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The original documents are located in Box 8, folder "Congressional - Voting Rights Act
(1)" of the Philip Buchen Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 8 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
MEMORANDUM FOR MR. BUCHEN
MR. STAN SCOTT
MR. THEIS
pes
S
MR. O'NEILL
MR. WALTER SCOTT
MR. PURCELL
MR. KALLEN
Subject: Voting Rights Act Amendments
The attached just came in from Justice.
We need advice on the following in order to develop the
final package to send to Congress.
(1) Is the draft legislation satisfactory? Yes
(2) Is the Speaker letter satisfactory?
be Should deleted? paragraph Okoxcept 5 of parapraph. the Speaker should letter bedeloted.
(3) Is there to be a Presidential statement?
When will it be given?
Gres. transmet to
(4) Should the Attorney General transmit the draft
and the letter to Congress at the same time
that statement is given?
I will be glad to coordinate your responses and to communicate
them to Justice.
I assume someone in the White House will see to it that
appropriate clearances are obtained there--I have communi-
cated only with those listed on this memo.
Called Redmond
on 1/13/74
W. & Skidmore
(395-4870)
Attachment
to
my to
arzd him engagles
FORD is LIBRARY QERALD
letter threeter
WOH MC.
Office of the Attorney General
our
SEQUITURE
Washington, B. C. 20530
JUSTITIA
The Speaker
House of Representatives
Washington, D.C. 20515
Dear Mr. Speaker:
Enclosed for your consideration and appropriate
reference is proposed legislation entitled the "Voting
Rights Act Amendments of 1975."
This proposal would extend for an additional five
years the basic provisions of the Voting Rights Act of
1965. These provisions, including the requirement that
certain States and political subdivisions submit to the
United States District Court for the District of Columbia
or the Attorney General any changes in voting laws, will
be subject to expiration after August 6, 1975.
The proposal would also extend for an additional
five years the provision which suspends the use of
literacy tests and other similar prerequisites for voting
in all states and subdivisions not subject to such
suspension under section 4 (a) of the 1965 Act.
The Voting Rights Act of 1965 has proved to be an
extremely effective statute. Since its enactment, sub-
stantial progress has been made in safeguarding and
furthering the right to vote. Nonetheless, our experience
indicates the need to extend once more the key sections
of the Act.
We recognize that there may be substantial problems
of discriminatory denial of the right to vote which are
not fully addressed by the Voting Rights Act. We are
examining such matters, and it may be that additional
federal legislation will be necessary. Still, I respect-
fully urge that, in order to avoid the possibility of
expiration of provisions of the Voting Rights Act, the
present proposal be enacted as promptly as possible.
FORD & BERALD LIBRARY
-/2-
The Office of Management and Budget has advised
that enactment of this legislation is in accord with
the program of the President.
Sincerely,
Attorney General
FORD is LIBRARY GERALD
CONGRESS
(NOTE.-Fill in all blank lines ex-
SESSION
H.R.
cept those provided for the date
and number of bill.)
IN THE HOUSE OF REPRESENTATIVES
Mr.
introduced the following bill; which was referred to
the Committee on
A
BILL
To extend the Voting Rights Act of 1965, and for
other purposes.
(Insert title of bill here)
1
Be it enacted by the Senate and House of Representatives of the
2 United States of America in Congress assembled, that this Act may
be cited as the "Voting Rights Act Amendments of 1975. "
Sec. 2. Section 4 (a) of the Voting Rights Act of
1965 (79 Stat. 438; 42 U.S.C. 1973b (a)), as amended by
the Voting Rights Act Amendments of 1970 (84 Stat. 315),
is further amended by striking the words "ten years"
wherever they appear in the first and third paragraphs
and by substituting the words "fifteen years. "
Sec. 3. Section 201 (a) of the Voting Rights Act of
1965 (42 U.S.C. 1973aa (a) ) as added by the Voting Rights
Act Amendments of 1970 (84 Stat. 315), is amended by
FORD i LIBRARY
striking "August 6, 1975" and substituting "August 6, 1980
OFFICE OF THE
DEPUTY ATTORNEY GENERAL
STATE STATE OF JUSTICE SECURITURE QUI PRO DEPARTMENT VILLISTA
1/13/75
To: Phil Buchen
From: Larry Silberman
BERRLO FORD LIBRARY
Office of the Attorney General
PRO
SEQUITUR
DONATA
Washington, D. C. 20530
JUSTITIA
MEMORANDUM FOR THE PRESIDENT
Re: Extension of Voting Rights Act
Attached is a detailed memorandum which sets
forth my reasons for recommending a simple extension
of the Voting Rights Act for five years. Such an
extension would continue for five years (1) a nation-
wide literary test ban; (2) provisions authorizing the
Attorney General to send federal examiners to observe
elections and to register voters, and (3) provisions
forbidding certain states or political subdivisions
from changing their voting laws without prior approval
by the Attorney General or the federal District Court
for the District of Columbia.
In summary, I urge an extension of the nationwide
ban on literary tests because there is evidence that
the use of such tests may continue to perpetuate past
racial discrimination. I have recommended an extension
of the provisions relating to federal examiners and
preclearance review by the Attorney General or District
Court of voting law changes because recent experience
under the Voting Rights Act shows a need for such provi-
sions to prevent racial discrimination in connection
with elections.
WILLIAM B. SAXBE
Attorney General
FORD i LIBRARY 03RALD
Office of the Attorney General
VITITLE AND OH! SEQUITURE
Washington, B. C. 20530
MEMORANDUM FOR THE PRESIDENT
Re: Extension of Voting Rights Act
ACTION MEMORANDUM
The provision of the Voting Rights Act of 1965 (as
amended in 1970) providing nationwide protection against
use of literacy tests as a prerequisite to voting will
lapse on August 6, 1975 unless renewed by new legislation.
Most states and political subdivisions (with the notable
exception of New York) currently subject to the provisions
of the Act providing for federal observers and examiners
and preclearance of voting laws will be eligible to termi-
nate coverage shortly after August 6, 1975.
I recommend that the Administration support a five year
extension of the nationwide literacy test ban and another
five year extension of the special provisions relating to
examiners, observers, and election law preclearance.
I. Background
A. 1965 Act
The Voting Rights Act, enacted in 1965, 1/ "was designed
by Congress to banish the blight of racial discrimination in
voting, which has infected the electoral process in parts of
our country for nearly a century." South Carolina V. Katzenbach,
383 U.S. 301, 308 (1966). It was needed because Congress' prior
efforts, in the Civil Rights Acts of 1957, 1960 and 1964, had
"done little to cure the problem of voting discrimination."
Id. at 313.
1/ The House vote was 328-74; the Senate approved the Act by
a 79-18 vote.
FORD LIBRARY & 076830
- 2 -
The Act provided several uncontroversial general protec-
tions such as an authorization for federal courts which find
racial discrimination in voting practices to authorize the
appointment of federal voting examiners where necessary, and
an authorization for the Attorney General to sue to challenge
the constitutionality of the poll tax. In addition, the Act
provided more important special protections as to states
meeting a prescribed formula, 2/ most of which were southern
states with a history of voter discrimination. 3/ The special
protections were as follows:
(1) In certain instances the Attorney
General could send federal examiners to
register voters (886 & 7) ;
(2) Where there were federal examiners,
the Attorney General could send federal
observers to monitor elections (88) ;
(3) No change could be effected in
voting laws or practices without first
either obtaining a finding from the United
States District Court for the District of
Columbia that the law or practice "does not
have the purpose and will not have the
effect of denying or abridging the right
to vote on account of race or color" or
submitting the law or practice to the
Attorney General without his interposing
an objection to it within 60 days. (85) ;
2/ The formula encompassed states which maintained a test
or device as a prerequisite to voting and in which less than
1/2 the voting age population had registered or voted in
November 1964.
3/ The covered southern states were Alabama, Georgia,
Louisiana, Mississippi, parts of North Carolina, South
Carolina, and Virginia. Except for one Arizona County,
the covered northern areas (Alaska and parts of Arizona,
Hawaii and Idaho) subsequently demonstrated their non-
discrimination in using literacy tests and were removed
from coverage.
BERELO FORD LIBRARY
- 3 -
(4) No person in covered states could
be denied the right to vote for failure to
comply with any test or device. ($4).
States which could demonstrate that they had not used the
tests or devices discriminatorily in the five preceding years
were eligible for exemption from coverage by these special
protections. 5/ Since the Act suspended tests and devices
in those states, the provision meant the states would almost
certainly be able to "bail out" -- that is, remove themselves
from coverage, in August of 1970 or shortly thereafter. The
constitutionality of these provisions was upheld in South
Carolina V. Katzenbach, supra as "a valid means for carrying
out the commands of the Fifteenth Amendment."
The Department of Justice concentrated its efforts
during the first five years of the Act on litigation to end
the forbidden use of tests or devices, to end the use of the
poll tax, and on using examiners, observers and litigation
to insure that registration and voting were conducted fairly.
4/ "Test or device" was defined as:
any requirement that a person as a prerequi-
site for voting or registration for voting
(1) demonstrate the ability to read, write,
understand, or interpret any matter, (2)
demonstrate any educational achievement or
his knowledge of any particular subject,
(3) possess good moral character, or (4)
prove his qualifications by the voucher of
registered voters or members of any other
class.
5/ In Gaston County V. United States, 395 U.S. 285, the
Supreme Court held that imposition of a literacy test was
discriminatory because "throughout the years, Gaston County
[North Carolina] systematically deprived its black citizens
of the educational opportunities it granted to its white
citizens." Therefore Gaston County could not be exempted
from coverage.
BERRED 1988
- 4 -
Black registration and voting increased dramatically during
those years, 6/ and black elected officials increased more
slowly. (See Appendix, Table G-4).
The covered states submitted very few voting law changes
as required by 85. (See App., Tables A-1, A-2). For example,
Alabama, Georgia, Louisiana, Mississippi, North Carolina and
Virginia together submitted a total of two such changes during
the period 1965-67. From 1965 through 1969 the Attorney
General objected to only 24 changes. Not until after the
Supreme Court, in litigation brought under 85, had begun to
define the scope of 35 in 1969 (Allen V. State Board of Elections,
393 U.S. 544), did the Department begin to develop standards and
procedures for enforcing 85.
B. 1970 Act
In January of 1969 Congressman Celler and Senator Mathias
introduced bills to extend the special provisions of the 1965
Act by enlarging from five to ten years the period after which
a state could almost certainly "bail out. " After hearings had
begun the Administration proposed a bill which would have changed
6/ In six covered Southern states (Alabama, Mississippi,
Georgia, Louisiana, South Carolina and Virginia) only 31% of
the black voting age population was registered before enact-
ment of the 1965 Voting Rights Act, but by the 1968 Presidential
election 57% of the black voting age population was registered,
an increase of 740,000. Hearings before Subcommittee No. 5
of Committee on Judiciary, on H.R. 4249, H.R. 5538, et al.,
p. 193. Dramatic examples of change occurred in Mississippi
where black registration increased from 6.7% to 59.8% and in
Alabama where it increased from 19.3% to 51.6%. Id. at 74.
In the South as a whole 52.0% of the black voting age population
voted in 1968 as compared with 44.2% in 1964. (Voting and Regis-
tration in the Election of 1972, Bureau of Census, Series P. 20,
No. 253, Table B.)
7/ The Appendix contains a series of lists and statistical
tables relating to experience under the Voting Rights Act.
This memorandum refers to many of them.
FORD LIBRARY
- 5 -
the literacy test suspension and observer provisions so as
to have nationwide applicability 8/ and would have established
uniform residency requirements for voting in presidential elec-
tions; finally, the bill would have eliminated the preclearance
procedures of $5.
Attorney General Mitchell's testimony relied heavily on
the Gaston County opinion, supra, as supporting nationwide
suspension of literacy tests, both because of court findings
of de jure segregation in the North and because over 4 million
Negroes had migrated from the South between 1940 and 1968.
