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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Blackwell, Morton: Files
Folder Title: Voting Rights Act (2 of 3)
Box: 28
To see more digitized collections visit:
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THE WHITE HOUSE
WASHINGTON
November 17, 1981
Voting Rights Memo sent to:
Elizabeth H. Dole
Diana Lozano
Bob D'Agostino
Ken Cribb
Jim Pinkerton
Dave Hoppe
Trent Lott
Paul Weyrich
Howard Phillips
Ron Godwin
Ed Rollins
Ed Feulner
Connie Marsher
Woody Jenlens
Newt Gingrich
THE WHITE HOUSE
WASHINGTON
11/4/81
Martor:
This is meant as a
political follow up of what I
gave you a few days ago.
-JimPinke Por
THE BARON REPORT
1730 M Street, N.W.
Suite
1100
Washington, D:C. 20036
202 659-9470
file Act
TO:
Our Subscribers
October 26, 1981
FROM: Alan Baron
OCT 26 5. 00 '81
No. 136
INSIDE: 1982 Senate Survey: The Eastern States
INF
CONGRESS
Reagan Relations
On taking office, a President's often contrasted with his pre-
decessor. That contrast was particularly favorable to Ronald Reagan in Congressional
relations. Unlike Carter, he had experience in dealing with a powerful state legis-
lature; his style won warmth and friendship from members of Congress; he appointed
experienced White House aides; and he presented a clearcut program.
But as is often the case, there was a tendency to gloss over factors which did
not "fit" the trend. These included some basic political realities; that the closer
the next election, the more independent Congress acts; that being labeled a "rubber
stamp" for the White House is dangerous, even when the President is well-liked; that
the Reagan Administration was allowing too many issues to get away from their control
or influence and failed to turn much campaign rhetoric into concrete proposals.
These are now "coming home to roost" and criticism of Reagan's handling of Con-
gress is escalating. There are several problem areas:
(1) Voting Rights The Administration sent nothing to Congress before the House
extended the current law. To appease Senators Thurmond (R-SC) and Hatch (R-UT), it
may propose relaxing the law. But many Republicans agree with Democratic strategists
that a continuing battle will do nothing but build black turnout in 1982.
(2) Farm Subsidies Despite David Stockman's opposition to key price programs,
the White House did little to shape the battle. That may have been inevitable, due to
the local interests involved. And the final budget figures are probably as low as
could have been expected. But the White House image for legislative competence has
suffered.
(3) Clean Air In proposing a broad set of principles, EPA Administrator Anne
Gorsuch hoped to avoid being labeled anti-environmentalist - and leave the "gutting"
of Clean Air standards to lobbyists on the Hill. But Gorsuch is drawing much ridi-
cule from environmentalists, businessmen and Republicans on the Hill for lack of a
viable program.
(4) Social Security Budget balancing demands cutbacks. Political survival
requires the blame be elsewhere. The Administration now realizes that - thus, its
proposal for a bipartisan commission to recommend changes. But that realization came
only after HHS Secretary Schweiker unveiled his own cutback plan; and the image of
RR as a Social Security cutter is still damaging the GOP.
(5) AWACS Even if the Administration prevails (odds look 50/50), its failure
to see the problem coming has severely damaged its clout.
Underestimating Reagan's ability to deal with Congress would be as great a
mistake, now, as overestimating it was earlier. Reagan has handled social issues
(e.g. abortion) as well as could anyone, given the gap between his own true believers
and the public. His understanding of the need to move his agenda early is comparable
to that of Lyndon Johnson. But comparisons with FDR's first 100 days, so common
last Spring, are not heard around Washington much anymore.
Symbols: Every Vote Doesn't Count During the course of this year, the House
of Representatives voted - by overwhelming (almost three to one) margins - to:
(1) oppose the Reagan Administration's stand (in the World Health Organization)
against restrictions on marketing practices of baby formula manufacturers in Third
World countries;
Copyright 1981 by The Baron Report. Inc. Published every other neck One year, $65. Two years, $115. Overseas Airmail, add 516. per year.
This report is copyrighted and prepared for the confidential information of our clients. Reproduction or quotation without specific permission " prohibited.
Alan Baron, Editor Richard E. Cohen, Associate Editor
THE WHITE HOUSE
WASHINGTON
30 October 1981
TO:
Morton Blackwell
FROM:
Jim Pinkerton
D
RE:
Voting Rights Act
Attached are my musings on
Reagan and the Voting Rights
Act.
