First and foremost, much gratitude to Eugene Volokh for creating space for me on his splendid, indispensable blog.
Voting Rights — and Wrongs is my second effort to understand a statute that has become, in the words of Richard Pildes, "one of the most ambitious legislative efforts in the world to define the appropriate balance between the political representation of majorities and minorities in the design of democratic institutions."
Defining that appropriate balance was not the original aim of the 1965 Voting Rights Act. Its initial purpose was simple: enfranchising southern blacks ninety-five years after the passage of the Fifteenth Amendment.
The statute has become such an eye glazing mess that it's easy to forget that in 1965 it was beautifully designed and absolutely essential. Southern blacks were still kept from the polls by fraudulent literacy tests, intimidation, and violence.
Black ballots had been the levers of change that white supremacists most feared, and they were not prepared to go quietly into the night. Enforcing Fifteenth Amendment rights thus required overwhelming federal power — radical legislation that involved an unprecedented intrusion of federal authority into state and local election affairs.
In this first post, I provide a little guide to that radical (and confusing) legislation.
The act put southern states under the equivalent of federal receivership in the conduct of their elections. It suspended literacy tests throughout the region. It provided for the use of federal registrars where necessary. And it demanded that racially suspect jurisdictions submit all proposed changes in their methods of election to the Justice Department (or the seldom-used D.C. district court) for pre-approval — "preclearance." A statistical trigger that had been reverse-engineered identified the "covered" jurisdictions; the framers of the act knew which states should be covered and arrived at the proper formula.
In states and counties covered by section 5 — initially all in the South — the burden of proving that changes in voting procedure were free of racial animus was placed on them. A city, for instance, that submitted for preclearance a proposed enlargement of its governing council had to prove a negative, an absence of discriminatory purpose or effect. Suspected discrimination was sufficient to sink a proposed change.
The provision compelled states to "beg federal authorities to approve their policies," and thus so distorted our constitutional structure as to almost erase the distinction between federal and state power, Justice Hugo Black complained in 1966 when the Supreme Court upheld the constitutionality of the statute.
It was a constitutionally serious point, and should not have been forgotten in later years. At the time, however, all other attempts to secure Fifteenth Amendment rights had failed. That, too, is a point that needs to be remembered.
The act very quickly succeeded in meeting its original aim. Southern black registration skyrocketed. But ensuring black electoral equality was more difficult than originally understood. In Mississippi and elsewhere, counties and other political subdivisions began to structure elections to minimize the number of blacks likely to win public office.
In the face of racist maneuvers to maintain white supremacy, in 1969 the Supreme Court expanded the definition of discriminatory voting practices to include devices that "diluted" the impact of the black vote. At-large voting, districting lines, and other election procedures whose impact could deprive blacks of expected gains in officeholding became subject to preclearance.
The Court had put the enforcement of the act on a proverbial slippery slope. Ensuring that black ballots carried proper political weight became the expanded goal of the act. From there it was but a short slide to a constitutionally problematic system of reserved seats for minority group members, even in settings with no history of racist exclusion.
And from there, with another short slide, proportional racial and ethnic representation became the only logical standard by which to measure true electoral opportunity. Anything less than proportional officeholding suggested a "diluted" minority vote — one that was less effective than it could be.
In any case, civil rights advocates saw proportional results as the proper measure of opportunity — in employment, education, and contracting, too — and those who wrote, interpreted, and enforced the law consistently took their cues from these advocates.
Thus, when the Justice Department rejected a districting map as racially suspect, the jurisdiction was obligated to go back to the drawing board. New lines had to be drawn, with the understanding that the maximum number of possible safe black legislative seats would be created.
The original statute was altered in other important respects. Section 5 was an emergency provision with an expected life of only five years. It was repeatedly renewed, most recently in 2006 for another quarter century.
Every renewal became an occasion for amendments that strengthened the act; never did Congress stop to consider whether the statute's unprecedented powers should, in fact, be pared back in recognition of its success. Thus, as black political participation was steadily and dramatically rising, federal power over local and state electoral affairs was paradoxically expanding.
In 1970 and 1975, new groups and new places came under preclearance coverage. An arbitrary, careless change in the statistical trigger, for instance, made section 5 applicable to three boroughs in New York City (although not the other two), even though black New Yorkers had been freely voting since the enactment of the Fifteenth Amendment in 1870, and had held municipal offices for decades.
In 1975, amendments added Hispanics, Asian Americans, American Indians, and Alaskan Natives to the list of those eligible for extraordinary protection, although their experience with racist exclusion from the polls was not remotely comparable to that of southern blacks.
With more mindless changes to the statistical trigger, preclearance was also extended to Texas, Arizona, Alaska, and scattered counties in California and elsewhere across the nation.
In 1982, Congress rewrote an innocuous preamble, section 2. Preclearance kicked in only when a jurisdiction altered some aspect of electoral procedure. But, as amended, section 2 provided plaintiffs with a powerful tool to attack long-standing methods of election anywhere in the nation that had the "result" of denying the right to vote on account of race or color.
Section 5 had provided a remedy for vote dilution only relative to the electoral strength that blacks and Hispanics enjoyed before a jurisdiction altered a districting map or other voting practices, the Supreme Court held in 1976. It was an interpretation that squared with the structure of the Voting Rights Act, and delegated to Justice Department attorneys and staff remote from the scene a limited, and thus manageable, task: stopping the institution of new electoral arrangements that undermined the force of the 1965 law.
But section 2 guaranteed electoral equality in some absolute sense — undefined and indefinable. The obvious solution, once again, was to resort to proportionality as the standard by which to measure of racial fairness, even though it rests on a profound misconception of the "natural" distribution of racial and ethnic groups across the residential, occupational, and other aspects of the social landscape.
Moreover, racist exclusion, not statistical imbalance, should have been the concern.
At the same time, race-conscious districting brought real gains in political integration — gains that cannot be easily dismissed. But this is the topic of the next post.