He also pointed out the discriminatory motives for adoption
of literacy tests in non-covered states (to prevent recent
immigrants from voting), and the irrationality and unfairness
of denying "rights of citizenship" to the undereducated.
(House Hearings, pp. 222-224).
As to 85, Attorney General Mitchell noted that it had been
little used in actual practice and argued that even if the
facts supported "regional legislation" in 1965 they did not
support it in 1970: "As a result of the gains made since 1965,
we should no longer single out any State or region for voting
legislation " (Id. at 227).
The House, by a 208-204 vote, substituted the Administration
bill for the Celler bill which had been reported out by the
Judiciary Committee; it adopted the bill 234-179. The Senate,
however, substituted (51-21) a bill proposed by Senators Scott
and Hart and adopted it (as amended) 64-12. The House agreed
to the Senate substitute, 272-132, and President Nixon signed
it on June 22, 1970.
The 1970 Amendments incorporated the simple extension
proposed by Congressman Celler's bill 9/ and added the nation-
wide suspension of literacy tests for five years, as proposed
by the Administration. 10/ The ten sponsors of the substitute
argued that "the Voting Rights Act of 1965 has been the most
effective civil rights legislation ever enacted by the Congress,"
8/ Literacy tests would have been suspended for five years.
9/ The formula was expanded, however, to include states using
tests or devices, in which less than 1/2 the voting age population
had registered or voted in November 1968.
10/ They also addressed the 18-year-old vote and residency
requirements.
FORD LIBRARY
- 6 -
but that "more time is needed to accomplish what finally must
be done to implement the Fifteenth Amendment, by preserving
the only voting rights law that has really worked. " 116 Cong.
Rec. 5520. As to the expansion of the test and device
suspension to all states, the sponsors stated:
Even though these other areas have no
recent history of discriminatory abuses
like that which prompted enactment of the
1965 Act, this extension is justified for
two reasons: (1) because of the discrimi-
natory impact which the requirement of
literacy as a precondition to voting may
have on minority groups and the poor; and
(2) because there is insufficient relation-
ship between literacy and responsible,
interested voting to justify such a broad
restriction of the franchise.
116 Cong. Rec. 5521.
II. Considerations As to Whether to Seek
Extension
A. Nationwide ban on tests and devices
I believe that almost all considerations relating to the
nationwide ban on tests and devices support the extension of
that ban for five years.
1. Constitutionality.
The Supreme Court unanimously upheld the constitutionality
of the five year nationwide suspension of literacy tests in
Oregon V. Mitchell, 400 U.S. 112. Justice Black, without rely-
ing at all on the fact that the ban was temporary, stated in
the lead opinion "that Congress, in the exercise of its power
to enforce the Fourteenth and Fifteenth Amendments, can prohibit
the use of literacy tests or other devices used to discriminate
against voters on account of their race in both state and federal
elections." 400 U.S. at 118. Of the five opinions in the case,
all of which upheld the nationwide ban, only Justice Harlan's
comment that "the fact that the suspension is only for five
years will require Congress to re-evaluate at the close of that
period" attaches any significance to the temporary nature of
the ban. Appendix E is a legal memorandum setting forth the
constitutional basis for the extension.
FORD & LIBRARY
- 7 -
2. Experience under the 5-year
nationwide suspension
Oregon, which challenged the suspension of tests and
devices, subsequently repealed its literacy test requirements,
as have Alaska, Arizona, California, Hawaii, Virginia,
Washington, and Wyoming. Only 14 states still have laws
providing for tests or devices as a prerequisite to voting. 11/
(These would, of course, become effective again if the ban is
not extended.) Attorney General Mitchell noted in 1969 that
the fact that 30 states had no literacy test "would appear to
imply substantial national sentiment that they are not necessary
for an effective electoral process. (House Hearings, p. 224).
That argument is strengthened by the repeal of literacy tests
in eight states.
Second, at the time the 1970 Act passed the main judicial
basis for the nationwide ban was Gaston County V. United States,
supra, Since then several cases have been decided which either
explicitly (see generally Coalition for Education V. Board of
Elections, 370 F. Supp. 42 (S.D. N.Y. 1974)) or implicitly
(Lau V. Nichols, 414 U.S. 563) recognize that language require-
ments may unlawfully discriminate on the basis of national
origin. In New York, for example, Spanish-surnamed persons
have, on the average, less than a 9th grade education, as compared
with 12 grades for whites and 10.8 for blacks. The growing
recognition of the special problems of Spanish-surnamed citizens
argues for extension of the ban.
Third, we know of no adverse effects which have even been
alleged to have occured as a result of the nationwide ban on
tests and devices. Thus, the states' interest in reviving tests
or devices is so minute that it must be asked whether they could
constitutionally do so, in light of the Court's recognition of
the right to vote as fundamental. Dunn V. Blumstein, 405 U.S.
330.
Fourth, revising tests or devices would present the
possibility of disfranchising thousands of voters who have been
participating in the election process as a result of the Voting
Rights Act.
11/ They are Alabama, Connecticut, Delaware, Georgia, Idaho,
Louisiana, Maine, Massachusetts, Mississippi, New Hampshire,
New York, North Carolina, Oklahoma, and South Carolina. See
Appendix, Table F-3.
BERRAD FORD LIBRARY
- 8 -
B. Regional Provisions
In my view a good case exists for a further five year
extension of the special provisions relating to states falling
within the special coverage formula of 84, although that case
is not quite as compelling as the nationwide test ban.
1. Constitutionality
If there is a factual basis for continuing them, the
decision in South Carolina V. Katzenbach, supra, clearly
supports the constitutionality of an extension of these pro-
visions. The precedents are set forth in Appendix E.
2. Experience under the Act
There has unquestionably been progress made in the covered
states. They rank very high in terms of black elected officials
(see Appendix, Tables G-1, G-2, G-3, G-6) and they have greatly
increased black voter participation. For example, Mississippi
had no black elected officials in 1965, when only 6.7% of its
eligible blacks were registered; today it has 191 black elected
officials, and at least 59.3% of its eligible blacks are
registered. But if such statistics are to be a gauge of success,
we must recognize that while Mississippi's population is over
36% black, only 4% of its elected officials are black. A
higher proportion of eligible whites (69.6%) is registered.
This pattern persists in many of the covered states. 12/
Another measure would be the extent to which the Attorney
General has felt compelled to invoke the provisions of the Act.
Five new counties have been designated as needing federal
examiners since 1970, as compared with 64 counties in the first
five years of the Act. But, as Appendix, Table D-1 shows, the
12/ For example, the percents of eligible persons who are
registered to vote in other covered Southern states are
estimated to be:
White
Black
Alabama
78.5
54.6
Georgia
68.7
64.2
Louisiana
77.7
56.6
North Carolina
60.6
44.3
South Carolina
49.7
45.8
Virginia
59.6
52.0
BERALD FORD LIBRARY
- 9 -
Attorney General has continued to make regular use of federal
observers, although not on as massive a scale as during the
1960s. 13/ Because racial politics have continued to be hot
in some political subdivisions, we are often asked to send
observers by both the white and black communities.
In some counties, old patterns of racial discrimination
in election procedures have required repeated litigation. For
example, we have had to file three voter discrimination suits
against Marshall County, Mississippi officials since 1971.
In the first suit, officials had rejected a qualifying petition
of a black candidate for office because of a technical defect
in the petition, but accepted the defective petition of a white
candidate. In the second suit, in 1973, we showed that regis-
tration officials had placed 253 white persons on the rolls in
an illegal fashion and had sent records of a large number of
black registered voters to the wrong district, so that they
could not vote. In the third suit, which is still pending,
we allege that registration officials have discriminatorily
failed to register qualified black applicants. We have filed
19 suits under the Voting Rights Act since the 1970 Amendments
went into effect (as compared with 22 between 1965 and enact-
ment of the 1972 Amendments).
Experience under 85 is that although most submissions have
not been objected to, the number that has been is significant:
184 objections were lodged out of the total of 4068 submissions
13/
SUMMARY BY YEAR OF
ELECTIONS COVERED BY FEDERAL OBSERVERS
(1966-Sept. 10, 1974)
YEAR
NO. ELECTIONS
NO. OBSERVERS
1966
12
1919
1967
5
1309
1968
14
1093
1969
3
239
1970
7
370
1971
6
1055
1972
13
465
1973
0
0
1974
6
218
FORD i LIBRARY
- 10 -
received between 1965 and June 1, 1974. Over 150 of those
objections have been lodged during the past four years. We
objected to more submissions in the first six months of 1974
(20) than during any year from 1965 (0) through 1969 (15).
Notwithstanding the clear requirement that voting changes in
covered states must have preclearance, we have had to file
ten suits (9 since 1970) to prevent the application of non-
cleared laws. Just recently we discovered as a result of a
random check of state laws that Alabama had failed to submit
161 of the 251 election law changes the legislature enacted
in 1971. As black registration, voting, and attempts to run
for office have grown, changes in election laws have assumed
an increasingly important, though subtle and complex, role as
potential engines of discrimination. The Supreme Court, in
Allen, supra, and in Perkins V. Matthews, 400 U.S. 379 (1971),
has therefore held that 85 applies to such election law changes
as reapportionment and annexation as well as to voting and
registration requirements. Appendix, Table A-3, gives an idea
of the range of objectionable laws over the past five years.
Some of our objections were state-wide, and some local.
Louisiana is an example of a state-wide objection. In 1971,
the Attorney General objected under Section 5 to the state's
reapportionment of both houses of its legislature. The
reapportionment plans submitted contained several instances
of patent racial gerrymandering which had the effect of reducing
black voting strength.
Twiggs County, Georgia is a recent example of a covered
jurisdiction in which black potential voters are a substantial
minority (49.3%) ; after Department of Justice enforcement action
and a private voter registration drive had increased black
registration in two county commissioner districts, the county
shifted from county elections to at-large elections. The
Attorney General objected under 85, but the county implemented
the at-large plan in 1972 anyway, necessitating our filing a
suit to enjoin the violation of $5. As recently as August 13,
1974 another Georgia county held an election under a voting
change to which the Attorney General had objected. Suit is
pending.
While the Act has thus been very effective and has markedly
increased black political participation in covered states,
problems of discrimination have been sufficiently recurrent in
the past four years to suggest that 85 and the examiner and
observer provisions are still needed.
GEAL FORD LIBRARY
- 11 -
3. Fairness to the Covered States
The strongest, most vehement argument made against the
special provisions has been that they discriminate regionally,
against the South. As Justice Harlan phrased the argument
in his dissent in Allen V. Board of Elections, 393 U.S. 544,
586:
"the statute, as the Court now
construes it, deals with a problem that
is national in scope. I find it especially
difficult to believe that Congress would
single out a handful of States as requiring
stricter federal supervision concerning
their treatment of a problem that may well
be just as serious in parts of the North
as it is in the South."
That argument was advanced in 1970 by the Administration, and
the Congress rejected it, as the Supreme Court had earlier
done. South Carolina V. Katzenbach, supra. In any event,
if the facts warrant the continued application of the special
provisions to presently covered states, the fact that other
states should arguably also be covered would not justify
allowing the provision to lapse entirely. 14/
CONCLUSION
I would recommend that both the nationwide literacy ban
and the special provisions for covered states should be
extended for five years.
WILLIAM B. SAXBE
Attorney General
14/ A new sort of regional discrimination would occur if the
Act were not extended: the southern states whose history of
discrimination prompted the provisions could bail out, but
New York and other northern jurisdictions brought under the
Act in 1970 would continue to be subject to it until at least
1980.
BERALD FORD LIBRAN
Voting Rights act
January 10, 1975
MEMORANDUM FOR: DONALD RUMSFELD
FROM:
PHILIP BUCHEN
On January 10, I asked Paul O'Neill to have OMB
prepare a draft bill to extend the Voting Rights Act,
so that the President may submit it to Congress as
early as January 14.