Enjoy.
WEAKENING OF VOTING BILL SOUGHT
President Terms Some
Provisions "Pretty Extreme"
This headline appeared in the Washington Post on 19 October,
just two weeks after the House voted 389 to 24 to extend the
Voting Rights Act of 1965 with no changes. NO amendments to
the Act got more than 132 votes in the House.
When it was first signed into law in August of 1965, the Voting
Rights Act affected election laws in Alabama, Georgia, Louisiana,
Mississippi, South Carolina, Virginia, and parts of North Caro-
lina. Over the years federal jurisdiction has been extended to
Arizona, Alaska, Connecticut, South Dakota, Massachusets, New
York, in whole: or in part.
Even after a judge suspended the New York primary in September
because the New York City Council was held to be in violation
of the VRA, it is still fair to say that the controversy sur-
rounding the VRA is hottest in the areas it was originally in-
tended to affect: the deep South.
In the early to mid 1960s, when more than half of all Americans
thought that "civil rights" was the most important issue facing
the country (as opposed to fewer than 10% by the late 1970s; the
number one issue now, according to the polls, is "the economy,'
while in the late 60s and early 70s "the Vietnam War" was the
most critical issue), images of Selma and Klansmen and Freedom
Riders were very much on the minds of Americans, images trans-
mitted to America as a whole from the Deep South states of
Alabama, Mississippi, Georgia, and South Carolina, among others.
Thus whenever the Voting Rights Act comes up in the media,
attention focuses immediately on the 6 states covered in their
entirety by the VRA. One of the most popular and widely under-
stood measures of the effect of the VRA is registration among
voting age blacks. As the table below shows, the change in black
registration before and after the act is dramatic:
1964
1976
Alabama
23.1%
58.1%
Georgia
44.0
56.3
Louisiana
32.0
63.9
Mississippi
6.7
67.4
South Carolina
38.8
60.6
Virginia
45.7
60.7
Pinkerton
222
Given the remarkable change in the political status of blacks
in the South, and given how much of the time and energy of
progressive whites was devoted to advancing civil rights in
the South in the 60s, it is easy to see that even the hint of
changing the VRA, especially when it is being pushed by such
bete noires of the white liberal establishment as Strom Thur-
mond, brings a strong and vociferous reaction not only from
blacks, but from the media and other opinion makers as well.
Thus the actual nature of the proposed changes in the VRA which
Fred Fielding alluded to in the 19 October Post story, which
have nothing to do with disenfranchising Southern blacks, but
are rather technical changes in the VRA, is immaterial. The
hint of change sends the alarm bells ringing in the ears of the
progressive coalition that got the VRA passed in the first place,
a coalition that includes most Northern Republicans.
When Coretta Scott King told the annual convention of Operation
PUSH, meeting in Chicago last summer, that "the number one prior-
ity right now is extending the Voting Rights Act," she did not
pause to qualify her statement or make distinctions.
One can be sure that Vernon Jordan, President of the Urban League
was not taking into account possible fine tuning of the VRA when
he said "The Voting Rights Act is virtually the only protection
black and Hispanic citizens have to ensure their right to vote is
not hampered. Take it away and we are sure to return to a system
of persistent discrimination in which, by a series of overt and
covert local measures, blacks are deprived of their voting rights
and of representation."
This is relatively restrained rhetoric. This is not what the
average black is probably hearing from local political and com-
munity leaders. The proverbial bloody shirt is no doubt being
waved in black and liberal communities across the US.
Benjamin Hooks told AG William French Smith that the NAACP views
the threats to the VRA, as is, as the deepest threat to American
blacks. Smith is charged by President Reagan with proposing possible
changes in the VRA, which expires in August, 1982.
The media have picked up on the story, pregnant as it is with memories
of the civil rights struggle, rich as it is in conflict; between
whites and blacks, Northerners and Southerners, the ancien regime
and the New Politics, between Reagan Federalism and the Great
Society.
The New York Times has called it the "most effective of all civil
rights laws. It has further editorialized that "extension of the
law remains crucial for the right to vote--and the other rights it
ensures.' The Post has supported itsextension, intact, as has the
Christian Science Monitor and a host of other newspapers.
