Acts
186
Id.
Id.
188
Id.
189
http://www.washingtonpost.com/wp-dyn/content/article/2007/05/13/AR2007051301106.html
190
Id.
191
Id.
192
Id.
187
30
highlight the continual need for federal oversight to tackle discrimination. The discrimination
today, however, is not an issue of eligibility requirements, but is instead a broader issue of
access. Despite the challenges, the Katzenbach decision will continue to stand as the champion
for voting equality in the United States.
31