CC: Paul O'Neill
FORD i LIBRARY GERALD
FOR IMMEDIATE RELEASE
JANUARY 27, 1975
Office of the White House Press Secretary
THE WHITE HOUSE
THE WHITE HOUSE MADE PUBLIC TODAY THE
FOLLOWING LETTER FROM THE PRESIDENT TO
THE SPEAKER OF THE HOUSE OF REPRESENTATIVES
AND THE PRESIDENT OF THE SENATE
Dear Mr. Speaker: (Dear Mr. President:)
Enclosed for your consideration and appropriate
reference is proposed legislation entitled the
"Voting Rights Act Amendments of 1975.'
This proposal would extend for an additional five
years the basic provisions of the Voting Rights
Act of 1965. These provisions, including the re-
quirement that certain States and political sub-
divisions submit to the United States District
Court for the District of Columbia or the Attorney
General any changes in voting laws, will be subject
to expiration after August 6, 1975.
The proposal would also extend for an additional
five years the provision which suspends the use
of literacy tests and other similar prerequisites
for voting in all states and subdivisions not
subject to such suspension under section 4(a) of
the 1965 Act.
The Voting Rights Act of 1965 has been an extremely
effective statute. Since its enactment, substantial
progress has been made in safeguarding and furthering
the right to vote. Nonetheless, our experience in-
dicates the need to extend once more the key sections
of the Act.
Sincerely,
GERALD R. FORD
The Honorable
The Speaker
U.S. House of Representatives
Washington, D.C. 20515
The Honorable Nelson A. Rockefeller
President of the Senate
Washington, D.C. 20510
more
GERALO FORD LIBRARY
2
A BILL to extend the Voting Rights Act of 1965, and
for other purposes.
Be it enacted by the Senate and House of
Representatives of the United States of America in
Congress assembled, that this Act may be cited as the
"Voting Rights Act Amendments of 1975. 11
Sec. 2. Section 4(a) of the Voting Rights Act of
1965 (79 Stat. 438; 42 U.S.C. 1973b(a)), as amended by
the Voting Rights Act Anendments of 1970 (84 Stat. 315),
is further amended by striking the words "ten years
wherever they appear in the first and third paragraphs
and by substituting the words "fifteen years. "
Sec. 3. Section 201(a) of the Voting Rights Act of
1965 (42 U.S.C. 1973aa(a)), as added by the Voting Rights
Act Amendments of 1970 (84 Stat. 315), is amended by
striking "August 6, 1975 and substituting "August 6, 1980. if
####
GERALO FORD LIBRARY
February 10, 1975
Dest Enver
Thank you for your very could letter to the
President concerning extension of the Vaters
Rights Act of 1965.
I weat to assure you that your lotter will be
called to the President's attention st the
carliest opportunity. la addition, copies will
be shared with the appropriate Presidential
advisers, I am cortain your recommendations
will be fally reviewed.
With kindeet regards,
Sincerely,
May
Mart L. Friedersdorf
Assistant to the President
The Honorable David C, Troon
House of Representatives
Washington, D.C. 20515
bee: w/incoming to Geoff Shepard for further action.
bee: w/incoming to Robert Hartmann - - for your Information.
to Philip Buchen - for your information.
MLF:EF:VO:ve
TURD
GERALD LIBRARY
2-10
DAVID C. TREEN
TELEPHONE: CODE 202: 225-4031
THIRD DISTRICT, LOUISIANA
DISTRICT OFFICES:
FEDERAL BUILDING, SUITE 107
MEMBER:
COMMITTEE ON
ARMED SERVICES
Congress of the United States
HOUMA, LOUISIANA 70360
TELEPHONE: 504-876-3033
MEMBER:
COMMITTEE ON
MERCHANT MARINE AND
aun
4900 VETERANS MEMORIAL BOULEVARD
house of Representatives
METAIRIE, LOUISIANA 70002
TELEPHONE: 504-889-2303-4
FISHERIES
Washington, D.C. 20515
210 EAST MAIN STREET
NEW IBERIA, LOUISIANA 70560
MEMBER:
TELEPHONE: 318-365-7149
REPUBLICAN TASK FORCE ON
February 6, 1975
ENERGY AND RESOURCES
riche signature
The President
The White House
Washington, D. C. 20500
ME
Dear Mr. President:
It has been a privilege to support you on most
of your major proposals to the Congress. You know that
you can count on me to be in your corner most of the time.
But, with all due respect, Mr. President, I am very distrubed
by your stated intention to request the Congress to extend
for another five years the Voter Rights Act of 1965. This
was one of the most abominable pieces of legislation ever
adopted by the U. S. Congress.
I do not quarrel with the fact that legislation
to ensure equal voting opportunities be extended to all
persons regardless of race. But the methods provided in
this legislation, for the most part, are indefensible.
It is my fervent hope that you will tell the
Congress that the Voter Rights Act, after a life of ten
years, has served its purpose and that no extension is
needed. Should you feel, however, that you must recommend
an extension, I sincerely hope that your recommendations
will parallel the positions that you took in 1965 and 1969
as a Member of the House. On those occasions you came out
forcefully against:
(1) Automatic triggering devices. Citing the
inequity of automatically requiring federal registrars and
observers in states which failed an arbitrary voter regis-
tration/voter participation test, you pointed out to the
House on April 5, 1965 that: "Low registration or voting
FORD & LIBRARY GERALD
The President
Page 2
February 6, 1975
may be equally credited to voter apathy - especially in areas
where one political party predominates - or to misleading
census figures which include persons who are nonresidents
(such as military personnel and college students)
(2) Perpetually different standards for states
targeted by the 1965 Act. On December 11, 1969, you pointed
out the injustice of permitting 43 states to adopt whatever
voting qualifications they chose, including literacy tests,
while forbidding such freedom for five states where one million
black voters had registered between 1965 and 1969.
(3) Prior federal approval of election law changes.
In cosponsoring the McCulloch substitute in 1965, you claimed
among its advantages that it did not "degrade a state or smaller
governmental body in a state to the problem of coming to the
Nation's Capital and putting itself at the foot of the federal
judiciary in the District of Columbia."
(4) Placing the burden of proof on the states. Your
proposal in both 1965 and 1969 would have placed the burden on
the Attorney General to establish the need for federal super-
vision, rather than on the states to establish that grounds
existed to terminate such supervision.
As you told the House in December 1969, the presence
of a million newly enfranchised voters in the targeted states
was a stronger guarantee against future discrimination than an
extension of the 1965 Act could ever be. A majority of the
House agreed with you at that time. That is even truer today
than it was five years ago.
I trust you will again exercise your leadership to
restore to all states their constitutional authority to conduct
elections and register voters. You will have my utmost support
in that effort.
With best wishes, I am
Respectfully
Dave Jreen DAVID C. TREEN
Member of Congress
DCT/fw
hm
Mr. Kallen
Mr. Purcell
Mr. Buchen
Mr. Lazarus
William V. Skidmore
3/4/75
May I have your comments on the attached
Justiceetestimony ASAP today.
Thanks.
3/4/75
I checked with Dawn --
Mr. Lazarus did receive a copy
of the
mr attached. B. Biares wents he doesit have the bothing Time
SPECIAL
FORD is LIBRARY 01RALD
MASTERS
Purcell
DRAFT 3/2/75 ng
TESTIMONY OF J. STANLEY POTTINGER
BEFORE THE SUBCOMMITTEE ON CIVIL AND
CONSTITUTIONAL RIGHTS, COMMITTEE ON THE
JUDICIARY, U.S. HOUSE OF REPRESENTATIVES
MARCH 5, 1975
the
I am pleased to appear before this Subcommittee
this morning to testify on the extension of those
provisions of the Voting Rights Act which are due
to expire later this year. Accompanying me here
this morning are Deputy Assistant Attorney General
James P. Turner and Gerald Jones, the Chief of our
Voting Section, who are responsible for administering
the Act, and Brian Landsberg, Chief of our Appellate
Section and Anne Clarke, Director of our Research
Unit, who have assisted in our study of the issues
surrounding the proposed extension. 41 In my testimony
I will describe the facts and reasoning which support
President Ford's recommended bill, H.R. 2148, which
was introduced by Congressmen Hutchinson, McClory,
Railsbach, Fish and Cohen; or and I will also discuss
H.R. 939, which Chairman Rodino and Chairman Edwards
have introduced. In addition, just last week H.R. 3247
and 3501 were introduced. These bills propose that
is
FORD
For
DRAFT
ERALD
LIBRARY
by
THE WHITE HOUSE
WASHINGTON
March 6, 1975
MEMORANDUM FOR:
PHIL BUCHEN
FROM:
KEN LAZARUS
SUBJECT:
Pottinger Testimony on the
Voting Rights Act
After reviewing the proposed testimony of Stan Pottinger,
Assistant Attorney General, Civil Rights Division, to be
presented before the House Judiciary Subcommittee on Civil
and Constitutional Rights yesterday, I communicated my
comments to Bill Skidmore at OMB. I interposed no objection
to the testimony but made the mild suggestion that the
testimony might overstate the case for an extension of the
Voting Rights Act.
My private views are that this type of testimony is unnecessarily
offensive to Southerners and can be counterproductive in terms
of efforts to extend the Act. I would hope that representatives
of the Department of Justice will temper their views when the
matter is considered in the Senate. If the occasion presents
itself, you might want to discuss this further with our new
Attorney General.
GEBAL FORD LIBRARY
THE WHITE HOUSE
"Noting fell
for Rights
WASHINGTON
April 28, 1975
MEMORANDUM FOR:
PHIL BUCHEN
FROM:
KEN LAZARUS
SUBJECT:
Voting Rights Act
I have reviewed the attached draft of Stan Pottinger's
testimony before the Senate Judiciary Subcommittee on
the Voting Rights Act Extension. I do not believe it
warrants any comment.
On the question of the simple extension of the Voting Rights
Act, this testimony tracks his earlier statement in the
House. On the question of expansion of the Act to cover
Chicanos, Pottinger finds no necessity for such an expansion.
Attachment
FORD is LIBRARY 038470
THE WHITE HOUSE
WASHINGTON
Kon Lazarus:
Kindly review
this and advise
what com ments
should be made
to Dick Parsons.
P.
2312 to FORD
THE WHITE HOUSE
WASHINGTON
April 25, 1975
MEMORANDUM FOR:
Phil Buchen
Max Friedersdorf
FROM:
Dick Parsons
SUBJECT:
Voting Rights Act
Attached is a copy of Stan Pottinger's
proposed testimony before the Senate
Judiciary Subcommittee on Constitutional
Rights concerning the Voting Rights Act.
Any problems ?
GERALD FORD LIBRARY
OPTIONAL FORM NO. 10
JULY 1973 EDITION
GSA 101-11,6
UNITED STATES GOVERNMENT
Memorandum
A. Mitchell McConnell
TO
:
Deputy Assistant Attorney General
DATE:
APR 2 4 1975
Office Of Legislative Affairs
FROM :
Brian K. Landsberg, Chief
BKL: bhj
Appellate Section
D.J. 166-01
SUBJECT:
Voting Rights Act
Stan Pottinger asked that I send you our
proposed draft of his testimony before the Senate
Judiciary Subcommittee on Constitutional Rights,
which he is scheduled to deliver on April 29.
Because of the shortness of time (we are supposed
to provide copies of the statement to the subcommittee
by tomorrow) I am sending it before it has received
Mr. Pottinger's final review and before it has been
typed in final.
The statement pretty much tracks his statement
before the House Subcommittee, except for Parts III,
IV and V. The only exhibits I am sending with this
draft are those which are not attached to the House
testimony.
FORD is 0ERALD LIBRARY
Buy U.S. Savings Bonds Regularly on the Payroll Savings Plan
5010-110
DEPARTMENT OF JUSTICE
FOR RELEASE AT 9:30 A.M. EDT
TUESDAY, APRIL 29, 1975
DRAFT
STATEMENT
BY
J. STANLEY POTTINGER
ASSISTANT ATTORNEY GENERAL
CIVIL RIGHTS DIVISION
Before The
SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS
Of The
SENATE JUDICIARY COMMITTEE
On
THE EXTENSION OF THE VOTING RIGHTS ACT
9:30 A.M.