Pinkerton
3
3
3
In an article revealingly titled "Blacks tag voting rights as
key issue," the Monitor squarely addressed the political situation
in 1981:
"Blacks can accept cuts in government
spending, but not cuts in voting rights.
This is the message black leaders are
sending to President Reagan in meetings
with administration officials, from con-
ference halls, and from scholarly think
tanks
Clearly, blacks are unhappy with federal
budget cuts, which they expect will impose
disproportionate- sacrifices on minorities.
Although they believe budget cuts will hurt
them more than whites, blacks say they may
be more able to cope because they are ac-
customed to hardships Black leaders are
not concentrating their fire on reduced fed-
eral spending for welfare programs. Instead
they say the Voting Rights Act (extension of)
is a key to future progress."
Another vocal black supporter of full extension of the VRA is
Rev. Ralph David Abernathy, who was a Reagan backer in 1980.
Policy should never be made on the basis of political popularity.
Principle is more important, and adherence to principle was what
got Ronald Reagan elected to the Presidency in 1980. However, in
cases where a policy determination is a close call, politics be-
comes an important ancillary determining factor.
We have seen that the politics of the North, of the blacks, and
of the progressive wing of the Establishment are clearly lined
up behing extension of an intact VRA. Any changes in the VRA
will surely cost the administration points with these groups.
But what are the political advantages of modifying the VRA? In
my opinion, there are virtually no reasons of expedience for
tinkering with the VRA.
The following paragraph appeared in the Post last June:
"Opponents of extending the law's key provisions,
such as Senator Strom Thurmond and many conserva-
tive Democrats in the South, object to preclear-
ance (one of the aforementioned 'key provisions')
as an insult to the South."
Pinkerton
4 4 4
In my opinion that destription of the VRA's opponents takes
into account the depth and breadth of opposition to a simple
extension of the VRA.
Conservative Southern Democrats have controlled Southern
politics for a century precisely because things like the VRA
did not exist for most of that period. The good ole boy
Southern Democrats recognize that their control has started
to unravel, and that the VRA has had a lot to do with that.
Strom Thurmond, a former conservative Southern Democrat, and
now a conservative Southern Republican, is correctly lumped
in with his former party brethren in the aforementioned Post
story. His mindset is still very much similar to that of the
party he was a member of for the first 63 years of his life,
at least when it comes to the political structure of race in
the Deep South.
When the average person thinks of the impact of the VRA, he
surely: thinks of the feds coming in and eliminating poll taxes,
stopping intimidation and coercion, etc. The Justice Dept.
has effectively ended those sort of practices, and nothing in
the changes floated publicly by Fielding two days ago. in the
Post would allow the nightriders to return.
Most of the litigation surrounding the VRA, not to mention the
controversy, concerns federal examination of election laws and
redistricting. A typical situation is a city in a Deep South
state with, say, 40% blacks. This city has five city council
slots. If the city were broken down into five districts, pre-
sumably two would encompass the black sections of the city, and
would almost certainly elect 2 blacks to the city council.
Politics being politics, the whites, with 60% of the population
of the city, would elect 3 whites. In a situation like this,
though, whoever gets to draw the district lines can determine
who will get elected. Instead of creating 2 districts that are
all or nearly all black, and three districts that are all or
nearly all white, the linedrawers can draw the lines so that
there are white majorities in all five districts. Thus a city
with 40% blacks will have no black representatives. This is
the way the Democratic Party has kept control in those areas
where the blacks could even vote.
A very common tactic is the at large election. If the blacks
can vote and they are not distributed conveniently in the city
so as to allow the creation of 5 white majority districts, then
the linedrawers can simply abolish the lines. The city, which
is 60% white, becomes in effect one big district with 5 repre-
sentatives, all of whom, given the nature of Southern politics,
will be white.
Much is made in the papers about the tremendous growth in the
Pinkerton
5 5 5
number of black elected officials in the US. There are now more
than 4500 across the US, with 60% of them in the South. While
it is indeed striking that the number of black elected officials
in the South has gone from near zero prior to the VRA to 2768 in
1979, it is also striking that this figure of 2768 represents
about 5% of the total elected officials in the South, where blacks
compose about 25% of the population.
