Chicago-Kent College of Law | Illinois Institute of Technology



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Voting Rights and Racial Discrimination

Katzenbach v. South Carolina

By: Danny Berliant, Chris Bailey, Sondra Furcajg, & Warren Linam-Church

September 20, 2009

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 African-Americans. 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 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 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. Cruikshank[8], eight men who had murdered a group of African-Americans 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]

While this decision dealt with private interference with voting rights, the 1876 decision US v. Reese[10] 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 Yarbrough[12] 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 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 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 African-Americans.[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 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 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 primaries[28] were also a very effective way of disenfranchising African-Americans. 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. Beale[31] 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 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) saying[33]: “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. Mississippi[36] 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 “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. Classic[39] 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. Allwright[41] decision, in which the US Supreme Court outlawed white primaries.

In 1949, the US Supreme Court Davis v. Schnell[42] 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 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 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 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]

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 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 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 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 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 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]

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 African-American 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 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 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 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]

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 African-American 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]

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]

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 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 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 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 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.

-----------------------

[1] Lane v. Wilson, 307 U.S. 268, 275 (1978).

[2] 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.

[6] Racial Discrimination and the Right to Vote, supra note 3, at 530.

[7] 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.

[10] US v. Reese, 92 U.S. 214 (1876).

[11] 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.

[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.

[16] Racial Discrimination and the Right to Vote, supra note 3, at 534.

[17] 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.

[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.

[27] Guinn v. united States, 238 U.S. 347 (1915); Myers v. Anderson, 238 U.S. 368 (1915).

[28] 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).

[32] Racial Discrimination and the Right to Vote, supra note 3, at 536 and 537.

[33] 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).

[37] Racial Discrimination and the Right to Vote, supra note 3, at 539 and 540.

[38] 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).

[43] Racial Discrimination and the Right to Vote, supra note 3, at 544.

[44] 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.

[47] Racial Discrimination and the Right to Vote, supra note 3, at 547

[48] 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.

[49]South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966).

[50] Id. at 313.

[51] Id.

[52] NICHOLAS KATZENBACH, SOME OF IT WAS FUN, 174 (2008).

[53] 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.

[59] Katzenbach, supra note 4, at 178.

[60] 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.

[67] Id. at 323.

[68] 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.

[74] Id.

[75] South Carolina v. Katzenbach, 383 U.S. at 334.

[76] Id. at 335.

[77] Id.

[78] Id.

[79] Id.

[80] South Carolina v. Katzenbach, 383 U.S. at 336.

[81] 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.

[88] Id.

[89] 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.

[97] Id. at 112.

[98] Id.

[99] Id.

[100] Id.

[101] Id.

[102] Id.

[103] Id.

[104] Id.

[105] Id.

[106] Id. at 136.

[107] 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.

[113] Id.

[114] Id. at 8.

[115] Id.

[116] Justice Department Blocks Discriminatory Voting Practices in Georgia, American Civil Liberties Union, 6/1/2009, available at .

[117] Id.

[118] Id.

[119] Id.

[120] Id.

[121] US Department of Justice Civil Rights Division Voting Section, United States Department of Justice, 9/14/2009, available at .

[122] Id.

[123] Id.

[124] Id.

[125] Id.

[126] Northwest Austin Municipal Utility District v. Mukasey, No. 08-322, 2009 U.S. LEXIS 2503 (2009).

[127] 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.

[138] Id. at 2508.

[139] 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.

[147] Id. at 2523.

[148] 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.

[156] Id. at 2523.

[157] 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.

[164] Id.

[165] 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.

[177] Id. at 4.

[178] 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 (1996).

[184] Id. at 2.

[185] Id.

[186] Id.

[187] Id.

[188] Id.

[189]

[190] Id.

[191] Id.

[192] Id.

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