Tuesday, April 29, 1975
WASHINGTON, D.C.
FORD : LIBRAR GERALD
Exhibet 35 will he delivered tomorrow.
TESTIMONY OF J. STANLEY POTTINGER
BEFORE THE SUBCOMMITTEE ON CONSTITU-
TIONAL RIGHTS, COMMITTEE ON THE
JUDICIARY, U. S. SENATE
APRIL 29, 1975
I am pleased to appear before the Subcommittee
this morning to testify on the extension of those
provisions of the Voting Rights Act which are due to
expire later this year. Accompanying me here this
morning are Deputy Assistant Attorney General James P.
Turner and Gerald Jones, the Chief of our Voting Section,
who are responsible for administering the Act, Brian
Landsberg, Chief of our Appellate Section, Cynthia
Attwood, an Attorney in that Section and Anne Clarke,
Director of our Research Unit, who have assisted in our
study of the issues surrounding the proposed extension.
In my testimony I will describe the facts and
reasoning which support President Ford's recommended bill,
S. 407, which was introduced by Senators Griffin, Mathias,
and Scott, and I will also discuss S. 1279, which Senators
Hart and Scott have introduced and H.R. 6219, the bill under
consideration now by the House Judiciary Committee. In
addition, Amendments to S. 1279 have been introduced, proposing
FORD :- LIBRARY 038830
2
additional changes should be made in the Act, primarily
to protect further the rights of persons of Spanish
heritage and citizens whose primary language is other
than English. In my view, as explained in our legal
memorandum which is attached as Exhibit 32 , the Voting
Rights Act, in its various protections against discrimi-
nation on account of race or color, does to some extent
already cover Mexican-Americans, Puerto Ricans and
Native Americans. The possible need for further protec-
tion, however deserves careful consideration by the Sub-
committee, and I am pleased to see that representatives of
these groups and other persons concerned with this question
are testifying in these hearings. My testimony will outline
the considerations of which we are presently aware on this
issue, and which we believe are relevant to these proposals.
The Department of Justice helped draft the Voting
Rights Act of 1965: The Act was based in part on facts
and case law developed by the Department under prior voting
rights legislation, and the primary task of federal enforce-
ment of the Act is placed on the Department. The Civil
- 3 -
Rights Division - particularly our Voting Section --
has therefore accumulated a large amount of information
which I hope the Subcommittee will find helpful in assess-
ing the need for any extension of the Voting Rights Act.
Exhibits which the Division's staff has developed will be
submitted with my testimony, and I will refer to those
exhibits in the course of testifying this morning.
The Voting Rights Act is unusual legislation in
several respects. First, it attacks a problem which,
prior to 1965, had been allowed to sap the strength of
our democratic form of government: the denial and abridg-
ment of the right to vote based on race. A rereading of
the legislative history of the Act and a rereading of the
Supreme Court's decision upholding the
GRD
LIBRARY
- 4 -
Act, South Carolina V. Katzenbach, 383 U.S. 301, reveals
the systematic and thorough use of every conceivable
device to stop black citizens in many of the covered
states from having a fair voice in their government.
The second unusual aspect of the Act is that,
because of this prior history, Congress enacted what the
Supreme Court has called "a complex scheme of stringent
remedies aimed at areas where voting discrimination has
been most flagrant." Id. at 315. Justice Black argued
in dissent in South Carolina V. Katzenbach that §5 of
the Act "so distorts our constitutional structure of
government as to render any distinction drawn in the
Constitution between state and federal power almost
meaningless. " Id. at 358. While I disagree with that
characterization of §5, I think it is fair to say
that §5 does represent a substantial departure from
ordinary concepts of federalism.
OLRALD turd LIBRARY
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Finally, the Act has been unusually effective.
It brought about a prompt, visible, dramatic increase
in political participation by the black citizens in the
South whose prior exclusion from the political process
it was primarily designed to remedy. The results have
fortunately been a general acceptance in the covered
States of the resulting franchise of blacks, with
important exceptions, of course, that require the con-
tinuing attention which extension would afford.
The questions before us this morning are whether,
in light of present needs, in light of the successes of
the Voting Rights Act to date, and in light of the prin-
ciples of federalism, the Act should be extended. If
answered affirmatively, a secondary concern is for how
long it should be extended. To properly consider these
questions we should examine the workings of the Act. Has
it proved workable? Has it promoted nondiscrimination in
voting? Does experience under it warrant extending its
special coverage provisions to more fully protect the
rights of other groups? Has it been so successful that
it is no longer needed? How much of a strain of federalism
has resulted? I believe that the results of such an exami-
nation, together with an examination of the judicial and
- 6 -
legislative precedents, strongly support the Administration's
proposed five-year extension, S. 407. I will address
these questions, first as to the extension of §4 (a) of the
Act, and second as to § 201 (a) of the 1970 Amendments; and third as
to the various amendments to expand the coverage of the Act.
I. Section 4 is the central provision of the
1965 Act, because that section determines which
states shall be subject to the special provisions
of the Act relating to the suspension of tests or
devices, pre-clearance of changes in voting laws, list-
ing of voters by federal examiners, and the use of federal
observers to monitor the conduct of elections. Section
4(b), as amended in 1970, provides for coverage of states
and political subdivisions which the Attorney General deter-
mines maintained as a prerequisite for voting any test or
device on November 1, 1964 or November 1, 1968 and which
the Director of the Census certifies had less than 50%
voter participation or registration in the Presidential
election in 1964 or 1968, respectively. The Supreme
Court, in upholding the provision of (b) of the 1965
Act that these determinations are not reviewable said:
FORD LIBRARY
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"the findings not subject to review consist of objective
statistical determinations by the Census Bureau and a
routine analysis of state statutes by the Justice Depart-
ment. " South Carolina V. Katzenbach, 383 U.S. 301, 333.
Pursuant to these provisions 7 states and 46 political
subdivisions were initially determined to come under the 1965
Act. Following extension of the Act in 1970, an additional 62
political subdivisions were covered (including 8 political
subdivisions which had been determined to be covered in 1965
but had subsequently "bailed out" under $4(a)). Exhibit 1
lists the states and subdivisions covered under §4 of the
Act in 1965 and 1970. While most of the covered jurisdictions
are located in the South, some are located in the North and
West, particularly in areas with large Native American or
Spanish-speaking populations, such as Arizona and New York.
The provision of §4 which leads to today's
hearing states that jurisdictions covered by virtue
of the certifications of the Attorney General and
Director of the Census may escape coverage if:
FORD i LIBRARY DIRECT
- 8 -
the United States District Court for the
District of Columbia in an action for a
declaratory judgment brought by such State
or subdivision against the United States
has determined that no such test or device
has been used during the five years preceding
the filing of the action for the purpose or
with the effect of denying or abridging the
right to vote on account of race or color:
Provided, that no such declaratory judgment
shall issue with respect to any plaintiff
for a period of five years after the entry
of a final judgment of any court of the
United States, other than the denial of a
declaratory judgment under this section,
whether entered prior to or after the
enactment of this Act, determining that
denials or abridgments of the right to
vote on account of race or color through
the use of such tests or devices have
occurred anywhere in the territory of
such plaintiff.
An action pursuant to this subsection
shall be heard and determined by a court
of three judges in accordance with the
provisions of section 2284 of title 28 of
the United States Code and any appeal shall
lie to the Supreme Court. The court shall
retain jurisdiction of any action pursuant
to this subsection for five years after
judgment and shall reopen the action upon
motion of the Attorney General alleging that
a test or device has been used for the pur-
pose or with the effect of denying or
abridging the right to vote on account of
race or color.
If the Attorney General determines that
he has no reason to believe that any such
test or device has been used during the five
years preceding the filing of the action for
the purpose or with the effect of denying or
abridging the right to vote on account of
race or color, he shall consent to the entry
of such judgment.
FORD
GERALD
LIBRARY
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Since the passage of the Act two states and 14
political subdivisions have sought such a judgment.
Of these, one state and 12 political jurisdictions
have obtained such a judgment (including three New
York counties which have since been placed back under
the special coverage of the Act by motion of the
Attorney General), and four such judgments have been
denied. Actions under this so-called "bail-out"
provision are listed in Exhibit 2. Since that
provision, as it currently reads, requires entry of
a declaratory judgment in favor of the moving state or
subdivision if it has not used a test or device in a.
discriminatory fashion during the ten years preceding
the action, those jurisdictions which became covered
in August of 1965 and which were consequently required
to suspend entirely the use of tests or devices should
be able to establish their eligibility to "bail out" in
August 1975, assuming that they in fact suspended all
use of tests or devices as required. For jurisdictions
first covered in 1970, the ten years will not expire
until at earliest 1980.
FORD i OFFACO LIBRARY
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Section 4 suspends the use of tests or devices
by covered jurisdictions, but since § 201 (a) of the
1970 Amendments imposed a nationwide suspension of
tests or devices, I will discuss the suspension later
in this statement, when we come to 201(a). I now
want to turn to the other consequences of coverage
under §4: preclearance of changes in voting laws;
federal examiners; and federal observers.
A. Preclearance
Section 5 of the Act requires preclearance of
changes in the voting laws of jurisdictions covered by
$4. The jurisdictions must either obtain from the
United States District Court for the District of
Columbia a declaratory judgment "that such [changed]
qualification, prerequisite, standard, practice, or
procedure does not have the purpose and will not have
the effect of denying or abridging the right to vote
on account of race or color" or submit the change to
the Attorney General. If the Attorney General does
not object to the submission within sixty days, the
change may be enforced by the submitting jurisdiction.
The Supreme Court, in upholding the constitutionality
of §5, said:
LIBRARY FORD
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Congress knew that some of the States
covered by 4(b) of the Act had resorted
to the extraordinary stratagem of contriv-
ing new rules of various kinds for the
sole purpose of perpetuating voting dis-
crimination in the face of adverse federal
court decrees. Congress had reason to
suppose that these States might try simi-
lar maneuvers in the future in order to
evade the remedies for discrimination
contained in the Act itself.
South Carolina V. Katzenbach, 383 U.S. 301, 335.
The Congressional hearings on the 1970 Amendments
to the Voting Rights Act reflect that §5 was little
used prior to 1969 and that the Department of Justice
questioned its workability. Not until after the
Supreme Court, in litigation brought under §5, had
begun to define the scope of §5 in 1969 (Allen V. State
Board of Elections, 393 U.S. 544) did the Department
begin to develop standards and procedures for enforcing
$5. Congress gave a strong mandate to us to improve the
enforcement of §5 by passing the 1970 Amendments. We
subsequently promulgated regulations for the enforcement
of §5 and directed more resources to $5, so that today
enforcement of §5 is the highest priority of our Voting
Section. Thus, most of our experience under §5 has
occurred within the past five years. Although
FORD is LIBRARY BENALO
- 12 -
4476 voting changes have been submitted under Section 5
since 1965, between 1965 and 1969 the number of changes
submitted was only 323 or 7% of all the Department has
received. About 93% of all changes have been submitted
since 1970. The year 1971 was the peak year for changes
reviewed (1, (118) and objections entered (50), a natural
occurrence in light of the upcoming elections and redis-
trictings following the 1970 Census. The past three years,
however, have continued to require the Department to review
a high number of changes (between 850-1000 a year). See
Exhibit 3. /
The following sets forth the states in descending
order by numbers of changes submitted. The corresponding
numbers of objections entered are also listed.
Changes
Objections
S. Carolina
941
19
Virginia
891
10
Georgia
809
37
Louisiana
632
37
Mississippi
428
29
Alabama
331
22
N. Carolina
194
6
Arizona
149
2
New York
88
1
California
12
0
Wyoming
1
0
Idaho
0
0
4,476
163
Exhibit 4 classifies changes into seven basic
types: redistricting, annexation, polling place, precinct,
* / This Exhibit has been updated through April 13, 1975,
in Exhibit 39.
LIBRARY GERALD F. FORD
13
reregistration, incorporation and a broad category,
"election laws", which includes such changes as numbered
posts, staggered terms, and candidate filing fees. As
Exhibit 4 shows, annexations, polling place changes and
redistrictings are the types of laws most frequently
reviewed.