In other words, the VRA really hasn't gone very far in terms of
giving blacks equal representation in the South. To be sure, it
should be noted that blacks are no better represented in other
regions in the country, relative to their numbers. The problem
the blacks have is that they are too spread out, geographically,
to be a force in national politics. There are 110, districts in
the country with 15% or more blacks, but only a couple of dozen
with black majorites. Even of these districts, blacks only
control 18. If Congressional representation were in lockstep
with their numbers, the blacks would have more than 50 seats
in Congress, and a dozen Senate seats. As it stands, blacks
constitute a paltry 3% of the Congress.
If the VRA were enforced with an iron hand in the South, it
would be a while before blacks composed 25% of elected officials
up and down the line, but there would be an explosion in the
number of black elected officials, and most of the losers in
this process would be the Democrats that have dominated Southern
politics since Reconstruction.
I say this with confidence, not only because most people in office
in the South are Democrats, but because most whites in the South
are closer to the Republicans than the Democrats, in terms of
national party allegiance. Even if they are nominal Democrats,
white southerners share the view S of the Republicans on defense,
the economy, and most social issues. A century, of Democratic
gerrymandering has muzzled the trend anong whites in national politics,
toward Kembhons
so that Democratic Congressmen go to Washington and support the
national party on issues that won't fly at all back home in
Georgia or Alabama. If the VRA were enforced, the blacks would
get their own districts, which they very much want, and the re-
maining white districts would start trending heavily Republican.
The point is that the VRA has the effect of helping all minorities,
assuming it is enforced. The Republicans are still very much a
minority in the South, just like the blacks. Thus the same pro-
cess which would lead to sending a host of blacks, who unfortunately
would all still be Democrats, from the South to Washington, would
also lead to the election of a host of white Republicans.
Pinkerton
6
6
6
As evidence for this assertion I offer the opening paragraphs
of an article that appeared in the Post last 20 May, under the
headline "A New Map of Texas, Voting Rights Act Is Helping GOP
In Battle Over Redistricting Plan"
"Austin--The Voting Rights Act may die in
Congress next year at Republican hands,
but in the redistricting battle here the
act has become the party's ally in its bid
to take control of Congress.
The act assures minorities of the opportunity
of proportional representation, if possible,
and because of the demographics of Texas,
what may be good for blacks and Mexican-Am-
ericans may also be good for Republicans.
"We didn't know it would turn out this way
when they passed the Voting Rights Act, but
it sure helps us now, one Republican strategist
said.
This is because, by carving out predominantly
black or Hispanic districts, Republicans would
have a better chance to win the adjacent, heavily
Anglo districts
The political climate is changing so rapidly
that people joke about Anglo Democrats, who have
controlled politics here since Reconstruction,
as an endangered species
The law is the law;' one Republican said. "It
guarantees the rights of political minorities
We think the same principles ought to apply to
the Republican Party. "
The current political estimate is that Texas, whose Congressional
delegation consists of 19 Democrats and 5 Republicans, could
have as many as 13 Republicans after the '82 election, and at
least 8. The blacks, however will be happy; because they will
have a black district in Dallas next year, assuring not only
that a second black Texan goes to Washington, but also that
white Democrats Mattox and Frost are doomed.
Goldwater swept the Deep South in 1964, the last Presidential
election held before passage of the VRA, but Republicans won
only 7 of the 37 seats in the House from the 5 Deep South states.
Of these, 4 were lost back to the Democrats in 1966, which was a
banner year for Republicans everywhere else. The only gain was
Albert Watson of SC, who switched from being an entrenched Demo-
crat to an entrenched Republican, along with Thurmond. At the local
Pinkerton
7 7 7
level, the same Democrats, who happily voted for Goldwater
even as they voted for each other for all the local offices,
remained in charge. Although the Republicans have carried
South Carolina in four out of the last five Presidential
elections, and Mississippi has gone Democratic only once in
the last 16 years, the situation at the state level has hardly
changed. Below is the Republican percentage of representation
in the combined upper and lower houses of SC and Miss.:
South Carolina
Mississippi
1980
12.7
4.7
1978
11.2
4.7
1976
8.9
2.9
1974
11.21
2.7
1972
14.1
2.3
1970
7.7
2.3
It is hard to see any progress taking place in either state.
Such grotesque majorities for Democrats are common throughout
the South, which, as I have to keep emphasizing, is still a
one-party region at the state and local level.
