Lecture 18 Notes

Voting Rights Act of 1965

The Voting Rights Act was signed into law on August 6, 1965, by Lyndon Johnson.  Its primary purpose was to enforce the 15th Amendment of the Constitution, which forbade the states and the federal government to deny suffrage to any citizen on account of race, color, or previous condition of servitude.  Legislators in the 19th century believed that the amendment would be sufficient to provide protection to allow blacks to vote without undue interference.  However, southern legislatures proved too creative to be hemmed in by the 15th Amendment, using strategies such as the poll tax, grandfather clause, and literacy tests to restrict or limit voting opportunities of blacks.  Other practices were also effective in restricting black voting rights, including the submergence of minority voting strength, at-large elections, multi-member districts, and gerrymandering of district lines.

As we consider the Voting Rights Act, we should keep in mind some standards by which we can evaluate its efficacy:  Did it enfranchise blacks in the South?  Did it prevent the dilution of minority votes?  Did blacks win office?

State of Affairs in 1964

• In spite of the Civil Rights Acts in 1957, 1960, and 1964 -- or perhaps because of their weak voting rights provisions -- little progress was made enforcing the 15th Amendment in the five southern states with large black populations:  Alabama, Georgia, Mississippi, North Carolina, and South Carolina.  In 1964, average black registration in the five was 22.5%; in Mississippi, it was 6.7%.

Why did the Act come about?

• The inability of previous civil rights laws to crack white resistance to black voting.
• A changing climate of public opinion outside the Deep South.
• The heroism exhibited by many civil rights activists.
• Johnson’s concern with his place in history as well as his genuine desire to guarantee black voting rights.
• The calculations of Democratic advantage at a point when white southern support for the Democratic national ticket was eroding.  Barry Goldwater’s 1964 sweep of the Deep South underscored the erosion.

Provisions of the 1965 Voting Rights Act

• The key components of the Act were found in sections 4 thru 9.  They were temporary provisions, which were renewed and amended in 1970, 1975, and 1982, the last time for a period of twenty-five years.  They come up again for congressional consideration in 2007.
• In 1965 the most imposing barrier to the black franchise was the literacy test in the seven southern states of Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia.  Even when fairly employed, this test often kept a disproportionate number of blacks from registering, since the South’s unequal school system had provided blacks with an inferior education.
• Section 4 of the Act contained a triggering formula that originally abolished literacy tests for a five year period in any state or subdivision (like a County) that used a test or similar devise as a voting requirement on November 1, 1964, and had a voter registration rate on that date of less than 50% of the voting age residents.  Between 1965 and 1975 six southern states and much of a seventh were the primary areas covered by this formula:  Alabama, Georgia, Louisiana, Mississippi, South Carolina, Virginia, and 40 counties in North Carolina.
• A major expansion of Section 4 coverage occurred in 1975, when an additional language-minority trigger formula was added.  A jurisdiction would be covered according to this formula if more than 5% of the voting-age citizens belonged to a single language minority group (defined as Asian Americans, American Indians, Alaskan natives, and persons of Spanish heritage).  This new formula brought under the umbrella of section 4 the states of Texas, Arizona, and Alaska.
• Section 5 pertained only to the jurisdictions covered because of section 4’s triggering formula.  It froze in place all voting statutes, pending federal approval of proposed changes.  Jurisdictions were required to submit to the Attorney General (who normally had sixty days to object) or to the U.S. District Court for the District of Columbia all proposed changes having to do with voting that were in force before coverage.  Proposed changes would be “precleared” for approval, each jurisdiction separately, after federal scrutiny of the particular facts if and only if the changes did not have the purpose or effect of denying or abridging the right to vote on account of race, color, or (after 1975) language-minority states.
• Section 5 preclearance requirements have, at one time or another, covered all or part of 22 states, although the focus has consistently been on the South.  Today, section 5 covers nine states entirely and counties in seven additional ones.
• Sections 6 and 7 gave the Attorney General authority to appoint federal officials as voting examiners, or “registrars,” who could be sent into jurisdictions covered by section 4 to ensure that legally qualified persons were free to register in federal, state, and local elections.
• Section 8 provided for the Attorney General to assign, when needed, federal observers to oversee the actual voting process in jurisdictions covered by the act.
• Section 9 spelled out the procedures for challenging lists of eligible voters drawn up by federal registrars.
• In South Carolina v. Katzenbach (1966) the Supreme Court found constitutional all those sections of the Act challenged by the state of South Carolina, including most of section 4 and all of section 5.

The Cumulative Effect

• Presidents Nixon (in 1970) and Reagan (1982) did not want to extend the Act, but Congress did anyhow.
• The initial provisions of the Voting Rights Act were those dealing with voter registration.  For almost four years after passage, the Justice Department did not apply the section 5 preclearance mechanism to proposed changes in voting laws that threatened to dilute minority votes.
• The situation changes in 1969 with the Allen v. Mississippi State Board of Elections case.  The 1966 Mississippi legislature, without public debate, passed a package of election laws that would diminish black voting strength.  Among them was a bill requiring at-large election of all county boards of supervisors and boards of education.  A state senator explained that the change from wards to countywide elections would protect "all-white boards and preserve our way of doing business."  Lawyers for black voters argued that these bills should have been cleared with the Justice Department under section 5; Mississippi disagreed.  The Supreme Court held that preclearance was required.  In addition, the Court ruled that Justice Department preclearance decisions were not subject to judicial review.  After the Allen decision, the Justice Department picked up the pace of applying the 1965 Act.
• The Allen decision was very important for two reasons.  First, by interpreting section 5 as requiring preclearance of election changes that could affect black representation as well as black voting, it gave the Justice Department's review powers a much broader scope than they otherwise would have had.  Second, and equally as important, in this decision the Court expanded the notion of vote dilution beyond that developed in the reapportionment cases -- where an individual’s vote was diluted by virtue of unequally populated districts -- to include the dilution of a group’s vote by any number of devises, including submersion in an at-large election system.

Limitations of Voting Rights Act

• It was restricted to a minority of the states.
• Dilutionary laws on the books at the time jurisdictions were first covered by section 5 could not be challenged unless officials proposed changes.  In many instances, dilutionary laws already in place simply remained unchanged.
• When officials decided to pass a dilutionary law they sometimes failed to submit it to the Justice Department or the Washington, D.C. court for preclearance, despite the section 5 requirement to do so.  Once enacted, the changes might escape detection indefinitely.
• Only those proposed electoral changes in covered jurisdictions that were "retrogressive" or in other words, would actually diminish minority-voting strength from what it had been were prohibited under section 5.  Thus if the election law to be supplanted by the proposed change already diluted minority voting strength and the proposed change would not dilute it more, the change was permissible.
• In short, while section 5 was enforced by the Justice Department with growing effectiveness from the early 1970s on, especially with respect to state legislative redistricting, and while it undoubtedly prevented numerous dilutionary devises from being implemented, it was an instrument with serious limitations.  These limitations led plaintiffs and their lawyers to continue to press suits in the federal courts, claiming that election structures violated the constitutional right of the minority group to an equal opportunity to elect candidates of its choice.

Largely drawn from Chandler Davidson and Bernard Grofman, Quiet Revolution in the South:  The Impact of the Voting Rights Act, 1965-1990 (Princeton, NJ:  Princeton University Press, 1994).