A total of 163 objections have been entered since
1965. Exhibit 5 lists the objections by state and Exhibit
6 sets forth Section 5 objection totals by state and year.
A precise count of the number of changes involved is diffi-
cult because of the varying compositions of the laws sub-
mitted. However, these 163 objections have involved about
300 changes, e.g. one redistricting plan may involve at-
large elections, multi-member districts, numbered posts and
a majority requirement, while another may only involve
numbered posts.
The highest number of objections was in 1971 (50),
followed by 32, 27 and 30 in the next three years. Thus,
it is apparent that the rate of objections has been about
the same the past three years, indicating the continuing
need for Section 5 review.
FORD LIBRARY
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Approximately one-third of our objections have
been to redistrictings on the state, county and city
levels. In contrast, only 9 of our objections have
related to annexations, which comprise the highest num-
ber of changes submitted.
These statistics tell only part of the story. The
substance which lies behind them is even more important.
The provisions of Section 5 have proved more complex than
was imagined in 1965. It was not until the publication of
the Department of Justice regulations in September of 1971
that states and political subdivisions were provided with
a definite, concrete list of the types of legislation and
administrative actions which constituted voting changes
within the meaning of Section 5 (see 28 C.F.R. $51.4). The
regulations are attached as Exhibit 7.
Although the publication of the Attorney General's
guidelines, other Department activities and court decisions
were followed by a large increase in the number of voting
changes submitted for preclearance under Section 5, still
many such changes have not been submitted. We have undertaken
LIBRARY GERALD : FORD
- 15 -
a number of programs to uncover such changes and to
obtain their submission. For instance, in July 1971
the Civil Rights Division sent letters to local district
attorneys in 18 of the 33 judicial districts in the
State of Louisiana reminding them of the preclearance
requirements of Section 5 and asking that they apprise
us of redistrictings or reapportionments of any of the
parishes located in their respective districts, since we
understood that virtually all of the Louisiana parishes
had redistricted, or were in the process of doing so and
we had received no redistricting submissions from those
districts. After the sending of these letters, 70 local
reapportionments were submitted, including 18 which resulted
in objections.
In 1972 and early 1973 the Voting Section undertook
a review of Louisiana state statutes passed during the
years 1965 through 1972 in an effort to identify those
appearing to deal with voting changes which had not been
submitted for a determination under Section 5. As a result
of this project the Louisiana Attorney General was advised
that a substantial number of such statutes existed and he
was reminded of the State's Section 5 responsibility with
respect to the voting changes apparently involved. The
State made a submission of 149 statutes in March 1973.
- 16 -
A similar project with respect to the 1971 Session
laws for the State of Alabama during 1974 resulted in the
discovery of 161 unsubmitted voting changes from the year
1971. This was brought to the Alabama Attorney General's
attention by my letter of August 27, 1974.
This year we have undertaken similar reviews of
the session laws for nine states for the years 1970-1974.
As a result we have mailed just recently (February 25, 1975)
to the Attorney General of Georgia a letter apprising him
of 158 unsubmitted laws which our search revealed
appro-
priate letters were sent to the states involved in March.
In addition, we have asked the FBI through contact
with local authorities to determine whether changes relating
to voting may have been adopted in a manner such as ordi-
nance, resolution, etc., which may not be reflected in the
state statutes. Where such changes have been made we
intend to seek Section 5 compliance where necessary.
Thus, Section 5 has yet to be fully implemented. In
some instances voting changes have been implemented even
""o
LIBRARY
- 17 -
after we notified the state or local authorities of the
requirements of Section 5 and even after we had sent
objection letters under Section 5. For instance, in
Leake County, Mississippi, in 1970 and in Kemper County,
Mississippi in 1974 we were forced to file suit in order
to prevent these counties from implementing an unsubmitted
change to at-large elections for their school board members.
And in a number of instances, i.e., the State of Georgia;
Jonesboro, Hinesville and Twiggs County, Georgia; and
St. James Parish, Louisiana, we had to file suit to pre-
vent intended implementation of a change to which the
Attorney General had objected.
Under Section 5, the submitting authority has the
burden of showing that the submitted change does not have
a racially discriminatory purpose or effect. While some
of the Attorney General's objections under Section 5 are
based primarily on the submitting authorities' failure to
carry this burden, many are based on a conclusion that the
change involved is clearly discriminatory. Permit me to
cite a few examples.
LIBBRAT GERALD ....
- 18 -
In recent years we have objected to the change
of polling places to an all-white segregated private
school (Lafayette Parish, La., July 16, 1971) and
to an all-white segregated club (St. Landry Parish,
La., Dec. 6, 1972); to a racial gerrymander of voting
districts using non-contiguous areas as a part of the
district (E. Feliciana Parish, La., Dec. 28, 1971) and
a racial gerrymander resulting in "an extraordinarily
shaped 19-sided figure that narrows at one point to the
width of an intersection, contains portions of three
present districts, and suggests a design to consolidate
in one district as many black residents as possible"
(Orleans Parish, La., August 20, 1971). In several
instances covered jurisdictions submitted proposed
annexations of white areas, while refusing to annex black
areas; attached, for example, as Exhibit 8 are our objec-
tion letter of February 5, 1975 regarding a proposed
annexation to Granada, Miss., a map of the proposed
annexation and, for comparison purposes, a map of the
voting change held unconstitutional in Gomillion V.
Lightfoot, 364 U.S. 339 (1960). Rather than provide only
LIBRARY GERALD FORD
- 19 -
selective examples, I have attached as Exhibit 5, a
list of all objections entered under §5 and as Exhibit
9 lists and summaries of Department of Justice litiga-
tion under the Voting Rights Act.
In summary, the protections of §5 should be
expanded because:
(a) it has been effective in preventing
discrimination;
(b) it has never been completely complied with
by the covered jurisdictions; and
(c) the guarantees it provides are more
significant to the country than slight
interference to the federal system.
B. Examiners
§ 6 of the Voting Rights Act, governing the use of
Federal examiners, provides for their appointment whenever
authorized by a court in a proceeding brought by the
Attorney General to enforce the guarantees of the 15th
Amendment ($3(a)), or in a covered jurisdiction under
§4(b), whenever the Attorney General certifies that he
has received meritorious written complaints from 20 or
more residents of political subdivision that they
have been denied the right to vote under color of law
BERALD FORD LIBRARY
- 20 -
by reason of race or color, or when, in his judgment,
"the appointment of examiners is otherwise necessary to
enforce the guarantees of the fifteenth amendment"
§6(b) (2). In making the latter determination, the
Attorney General is required to take into account whether
the ratio of nonwhite to white persons registered to vote
appears reasonably attributable to violations of the 15th
Amendment or whether bona fide efforts are being made to
comply. More specifically, the Department considers such
factors as how long and how consistently the voter regis-
tration office is open, its location in relation to areas
where black registration is low and whether offices are
set up in outlying areas; whether there has been intimida-
tion of registrants ranging from discourtesy to violence;
and whether standards are applied differently to white
and black applicants.
Once an area has been designated for federal
examiners, at the request of the Attorney General the
U.S. Civil Service Commission selects and assigns them.
- 21 -
As recognized by the Supreme Court in South Carolina V.
Katzenbach, supra, this section of the Act was necessary
because "voting officials have persistently employed a
variety of procedural tactics to deny Negroes the franchise,
often in direct defiance or evasion of federal court decrees."
383 U.S. at 336. The procedure was designed to cure some
of the "localized evil" which might be undisturbed by mere
suspension of misused voting rules.
The duty of federal examiners is to list persons
who satisfy state voting qualifications which are con-
sistent with federal law and to supply that list monthly
to local election officials, who then enter the names on
the official voter registry. A procedure for challenging
any person listed is provided in §9. In addition, examiners
are available during an election and within forty-eight
h ours after the closing of the polls to receive complaints
that persons otherwise eligible to vote have been denied
that right.
- 22 -
Since the passage of the Act, approximately
317 examiners have been sent to 73 designated juris-
dictions. A complete list of designated counties and
parishes is attached as Exhibit 10. The majority of
designations for examiners occurred from 1965-1967
(61 out of 73); however, 6 additional areas were
designated in 1974. The largest number of designations
have been made in Alabama (14), Louisiana (11), and
Mississippi (38).
Since 1965, 160,358 black persons have been listed
by federal examiners. During the period from 1965-1969,
a total of 158,384 blacks were listed, and from 1970-1974,
the federal examiners listed 1974 black voters. A complete
list of totals, by race, state, and year of persons listed
by federal examiners is attached as Exhibit 11. Estimates
based upon data collected by the Voter Education Project
in Atlanta, Georgia would indicate that registration of
blacks by federal examiners accounted for 34.2% of the
total increase in black voter registration in Alabama
from 1964-1972. The comparable percentages in other
states were 1.9% in Georgia, 13.2% in Louisiana, 27.5% in
- 23 -
Mississippi, and 7.4% in South Carolina, with a total
overall of 18.9% of black registration being accomplished
by federal examiners. See Exhibit 12. In addition, we
believe that the overall increase in black registration
in the covered southern states from 1.2 million in 1964
to 2.1 million in 1972 has been due, in part, to the
knowledge by local registrars that federal examiners will
be designated if black persons are not given a meaningful
opportunity to register.
The most recent use of federal examiners to list
black voters occurred in Pearl River County, Mississippi
in April, 1974. The designation of Pearl River County
resulted from more than 40 complaints by residents that
they had been denied the right to vote by reason of their
race, the first such designation made by the Attorney
General on the basis of specific complaints under §6 (b) (1).
The underlying complaints in Pearl River County
concerned the unwillingness of county officials to
facilitate registration by persons residing in the City
of Picayune, 26 miles from the county seat and the home
of approximately 70% of the county's black residents.
- 24 -
Statistics showed that only about 50% of those eligible
to vote were registered. In spite of efforts by attor-
neys from the Department to resolve the matter with
county officials, the circuit clerk refused to carry
his registration books to Picayune on Saturday when
many blacks, who were unable to travel the 26 miles to
his office during regular business hours, could register.
As a result of the appointment of federal examiners,
181 persons were registered, 172 of whom were black.
C. Observers
Whenever federal examiners are serving in a
particular area, the Attorney General may request that
the Civil Service Commission assign one or more persons
to observe the conduct of an election to determine
whether persons who are entitled to vote are permitted
to do so and to observe whether votes cast by eligible
voters are being properly counted.
In making the determination that federal observers
are needed, the Attorney General considers three basic
LIBRARY GERALD R. FORD
- 25 -
factors: (1) the extent to which those who will run an
election are prepared, so that there are sufficient voting
hours and facilities, procedural rules for voting have
been adequately publicized, and polling officials, non-
discriminatorily selected, are instructed in election
procedures; (2) the confidence of the black community in
the electoral process and the individuals conducting the
election, including the extent to which black persons are
allowed to be poll officials, and (3) the possibility of
forces outside the official election machinery, such as
racial violence or threats of violence or a history of
discrimination in other areas, such as schools and public
accommodations, interferring with the election. Such
factors are particularly important in an election where a
black candidate or a candidate who has the support of
black voters has a good chance of winning the election.
Federal observers provide a calming, objective presence
in an otherwise charged political atmosphere, and serve
to prevent intimidation of black voters at the polls and
- 26 -
to assure that illiterate voters are provided with non-
coercive assistance in voting. For instance, when the
local polling place is located in a white-owned store,
the presence of federal observers can alleviate appre-
hension by black voters that informal voting procedures
or other improprieties will be used which will enable the
poll officials to know how they voted.
Attached as Exhibit 13 is a group of representative
examples of specific situations in which observers were
authorized in response to local conditions surrounding
elections in 1974 which had a potential for discriminatory
practices. These narratives indicate that the use of
federal observers is still warranted and necessary not
only to assure a fair election but to lend the appearance
of fairness which is essential to the maintenance of con-
fidence in the election process.