But the Democrats are running scared. The VRA scares them,
because they know that black Democrats and white Republicans
will replace the George Wallace types still in charge across
the South. Below are the figures for the number of proposed
election law changes submitted from jurisdictions in each state
to the Justice Dept. for review as per the VRA.
# of changes sub-
# of changes
# of change
mitted between 1965-1970
1971-1975
1976-80
Alabama
16
614
1085
Georgia
158
935
1998
Louisiana
5
882
1709
Mississippi
32
503
654
South Carolina
308
834
1208
Virginia
57
1093
1780
North Carolina
2
485
711
578
5336
9145
Clearly the good ole boy network in the South has started to com-
prehend what the VRA portends for the Democratic party in the
South if it is not revamped. Just as the Texas Republican took
a long time to understand that the VRA helped his cause in the
above Post article, the mayors and state reps from Catahoula
County, La. and Hoke County, NC understand that the VRA dooms
the white-controlled Democratic party.
Pinkerton
8 8 8
For all the talk about the Boll Weevils and how they helped
the President on the budget and tax cut votes, they are not
our friends. First of all, they voted the way they did because
that's what their districts demanded, which means that there
should be Republicans in there in the first place. Secondly,
they can be counted on by the Democratic leadership for most
votes, especially procedure votes, setting rules, committees,
etc. Thirdly, the will still support the national Democratic
ticket, unless the presidential nominee is a real fluke, such
as McGovern. I don't know of a single Southern Democrat, in
office, who supported Ronald Reagan last year. Fourthly, Demo-
crats, because they are Democrats, will continue to try and
stick it to us in things like redistricting, pork barreling,
etc. Finally, Southern Democrats always tend towards populism,
which, while it may be congruent with this administration on
some social issues, stands just as surely athwart Republican
policy on taxes and many spending issues. Recall that Wayne
Dowdy, who just got elected to Congress from Mississippi as
a Democrat last July to take Hinson's seat, said that he was
running against "the White House, the Chamber of Commerce, and
every oil company in the world."
The limitation of the VRA will keep the above type Democrats
in power. They will still be whites, and probably fairly con-
servative at heart, but they will have to trend liberal to
keep the blacks happy (recall that Hinson only won in '78 and
'80 in Mississippi because the blacks in the Mississippi 4th
district, dissatisfied with the white Democrat, ran a black
independent).
For the administration to oppose any part of the VRA plays into
the hands of the white Democratic party. When Jamie Whitten votes
to keep the VRA intact, it is clear that even the most venerable
man in Congress is scared to alienate the black vote (308, by pop.
in his district). Their strategy is to let the Republicans be
the heavies. Hopefully this administration will take out the oner-
ous provisions, or enforce them half-heartedly at Justice, and
thus the Democrats in power in the South will continue to gerry-
mander themselves into perpetual power, while the blacks heap
their obloquy on Ronald Reagan.
Let the last word on this particular point be said by Harry Dent,
a Republican operative from South Carolina, who was quoted in the
Post last July as follows:
"The whole question is kind of passe
in the South. But the question of
voting rights is not passe for black
people.'
Pinkerton
10- 10 10
9 9 9
Dent went on to say that most white southerners have "learned
to live with it (the VRA) meaning there is not much to be
gained among them by an attempt to kill the act or seriously
weaken it. But blacks do care deeply about the law, which
in 15 years has greatly enhanced their political power through-
out the South.
For all the consideration we have give to the VRA and its
effect on Southern politics, some thought must be given to
the impact any change in the VRA instituted by this admini-
stration would have on a marginal Republican constituency,
the moderates and liberals.
Ronald Reagan got only a negligible number of black votes in
the 1980 election, but that was not for lack of trying. The
President worked hard to get his message across to blacks and
other minorities, unfortunately with only limited success.
However, the fact that he did try was widely noted and approved
of by the media, which in turn communicated this image to the
voters. Here is part of an article that appeared in the NY Times
on 5 October.
"Similarly, well advertised Republican
Party appeals to blacks and black en-
dorsements of Mr. Reagan were important
to the party, according to Senate Major-
ity Leader Howard H. Baker Jr. of Tenn.
They may have won only a few votes, he
said, but they 'made Republicans decent
and acceptable to a lot of whites. It
erased 'that remnant of racism in the
Republican image, he added."