A total of 7,359 observers have been assigned
to counties and parishes in five states through December
1974, the largest number being assigned in Alabama and
Mississippi. See Exhibit 14. A complete listing of
observers assigned, by date of election, for the period
- 27 -
from May, 1966 through December, 1974 is attached as
Exhibit 15. From 1966-1969, 4818 observers were used
in 39 elections while from 1970-1974, 38 elections were
covered by 2541 observers. In 1974, 464 observers were
assigned to 12 elections.
Each observer completes a report summarizing in
detail the conduct of the election process at the polling
place to which he or she is assigned. That report is
provided to the Department of Justice for review. A
sample report form is Exhibit 16. Observer reports have
been useful in evaluating complaints of discrimination in
the election process, and observers have testified in court
in several instances in order to establish the existence of
improper practices at the polling places.
In January 1968, two federal observers testified
before a state grand jury that they had observed the
defendant altering ballots in the August 8, 1967 primary
election in Coahoma County, Mississippi. And in a case
involving the May 3, 1966 election in Dallas County,
- 28 -
Alabama, a federal observer testified as to the method
of tallying ballots.
The observers' reports were used in a lawsuit
instituted by the Attorney General against election
officials in Marshall County, Mississippi to establish
that scores of black voters who had been assigned to
the wrong polling places were turned away from the polls
in the 1971 elections.
The United States District Court for the Northern
District of Mississippi in its recent opinion (10/4/74)
in the case of James V. Humphreys County Board of Election
Commissioners (C.A. No. GC 72-70-K) relied heavily upon
observer reports which it termed "highly credible" to
establish the election procedures at each polling place.
The reports were also used by the Attorney General in a
separate lawsuit involving the same election to establish
that over 700 ballots were improperly rejected by elec-
tion officials.
In addition to information which is used subse-
quent to an election in the context of a lawsuit,
- 29 -
observer reports of alleged impropriety have been
useful in clearing up problems quickly, at the polls,
before they become more serious. In many instances,
too, observer reports have been useful in documenting
that alleged violations had not occurred.
D. Overall Results of Voting Rights Act
The overall results of the Voting Rights Act
in strengthening the role of black persons in the
political process have been significant, but there
remains a great deal to be accomplished. Based upon
the available data, we estimate that the number of
blacks registered to vote has increased from 1.5 to
3.5 million in the eleven-state South and nearly
doubled from 1.2 to 2.1 million in the seven Southern
states covered by the Voting Rights Act.
The most significant gains in voter registra-
tion by blacks have occurred in Mississippi, Louisiana,
and Alabama. Prior to the Voting Rights Act, in 1964,
less than 10% of the black persons of voting age were
registered to vote in Mississippi, although blacks
constituted 36% of the voting age population. As of
- 30 -
1971-72, 62.2% of eligible blacks in Mississippi were
registered. Even considering this gain, however, black
registration is still nearly 10% lower than the rate of
white registration in Mississippi. In Louisiana, black
registration, expressed as a percentage of voting age
population, was 59.1% in 1971-1972 as compared with 32.0%
in 1964. However, the rate of black registration in
Louisiana is approximately 20% less than that for white
persons. A similar pattern exists in Alabama where,
although the gain in percentage of black persons registered
is 34%, a gap of 23.6% still exists between black and white
registration rates. These statistics, compiled from data
gathered by the Voter Education Project, appear in Exhibits
17 and 18. They demonstrate, graphically, great gains, but
also much more that can be accomplished.
Another indication of the gains made by black
citizens under the Voting Rights Act is the increase in
the number of black elected officials. As of April, 1974
there were 2,991 black elected officials in the United
LIBRARY GERALD ? FORD
- 31 -
States. This includes federal, state, county and
municipal governments as well as elected law enforce-
ment and education officials. Approximately 45% of
the black elected officials are in municipal govern-
ment positions including mayors, councilmen, commis-
sioners, and aldermen. The attached Table, Exhibit 19,
shows the distribution of black elected officials by
state and position as of April, 1974. In 1970, there
were only 1,469 black elected officials. Exhibit 20,
attached, shows the number by state in 1970 and in 1974
together with the change which has occurred during that
time. Exhibit 21, showing the number of blacks in elective
office compared to the total population, voting age popu-
lation and all elected officials shows that although
blacks constitute 9.8% of the voting age population, less
than 1% (0.6%) of all elected officials are black. All of
these tables can be found in the 1974 Roster of Black
Elected Officials published by the Joint Center for
Political Studies in Washington.
Concentrating on the southern states, the gains
from 1965 to 1974 are significant. There were less than
- 32 -
100 black elected officials in the sout hern states
prior to the Voting Rights Act, compared with 565
black elected officials in eleven southern states
in 1970, and 1398 in 1974. The attached chart,
Exhibit 22, shows the number of black officials by
state and year for these eleven states. Of the 1398
black elected officials today, 964 are in the seven
states covered by the Voting Rights Act.
Notwithstanding these gains, out of 101 counties
with majority black populations, 38 have no black elec-
ted officials in district, county, city or state posi-
tions and an additional 11 majority black counties have
only one (1) black elected official.
The South's black mayors are, with few excep-
tions, in small municipalities or in areas in which
there is a majority black population. In the seven
southern states covered by the Voting Rights Act, only
7% of the seats in the lower houses of state legisla-
tures were held by blacks, while in the upper houses
blacks held only 2.5% of the seats. Of the sixteen
black United States Representatives, only two are
from southern states.
FORD
LIBRARY
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Similarly, although Mississippi ranks second
in the nation in the number of black elected officials
with 191, black persons hold only 4% of the elective
positions despite the fact that over 1/3 of the
population in the state is black (36.8%). By pointing
to these disparities, I do not mean to suggest that any
particular number or percentage of black persons in
elective offices is required, but only that the statistics
suggest the existence of practices against blacks which
have prevented the level of representation that could
normally be expected.
The increase in the numbers of blacks registered
and voting has also had an incidental effect on the
responsiveness of white elected officials to black citizens'
needs. We can see this increased responsiveness in recent
appointments of blacks to state level positions by the
white elected officials.
In summary, there have been significant improvements in
the political role of blacks since the passage of the Voting
Rights Act, but I have also tried to highlight those areas where
more needs to be done. The number of objections which the Attorney
- 34 -
General has made to changes in voting laws submitted
to him under $ 5 shows that there is still a potential
for the passage of legislation which has either as its
purpose or effect the exclusion of black voters from
their rightful role. This potential could become
reality in the absence of some objective control at
the federal level.
E. Conclusion
In my judgment the record strongly demonstrates
the need for continuation of the special coverage
of the Act, especially § 5. The Administration bill,
S. 407 , differs from S. 1279, in proposing a
five year rather than a ten year extension of the Act.
The reasons for this approach are as follows.
First, Congress used five years as the appropriate
period in 1965 and 1970. As we get further away from the
events which led to passage of the original Voting Rights
Act, it seems inappropriate to go to a new, longer time
period. Rather, the need for periodic review by Congress
of the continuing need for the special coverage seems
- 35 -
greater now than it was in 1965. It should be our goal
to end the need for the special coverage provisions. A
five year extension would provide a greater incentive
to the covered jurisdictions to eliminate the need for
special coverage. Indeed, I believe that the progress
which has been made during the past five years warrants
considerable optimism that we could complete the job in
the next five years. Finally, I would note that a five
year extension does not represent an absolute barrier inas-
much as the Act provides for continuing some protection,
by providing for the retention of district court juris-
diction for the five years following the issuance of a
declaratory judgment under § 4 (a).
- 36 -
II. Extension of § 201
Section 2 of the bill proposed by President
Ford (S. 407) would extend for an additional five
years $201 (a) of the Voting Rights Act, as amended.
This is the section providing for nationwide suspension
of literacy tests and other similar prerequisites
for voting. 42 U.S.C. 1973aa. Before discussing
the basis for this aspect of our proposal, I wish
to review the history of §201 and its relation to
$4 of the Act.
As noted above, §4 (a) of the 1965 Act, 42 U.S.C.
1973b(a), provided for the suspension of any "test or
device" in any state or county found to be within
the coverage formula set forth in 4(b). The means
of terminating such suspension is a "bail out" suit.
The primary effect of these provisions was to suspend
the use of literacy tests in six states, Alabama,
Georgia, Louisiana, Mississippi, South Carolina and
Virginia, and in 39 counties in North Carolina. The
constitutionaility of these provisions was upheld by
the Supreme Court in South Carolina V. Katzenbach, supra.
- 37 -
In 1970, Congress amended $4(a), in effect by
extending for five years the period of coverage.
In addition, Congress amended $4(b) by adding a coverage
formula based upon voter participation in the 1968
Presidential election. Use of the 1968 formula brought
within $4(a)'s suspension of tests a number of political
subdivisions, including three New York counties, eight
Arizona counties and two California counties. The
constitutionality of the 1968 formula has not been
challenged in court.
Thus, the net effect of $4(b)'s original
coverage formula (based on the 1964 Presidential
election) and the formula added in 1970 was to suspend
the use of tests and devices in some, but not all,
states and counties which employed such prerequisites
for voting. The other jurisdictions which had a test
or device either were never brought under §4(a) (because
their voter participation in 1964 and 1968 exceeded
50 percent) or, if covered, were successful in a
"bail out" suit.
FORD & GENALD LIBRARY
- 38 -
However, $201, another provision added by the
1970 Amendments, prohibited the use of any test or
device in any state or political subdivision not
subject to suspension under 4(a). The definition of
"test or device" used in §201 is identical to that
used in §4(b). The definition includes literacy
tests, good-character requirements and other similar
prerequisites for voting. Originally, §201 applied
to all or some of the political subdivisions in 14
/
states. For example, it applied to the entire State
of Oregon and to all New York counties, except the
three that were covered by $4(a). The suspension
effected by $201 (a) continues until August 6, 1975,
but, unless the statute is amended, it will terminate
on that date.
Soon after enactment of the 1970 Amendments, the
State of Arizona indicated that, on constitutional
grounds, it would not comply with $201. The United
/ One of the states, Idaho, had a good-character
test, rather than a literacy test.
BERALE FORD LIBRARY
- 39 -
States then brought an original action in the Supreme
Court to enforce 201 with respect to Arizona, and the
Court held in favor of the United States. As a
result of this and related litigation the Court sustained
the constitutionality of $201. Oregon V. Mitchell,
supra.
In its brief in the Arizona case, the Department
of Justice noted that, in adopting $201, Congress had
relied upon its power to implement the 14th and 15th
Amendments. Brief for the United States, PP. 39-51.
We contended that $201 was a proper exercise of
Congress' power under each of the amendments and
stressed, among other things, the applicability of
the rationale of the Gaston County decision,
Gaston County V. United States, 395 U.S. 285 (1969).
In that case the Supreme Court said that imposition
of a literacy test in Gaston County, North Carolina
was discriminatory where its racially disparate
effect was attributable to racial discrimination by
the state's public schools.
- 40 -
While somewhat different reasoning was employed
in the five opinions in Oregon V. Mitchell, the Court
was unanimous in sustaining $201. Seven justices
relied solely upon the 15th Amendment. 400 U.S. at
154, 232 and 282. Justice Black referred mainly to
the 15th Amendment, but also mentioned the 14th. 400
U.S. at 118, 132. Justice Douglas referred only to
the 14th Amendment. 400 U.S. at 144. Opinions in
which seven justices joined were based in part upon
the Gaston County theory.
In our view, essentially the same reasons which led
to enactment of §201 in 1970 and which furnished the
basis for its constitutionality support extension of
$201. Those reasons were summarized as follows in the
joint statement signed by a majority of the members of
the Senate Judiciary Committee:
our main concern is to extend undiminished
the Voting Rights Act of 1965. In addition,
however, our amendment
would extend the
suspension of literacy tests and of other tests
and devices to all states of the Nation.
Even though these other areas have no recent
history of discriminatory abuses like that which
prompted enactment of the 1965 Act, this extension
FORD
GERALD
LIBRARY
- 41 -
is justified for two reasons: (1) because of
the discriminatory impact which the requirement
of literacy as a precondition to voting may have
on minority groups and the poor; and (2) because
there, is insufficient relationship between
literacy and responsible interested voting to
justify such a broad restriction of the franchise.
116 Cong. Rec. 5521 (1970).
Since §201 has been in effect, use of tests and
devices has been suspended throughout the United States.
However, current statistics indicate that, in affected
states, the rate of literacy among blacks, Indians or
Spanish-speaking citizens is disproportionately low.
See Exhibit 23. This fact, bolstered by the Gaston County
theory, indicates that the Congress has a proper basis for
extending the ban on use of tests and devices.
As noted above, in Oregon V. Mitchell, most of
the justices relied upon the 15th Amendment and did
not discuss the 14th Amendment with regard to $201.
Still, in our opinion, the alternate ground employed
by Congress in 1970 has some judicial support. That
is, even apart from the discriminatory effects which
literacy tests have upon blacks and other minority
FORD
GERALG
LIBRARY
- 42 -
groups, Congress could properly determine that such tests
are invalid under the 14th Amendment because they are
not justified by any "compelling state interest."
Cf., e.g., Dunn V. Blumstein, 405 U.S. 330 (1972);
American Party of Texas V. White, 415 U.S. 767 (1974).
The importance of the widespread availability
of radio and television as means of informing the
electorate was referred to in the 1970 statement of the
ten members of the Senate Judiciary Committee. We are
aware of no indication that $201 has had detrimental
effects in any state. Finally, it is significant that
at present only 14 states retain laws providing for
literacy tests. See Exhibit 24. This number includes
five states covered by §4(a) and nine states covered,
in whole or part, by $201. Since 1970, six states
have repealed their literacy requirements.
In short, we feel that the basis for continuing
§201 is clear. Our proposal that the extension of §201
be for an additional five years, rather than for a longer
period, is tied to our proposal that $4 (a) be extended for
five years. At such time as §4 is allowed to expire,
FORD
GERALD
LIBRARY
43
Congress may wish to consider enacting permanent
voting rights legislation, and that would be the
appropriate time for considering whether the suspension
of tests or devices should be converted to a permanent
ban.
44
III. I would like to turn next to the issues
raised by Amendment No. 312 to S. 1279, sponsored by
Senators Bayh, Haskell, Gary W. Hart, Philip A. Hart and
Hugh Scott, Amendments No. 343, 344 and 345 sponsored by
Senator Tunney, and raised by Titles II and III
of H.R. 6219. These bills would amend the Voting Rights.
Act, so as to provide further protection for the voting
rights of Spanish heritage Americans, Native Americans,
Alaskan Natives, and Asian Americans. As I stated in my
testimony before the House Subcommittee on Civil Rights
and Constitutional Rights, it is my view that the Voting
Rights Act presently provides some protections for these
minority groups. As noted earlier, both the general pro-
hibitions against discriminatory voting practices based on
race or color, such as sections 2, 3, 11 and 12, and the
special coverage provisions triggered by §4 apply, in our
view, to discrimination against persons of Spanish heritage,
*
Native Americans, and Asian-Americans.
/ The Mexican Census of 1921, referred to in Exhibit
32
,
is attached as Exhibit 33 . It shows
that over 90 percent of the persons of Mexico are classi-
fied as either of the indigenous, i.e. Indian, race or of
mixed races. Less than 10 percent of the people are
classified as white. I understand that 1921 was the last
year in which such data was collected by the Mexican census.
LIBRARY CERALD FORD
45
In addition, one of the stated reasons for extending
to the whole nation the suspension of literacy tests
was the discriminatory impact of such tests on Spanish
heritage Americans. In reviewing
voting changes from covered jurisdictions in which
significant numbers of persons of these groups reside,
our uniform practice has been to consider the impact of
the changes on these groups, and in some instances
objections to voting changes have been based on the
impact on Spanish-origin or Native American citizens.
Specifically, I would refer the Committee to Exhibit 25,
consisting of the objection letter of April 1, 1974,
regarding reapportionment in New York; the Memorandum
of Decision of July 1, 1974 on the same subject;
correspondence to and from the Attorney General of
Arizona, dated October 3, 1974; and the objection letter
of February 3, 1975, regarding Cochise Co., Arizona.
The most recent Departmental litigation
involving voting rights of Puerto Ricans is New York V.
United States, Nos. 73-1371 and 73-1740, decided
October 22, 1974, in which the Supreme Court affirmed
the reopening of the New York litigation and the denial
of a motion filed by the State of New York to "bail out"
from special coverage of the Voting Rights Act. In
FORD
our motion to affirm in that case we relied heavil
GERALD
LIBRARY
46
on the existence of a district court order finding that
New York maintained a test or device which had "the
purpose or the effect of denying or abridging the
voting rights of New York's non-English speaking
citizens of Puerto Rican birth...." (Motion to affirm, P. 10).
The proponents of additional legislation have
suggested two major legislative needs in this area.
First, they point out that some states in which
large numbers of non-English speaking Puerto Ricans,
Mexican-Americans or Native Americans reside conduct
English-only elections, despite the existence of some
court rulingsthat such minorities are entitled to bilingual
elections. Second, they have alleged that other forms of
discrimination against these minorities are sufficiently
prevalent in some non-covered states to warrant expanding
the special coverage provisions to cover such states.
Our study to date discloses that there is a wide range
of approaches taken by the states to the problem
of ensuring non-English speaking citizens the
right to an informed vote. We have made an informal
survey, covering a majority. of the states. We looked
Puerto Rican Organization for Political Action V. Kusper,
490 F. 2d 575 (N.D. Ill. 1973) ; Arroyo, et. al. V. Tucker, et al.,
372 F. Supp. 764 (E.D. Pa. 1974) ; Torres V. Sachs, F. Supp.
FORD
(Case No. 73 Civ. 3921, S.D.N.Y., September 26, 1973); Lopez V.
GE
Dinkins, F. Supp. (Case No. 73 Civ. 695, S.D.N.Y., M rch 21,
LIBRANT
1973) ; Marquez V. Falcey, F. Supp. (Civ. No. 1447-73, D.N.J.,
October 9, 1973).
47
at state statutes and contacted state secretaries of
state. In some states there has been no provision
whatever made to take into account the existence of
a substantial minority of non-English speaking voters
(see, for example, the cases referred to above relating
to New Yerk). In other states, statutes allow non-
nglish speaking voters to have a translator (e.g.,
e
Texas Election Law 88.13a) */ or to have assistance
in marking the ball ot (e.g., Illinoos Election Code,
Ch. 46, 37-48; Minn. Stat. $206.20). In Arizona,
although state law is silent on the subject, the
State Attorney General, by letter Of October 3, 1974
(attached as Exhibit 25) assured me that the state would
provide bilingual notice and allow assistance in marking
the ballots of non-English speaking and illiterate
voters. The State of New Mexico requires that all state
constitutional amendments
/
It is not clear whether Texas law, prior to the
decision/ in Garza V. Smith, 320 F. Supp. 131 (W.D.
Tex. 1970), remanded for entry of fresh judgment, 01
U.S. 1006, dismissed, noting continuing jurisdict on
in the District Court, 450 F. 2d 790 (5th Cir. 1971),
allowed the translator to enter the voting booth.
Recent developments in Texas are outlined in a letter
from the Secretary of the State of Texas, attached as
Exhibit 34
:
48
be printed in Spanish and English (N.M.
Stat. Ann. § 3-16-5); a sample ballot is attached
as Exhibit 26). The states of California and New
Jersey recently enacted laws providing for bilingual
sample ballots. The New Jersey requirement applies
to all election districts in which the primary
language of 10% or more of the registered voters is
Spanish (P.L. 1974, Chapter 30 and 51), while the
California requirement applies statewide (Calif.
Elections Code § 14201.5). New Jersey requires such
districts to have at least two Spanish speaking
election officials and California requires that
bilingual election officials be recruited in those
precincts with a 3% or more non-English speaking
voting age population (Calif. Election Code $ 1611).
Attached as Exhibit 27 are a report from the
California Secretary of State's office, dated
October 31, 1974 showing that § 1611 has not yet been
fully implemented, and a copy of Spanish language
instructions and sample ballot used in California.
We have been told that some other states, such as
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Colorado, some counties in Florida, Idaho, Kansas,
Massachusetts, and Washington, also print voting
instructions or materials in Spanish. According to
the Secretary of State's office in Indiana, voter
instructions are posted in Polish in Blake County,
Indiana. Our survey thus reflects:
(1) There is a growing sensitivity in
many states to the rights of non-English
speaking voters;
(2) A few states with large numbers of
Spanish speaking voters have failed to take
effective action to secure their right to
vote; and
(3) There is a need for a more thorough
and systematic review of the problem.
The practices of the states relating to English-
only elections take on added significance if one looks at
the statistics relating to voting by Spanish origin persons
and the related statistics showing the number of Spanish
origin elected officials and the range of civil rights suits
which have been necessary to protect the rights of Spanish
origin persons. For example, according to the Bureau of the
Census, while 73.4% of white voting age population (VAP) and
65.5% of the black VAP were registered to vote in November
1972, only 49.4% of the Spanish origin VAP were registered.
The available figures are set forth in Exhibit 29. However,
comparable figures are not available for states or political
subdivisions so that it is difficult to pinpoint the areas
50
where the problem of non-participation by Spanish origin
voters is greatest. Our study of the State of Texas
voting and census figures for 1972 reflect that counties
with high Mexican-American population had slightly lower
voting participation that counties with low Mexican-
American populations; the disparity becomes somewhat
greater if the combined black and Mexican-American figures
are compared with the white "Anglo" figures. See Exhibit
35
The other measure of political participation --
statistics as to elected officials -- appears to reflect
that Spanish-surnamed persons are slightly more fully
represented in proportion to their overall population than
blacks are, but that both groups are still vastly under-
represented as compared with whites. Exhibit 30 provides
those figures, based on compilation of names prepared by
private organizations.
Another rough measure of need is provided by looking
at the extent of litigation needed to secure the rights of
Spanish-speaking citizens. Other witnesses have already
alluded to the various voting rights suits. In terms of
the issue of responsiveness of state and local government
to the Spanish origin minority, I believe it is also rele-
vant to consider the experience of the Department of
Justice in enforcing the civil rights laws as thev relate
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to Spanish origin persons. Exhibit 31 is a list of our
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51
litigation in this area. It shows that we have had to
take litigative action against state and local governments
to prevent discrimination against Spanish origin persons
in public schools, employment, voting rights and penal
institutions.
In sum, although some court decisions already
suggest that in order for the right to vote to be
effective voters belonging to a substantial minority
which speaks a language other than English should be
provided election materials in their own language, some
states have not reformed their voting laws to comply with
those decisions.
In light of this information, and other evidence
presented to the House Subcommittee on Civil Rights and
Constitutional Rights and to this Subcommittee, it is our
view that it would be appropriate to enact a nationwide
ban on English only elections in jurisdictions with sub-
stantial concentrations of citizens whose primary language
is other than English. Title III of H.R. 6219 contains such
a provision. Amendment No. 343 to S. 1279 and Section 301 of
Amendment No. 312 to S. 1279 contain similar provisions.
Another proposed provision has been drafted by the staff of
the United States Commission on Civil Rights (attached as
Exhibit 36 ). At the request of the House Subcommittee, my
staff has provided technical assistance in drafting approaches
to further protecting the voting rights of non-English speak-
ing minorities. Attached as Exhibit 37 for example,
is a staff analysis of H.R. 5552; this analysis
52
is in large measure applicable as well to Amendment No.
312. Since I believe some of the more recent proposals
improve on our initial efforts, in the interest of brevity
I will only discuss the provisions contained Title III of
H.R. 6219 and the Civil Rights Commission staff draft
Title III of H.R. 6219, as amended bans for a ten
year period the use of certain enumerated English only election
and registration materials in jurisdictions in which the
Director of the Census determines (i) that more than five
percent of the citizens of voting age are members of a
single language minority and (ii) that the illiteracy rate
of such persons as a group is higher than the national
illiteracy rate. "Language minority" is defined to include
persons who are American Indian, Asian American, Alaskan
Natives, or of Spanish heritage. "Illiteracy" is defined as
failure to complete the fifth primary grade.