In my opinion the VRA is a key symbol to John Anderson-type
voters, who are socioculturally of Republican stock. "Andersonism"
has its roots in precisely the places where the Republican party
took root 125 years ago--in Wisconsin, Illinois, Massachusets,
Vermont, and Connecticut. I like to think of them as "post-industrial
liberals;" that is, they are relatively conservative on economics,
but liberal on social issues.
Most government programs that help blacks have a price tag, and
the Andersonites flinch at the cost. But the VRA is essentially
free, at least in the short run, and I'd be willing to bet that
Andersonites support the VRA in numbers greater than even Northern
Democrats.
These voters can be turned out for the right kind of Republican,
such as Sen. Percy or Governor Thompson of Illinois. Both of them
did verv well in the black areas of Chicago, which enhanced
1. No votes
2. Demo must not he
Lettist move lithe - penditive Sway
3. Ball Policy to
agravelize Fal. Justice Dept
4, binnecter back five
S, Low will required on books
6, Why encourage radica (s?
7. Back door Proportional Depresmentation
8.
Quolus in Legislatine assenblies
9. Mory Ron De Himis
Advance a Gop MSouth
Earl 511 at expire
Moral
Funther freends retual to go will companing into convine opposition
Procedured Issue
Political
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release
November 6, 1981
STATEMENT BY THE PRESIDENT
Several months ago in a speech, I said that voting was the
most sacred right of free men and women. I pledged that as
long as I am in a position to uphold the Constitution no
barrier would ever come between a secret ballot and the
citizen's right to cast one. Today I am reaffirming that
commitment.
For this Nation to remain true to its principles, we cannot
allow any American's vote to be denied, diluted or defiled.
The right to vote is the crown jewel of American liberties,
and we will not see its luster diminished.
To protect all our citizens, I believe the Voting Rights
Act should and must be extended. It should be extended for
ten years -- either through a direct extension of the Act
or through a modified version of the new bill recently passed
by the House of Representatives. At the same time, the
bilingual ballot provision currently in the law should be
extended so that it is concurrent with the other special
provisions of the Act.
As a matter of fairness, I believe that states and localities
which have respected the right to vote and have fully complied
with the Act should be afforded an opportunity to "bail-out"
from the special provisions of the Act. Toward that end, I
will support amendments which incorporate reasonable "bail-out"
provisions for States and other political subdivisions.
Further, I believe that the Act should retain the "intent"
test under existing law, rather than changing to a new and
untested "effects" standard.
There are aspects of this law, then, over which reasonable
men may wish to engage in further dialogue in coming weeks.
As this dialogue goes forward, however, let us do SO in a
spirit of full and total commitment to the basic rights of
every citizen.
The Voting Rights Act is important to the sense of trust many
Americans place in their Government's commitment to equal rights.
Every American must know he or she can count on an equal chance
and an equal vote. The decision we are announcing today benefits
all of our citizens by making our democracy stronger and more
available to everyone.
###
Red
Document No.
Diana Lozano
Thelma Duggin
WHITE HOUSE STAFFING MEMORANDUM
DATE:
1/22/82
ACTION/CONCURRENCE/COMMENT DUE BY:
VOTING RIGHTS
SUBJECT:
ACTION FYI
ACTION FYI
VICE PRESIDENT
GERGEN
MEESE
HARPER
BAKER
JAMES
DEAVER
JENKINS
STOCKMAN
MURPHY/GARRETT
ANDERSON
ROLLINS
CANZERI
WILLIAMSON
CLARK
WEIDENBAUM
DARMAN
USS
BRADY/SPEAKES
DOLE
ROGERS
DUBERSTEIN
BRADLEY
FIELDING
FULLER
Remarks:
Testimony is to be delivered Wednesday. Q. and A. will be circulated
later today. Please review both for discussion at a meeting that
Ed Meese will be setting up. Thank you.
Richard G. Darman
Assistant to the President
and
Deputy to the Chief of Staff
(x-2702)
DRAFT
I am grateful for the opportunity to appear before this
Subcommittee to present the Administration's views regarding
proposed amendments to the Voting Rights Act of 1965.
There is perhaps no more important piece of legislation
to, come before this Congress than the one now being considered.
As President Reagan has so often emphasized, the right to
vote is "the most sacred right of free men and women." It
rightfully claims this lofty status because it is, in point of
fact, preservative of all other rights. The people of America
recognized as much in 1870 by their adoption of the Fifteenth
Amendment to the Constitution. Since then, they have
supported efforts to expand the franchise and to secure its
exercise free from force, fraud and unlawful discrimination.