The title provides that any political subdivision
of a state covered by operation of the Section is exempted
from coverage if less than five percent of the voting age
citizens of that political subdivision are of the language
minority whose presence in the State caused the State to
be covered by the Section. The provision also allows a
covered jurisdiction to bail out if it can demonstrate in
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the District Court for the District of Columbia that
the illiteracy rate of the applicable language minority
group within the jurisdiction is equal to or less than
the national illiteracy rate.
In sum, the Section would reach only those
jurisdictions in which substantial numbers of voters
are affected by English only elections, and would simply
require those jurisdictions to provide bilingual or multi-
lingual election and registration materials until such time
that they can demonstrate that the illiteracy rate among
persons in the protected class is equal to, or less than
the national illiteracy rate.
Although it is my view that a law along the lines of
this section could provide an effective remedy for the
voting problems of some language minorities which are
directly related to their inability to read, write, inter-
pret, or understand the written English language, I have a
few reservations concerning this particular section. First,
Title III of H.R. 6219 would only be implemented in juris-
dictions which have substantial Asian-American, Native
American, Native Alaskan, or Spanish heritage populations.
It would not provide similar protections in areas with, for
example, substantial French or German-American populations.
There seems to be little reason to exclude these and other
language minorities from coverage under this provision.
Second, Title III provides a ten year ban on
English only elections. It is my view that, as we would be
entering a new area of voting rights enforcement, an initial
five year ban would be more appropriate.
Third, under Title III within a covered subdivision
of H.R. 6219,
bilingual elections would apparently be required even in
54
precincts having no voters belonging to a language
minority.
I will turn now to the proposal drafted by the
staff of the United States Commission on Civil Rights.
This proposal is in some respects more expansive, and
in some respects narrower than Title III of H.R. 6219
The Civil Rights Commission draft would ban the use of
English only election and registration materials in
jurisdictions in which more than five percent of the
citizens of voting age do not speak, read, write, or
understand the English language and habitually use a
single language other than English. A jurisdiction meeting
these criteria would be required to provide certain elec-
tion and registration materials in the language of the
affected class.
There are three major differences between the
Commission draft and Title III of H.R.6219. The
Commission draft is based on actual illiteracy in the
English language, rather than on the arbitrary definition
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(less than five years of schooling) used in Title III.
In addition the Commission draft would not require
determinations as to coverage to be made by the Director
of the Census. Rather, jurisdictions would be covered
by the proposed section in one of three ways. First,
the jurisdiction could itself decide that it was
covered and voluntarily provide bilingual materials
Second, members of the protected class could request
the jurisdiction to provide bilingual materials and
if that failed, bring suit.
Third, the Department of Justice could bring suit under
section 203 of the Voting Rights Act, as amended by section
302 of the proposed draft. The determination made by
the court would not be based solely on Census materials that
do not actually indicate whether people know English or
not but would be based on a showing that a language
problem actually exists. Finally, the Commission draft
would cover jurisdictions which have substantial populations
56
of any non-English speaking citizens; it would not cover
precincts not having such concentrations.
In summary, we recommend that a provision along
the lines of either Section 301 of H.R. 939 or the Civil
Rights Commission staff proposal be enacted to protect the
voting rights of non-English speaking citizens.
Let me turn next to the question of expansion of
the special provisions of the Voting Rights Act to juris-
dictions with substantial Spanish heritage or American
Indian populations, along the lines proposed in H.R. 6219,
Senate Amendments 312, 344 and 345. In my
testimony before the House Subcommittee some six weeks ago
I suggested that if a strong case were made of widespread
deprivations of the right to vote of non-English speaking
persons, beyond those outlined above, expansion of the
special provisions of the Act might be warranted. I out-
lined the spotty information which we had been able to
gather up to that time, and concluded that the difficult
question was whether the hearings before the Congressional
committees would develop sufficient evidence to warrant
expansion of coverage, or whether it would be necessary to
await the results of the thorough investigation of these
problems which the Civil Rights Commission recently decided
to conduct. Since that time considerable testimony has
been presented to this Subcommittee and to the House Sub-
committee. The House Subcommittee has made its legislative
determination that the evidence warrants expansion. In
light of the other remedies available and in light of the
stringent nature of the special provisions, the Department
of Justice has concluded the the evidence does not require
57
expansion based on the record currently before us. In
reaching this conclusion, we have compared the evidence
presented in 1975 with the evidence which in 1965 con-
vinced the Congress to adopt the Voting Rights Act. The
1965 evidence was far more compelling, and if the standard
of 1965 is to be applied now, we believe that the most
appropriate exercise of legislative discretion is to forego
expansion at this time. I recognize that reasonable persons
may differ in their evaluations of such factual questions or
of the appropriate standard. My remarks are addressed to
our evaluation of the evidence, and should not be construed
as casting a cloud on the constitutionality of expansion of
the special remedies of the Act to other jurisdictions.
In reaching our conclusion we were also influenced
by the view that progress could be accomplished by the
Department of Justice to protect the voting rights of
Spanish heritage Americans and Native Americans through the
use of Section 3 of the Act. Although the use of Section 3
would seem to require the kind of case by case process of
litigation which was required prior to passage of the Voting
Rights Act, under Section 3 preclearance of voting changes,
and the appointment of federal examiners and observers may
be required where the Attorney General proves violations of
the Fifteenth Amendment. Our Voting Section is therefore
now engaged in a program to proceed under that section to
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protect the rights of Spanish heritage, Native American
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and black voters.
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We recognize that there is support in the Congress
for expanding the coverage of the special provisions of
the Voting Rights Act, and as the Department of Justice
would be charged with the responsibility of enforcing
such expanded provisions, I would like to briefly discuss
some of the technical aspects of such legislation. Amend-
ment No. 344 to S. 1279 contains provisions in Section 204
which specify with some precision the method to be used to
determine whether a state or political subdivision is
covered by operation of the coverage provisions. H.R.
6219 does not contain such a provision. In our view such
language is advisable for several reasons. First it spells
out exactly when, in what order, and by whom the determina-
tions shall be made. Second, it places the burden of
collecting evidence concerning English-only elections on
the State or political subdivision. The determination that
a jurisdiction employed an English only elections in 1972 is
not simply a matter of reading statute books, which is how
we were able to determine the use of a test or device under
the Act as passed in 1965 and as amended in 1970. The
Justice Department's resources would be expended traveling
to these jurisdictions and going through old election
records. Therefore it is important to require that juris-
dictions have the burden of demonstrating to the Attorney
General that they did not hold English-only elections in
1972.
H.R. 6219 adds the Fourteenth Amendment as one of
the constitutional bases for these provisions. As I dis-
cussed earlier, it is our belief that the persons protected
by these provisions are protected by the Fifteenth Amendment.
See Exhibit 32. However, not everyone is in agreement with
that determination, and it is my view that the use of the
Fourteenth in addition to the Fifteenth Amendment is reasonable.
However, Sections 205 and 401 of H.R. 6219 in conjunction,
would allow an aggrieved person, suing to enforce the gua-
rantees of either the Fourteenth or Fifteenth Amendments to
request that the district court invoke the special provisions
of the Act, including the provision of examiners and the
preclearance of voting changes. This language would give the
district court jurisdiction in a Fourteenth Amendment reap-
portionment case in which no discrimination based on race,
color or national origin is alleged, for example, to invoke
the special remedies of the Act. Therefore, I believe that
Section 3 as amended by the House Subcommittee bill is dan-
gerously overbroad, and we do not support that portion of
H.R. 6219 as written.
If Congress feels further legislation to protect
Spanish surname and American Indian voting rights is nec-
essary, it might be appropriate to consider some other
means of affording private persons the right to request
Section 3 remedies in a voting discrimination suit. Such
a provision should, in our view have limitations upon it.
For instance such a provision might require that the action
be a class action alleging systematic violations of voting
rights on account of race, còlor or national origin.
It could require that whenever a person requests remedies
under Section 3, he shall notify the Attorney
General, and the Attorney General shall have the right to
60
intervene. (Section 401 (c) of Amendment No. 345 to
S. 1279 contains such a provision). Such a provision
should also provide that any private action seeking to
invoke the remedies of Section 3 be brought before a
three judge district court.
IV. I would like next to turn to several additional
new provisions included in H.R. 6219, to S. 903 and to a
bail out provision which the Department of Justice drafted
at the request of Congressman Butler.
Section 402 of H.R. 6219 provides that in any
action or proceeding to enforce the voting guarantees of
the Fourteenth or Fifteenth Amendment, the court, in its
discretion may allow the prevailing party, other than the
United States, a reasonable attorney's fee as part of the
costs. Many other civil rights statutes presently provide
for the awarding of attorneys fees to the prevailing party.
It is our view that statutory authority for the awarding
of attorneys' fees in voting rights cases is reasonable and
appropriate.
Section 403 of H.R. 6219 requires the Director of
the Census to conduct statistical surveys of voter regis-
tration and participation by race color or national origin
in every jurisdiction covered by operation of Section 4 of
the Act after every federal election or in any jurisdic-
tion for any election designated by the Commission on Civil
Rights. We agree with the desirability of having accurate
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voting statistics in order to evaluate the performance of
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61
jurisdictions under the Voting Rights Act, and for the
purpose of assessing the need for further action. How-
ever we do not know of the cost or feasibility of this
provision and must defer to the Director of the Census
on these issues.
Section 404 of H.R. 6219 amends Section 11 (c) to
provide criminal penalties for the giving of false informa-
tion in registering or voting for delegates from Guam and the
Virgin Islands. This amendment would bring Section 11 (c)
up to date by including all jurisdictions with delegates
in its coverage.
Section 405 of H.R. 6219 codifies 28 C.F.R. 51.22
which by regulation established a procedure for the Attorney
General to expedite his appraisal of a Section 5 submission
for good cause shown. See Exhibit 7. This Section does no
more, and no less than 5122; however, in our view it is bene-
ficial to codify the regulation to remove any question as
to the Attorney General's authority to expedite the Section
5 procedures in appropriate cifcumstances. Let me emphasize
that both 28 C.F.R. 51.22 and Section 405 of H.R. 6219,
protect the right of the Attorney General to reevaluate his
determination at any time within the 60 day period if new
information comes to his attention.
In the hearings on extension the issue has been raised
whether Section 4 of the Voting Rights Act needs an addi-
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tional bail out provision in light of recent court decisions
such as Virginia V. United States. At the request of
LIBRATA
Congressman Butler the Civil Rights Division drafted such a
bail out provision which we felt was consistent with the
62
goals of the Act. See Exhibit 38 However, it has
been and continues to be our view that the present bail
out structure is adequate and that additional bail out
provisions therefore are not necessary.
Finally I would like to comment on S.903 which
among other things would repeal Section$4 and 5 of the
Voting Rights Act. As I have already stated, although
it is my view that there have been substantial gains made
under the Voting Rights Act to date, much more needs to
be done. To repeal Sections 4 and 5 of the Act at this
date would be to leave an essential task - the eradication
of discrimination in voting on account of race - only
partially completed. Therefore I strongly oppose S. 903.
In conclusion, I believe that the most urgent
task of the Committee relating to the Voting Rights Act
is to agree promptly on a bill extending $4 and §201 for
an additional 5 years. Prompt action is necessary to
ensure that the special coverage provision and the nation-
wide suspension of tests and devices are not allowed to
expire. The second task, of equal importance, if not
subject to the same time constraints, is consideration of
the need for additional coverage to protect the rights of
Mexican-Americans, Puerto Ricans, and Native Americans.
I would urge that provisions along the lines proposed in
the Civil Rights Commission staff draft be adopted. The
question of expansion of the special provisions o other
jurisdictions should be revisited if the Civil Rights
Commission study or our experience in future litigation
demonstrates that the existing protections are inadequate.