By means of constitutional amendment, legislative enactment
and judicial rulings over many decades, the country has
demonstrated its continuing commitment to the truths that all
men are created equal and that governments derive their just
powers from the consent of the governed. It is these ideals
that must guide the deliberations of this Subcommittee and the
full Senate today and in the weeks ahead as they carefully
consider the matter at hand.
The Voting Rights Act unmistakably stands as the center-
piece of those legal protections that guard against denials
or abridgements of the right to vote. Enacted in 1965 because
some states and localities sought to prevent blacks from
exercising this most precious right, the Act opened a new
DRAFT
- 2 -
chapter in the struggle to achieve real equality for racial
minorities. The Act's principal purpose was to provide badly
needed enforcement tools for carrying into effect the
guarantee of the Fifteenth Amendment that no one shall be
deprived of the right to vote on account of race.
The present Act contains both permanent and temporary
provisions. The permanent provisions, which apply nationwide,
include Section 2 of the statute which generally forbids
electoral devices and procedures that deny or abridge the
right to vote because of race, color, or (since 1975) membership
in a language minority group.
The temporary or special provisions of the Act, which include
Sections 4 and 5, are directed against only a
small number of States (and somer subdivisions in other states).
Located primarily in the South, these jurisdictions were
historically associated with efforts to deny full political
equality to blacks. The special provisions required these
covered jurisdictions to submit for preclearance by the
United States Attorney General or the U.S. District Court
for the District of Columbia all changes in electoral practices
or procedures. Such changes are allowed to go into effect
only after the submitting jurisdiction satisfies the Attorney
General or the district court that the revisions have neither
the purpose nor the effect of denying or abridging the right
to vote on account of race or membership in a language minority
group.
DRAFT
- 3 -
DHAFI
The special provisions also included a so-called "bail-out"
mechanism, whereby a covered jurisdiction could after a
certain number of years apply to remove itself from special
coverage on a showing that no prohibited test or device had
been used during a set period. At the time of its original
enactment, the Act set this period at five years.
In 1970, Congress reviewed the then five-year history of the
Act and found sufficient evidence of continued racial discrimination
in voting in the selected jurisdictions to warrant an extension
of the preclearance provisions for another five years.
In 1975, Congress again revisited the issue, extended the preclearance
provisions for another seven years (until August, 1982), and
brought within their coverage for ten years additional jurisdictions
-- in both the North and the South -- having sizeable language
minorities.
Today, the question is once again before Congress: Should
these special provisions be extended yet a third time? In
the Administration's view, that question must be answered affirmatively.
Measured by almost any yardstick, the results of the Act are
impressive. Literacy tests, poll taxes, and similar devices
which led to the original Voting Rights Act have been effectively
eliminated. Minorities, especially blacks in the South,
have made dramatic gains in voter registration and election
to public office.
For example, the U.S. Commission on Civil Rights estimated in
DRAFT
1965 that only 6.4 percent of eligible blacks were registered to
vote in Mississippi. By 1976, that figure has reached 67.4
percent. Similarly, in South Carolina, minority voter registration
since 1965 has increased from 34.3 percent at the time the
Act was passed to 55.8 percent in 1980. In the South as a
whole, black voter registration in 1976 was estimated to be nearly
60 percent. Moreover, the number of black elected officials
in the South has increased dramatically, from less than 100
in 1965 to more than 2,000 in 1980. Louisiana and Mississippi,
for example, rank among the top four states in the nation in
the number of black elected officials, and the Georgia State
Assembly has the highest number of black members in the
country.
Notable gains have also been achieved in a number of covered
jurisdictions having sizeable Hispanic populations. In
Texas, voter registration among Hispanics has increased by
two-thirds in recent years, and the number elected to public
office has increased by 30 percent since 1976. Even more
dramatic is the case of Arizona, where Hispanics constitute
16.2 percent of the population and 13.2 percent of all elected
officials.
These encouraging statistics are but a quantitative measure
of a significant qualitative change for the better, especially
in the South, since the Voting Rights Act became law almost 17
years ago. There is no doubt whatsoever that the Act has
contributed greatly toward the creation of a truly non-
discriminatory political and social environment.
DRAFT
DRAFT
- 5 -
Heartening as this news is, it is offset by the sad truth
that racial discrimination in the electoral process still
exists in certain covered jurisdictions. The Justice Department's
enforcement experience in this area still demonstrates
that some political jurisdictions in the country have made
insufficient progress and that continued federal oversight
of those jurisdictions is necessary. There is thus no question
m
that the special provisions of the Voting Rights Act should
be extended for an additional period.
As the Senate considers the merits of the various legislative
proposals before it, its deliberations should, in my view,
be guided by four fundamental principles.
The first and plainly most important consideration is that
1
the right to vote not be denied or abridged on account of
race or membership in a language minority group. That principle
is sacrosanct and must not be compromised in any way.
Second, it is imperative that we not lose sight of the fact
that, while the Voting Rights Act was enacted in part as a
prophylactic safeguard against racial discrimination in
certain jurisdictions having a history of discrimination in
voting, it had another and more critical purpose as well,
which was forward-looking and constructive in nature. That
purpose was to encourage states and localities to bring
DRAFT
DRAF I
blacks and other racial minorities into the mainstream of
American political life. In revisiting the statute in 1982,
1
the emphasis should be placed on the positive objectives of the
legislation rather than dwelling on the chapter that led to
passage of the Act 17 years ago.
Third, even while deliberating on an extension of the
Act's special provisions, due recognition must be given to
3
the very real progress made since the Voting Rights Act was
enacted. This is not 1965, and the racial problems of that
year are not, thankfully, those of 1982. The march toward
full equality in the electoral process continues. While we
cannot disregard the distance yet to be traveled, we should
also credit the milestones that have been met, not the least
of which are the impressive gains in minority registration
and representation to which I just referred. Americans of
all races can take pride in the fact that many jurisdictions
against whom the Act's special provisions are directed have
made dramatic and lasting strides to correct past abuses.
X
Fourth, in the same breath that we speak of an extension of
the Act, we must also underscore its exceptional character.
It vests extraordinary powers in the National Government over
matters that, consistent with the principles of Federalism,
have traditionally rested within the province of state and
local control. Moreover, it establishes a dual pattern of
enforcement, whereby some parts of the country are subjected
DRAFT
- 7 -
DRAFT
to more stringent legal obligations than other areas. Based
on the evidentiary record before it, Congress felt in 1965
that there was good and sufficient reason -- which indeed there
was,-for differential treatment. Even so, the Supreme
Court, in sustaining the constitutionality of the Act, took
care to note the temporary nature of the special provisions,
the fact that particular jurisdictions had been found by
Congress to have violated their constitutional obligations,
and the fact that these jurisdictions would be given an
opportunity to get out from under the Act's special burdens.
With these principles in mind, we at the Department of Justice,
in response to a request that President Reagan made of me on
June 15, 1981, undertook a comprehensive assessment of the
Act's history to date; extant or likely abuses of voting
rights that may require special scrutiny; the adequacy of the
Department's powers under the Act; the desirability of making
any changes in the existing legislation; and the feasibility
of extending the Act's coverage to voting rights infringements
not now covered by the Act. As one element of this review, I
and members of my staff met personally with a number of civil
rights groups and other organizations, members of Congress
and their staffs, Governors and other state and local representatives.
The results of our study can be simply stated. The Voting
Rights Act of 1965 has worked well, but the need for its
special protection continues. The President has therefore
endorsed an extension of the Act in its present form for a
DRAFT
DRAFT
- 8 -
period of 10 years. This is longer than any previous extension
voted by Congress.
At the same time, the President pointed out, and our analysis
of the history of enforcement under the Act confirms that
covered states or political subdivisions should have the
opportunity to demonstrate that they have indeed removed
past practices of racial discrimination from their electoral
processes and have been in compliance with the law for many
years. Accordingly, if the Senate were to include in the
scluded, velo? and
Act a provision allowing such governmental units to bail out
prior to the expiration of the 10 year extension we are
recommending, the Administration would support such a modification.
In this connection, there are now pending before this Subcommittee
two bills that would amend the current. bail-out provision
in Section 4 of the Act to release jurisdictions from the
preclearance requirements upon meeting specified criteria.
The Department will readily work with this Subcommittee in the
weeks ahead to seek to devise from the various alternatives
under consideration a workable and fair bail-out provision
X
to be included in the Senate Bill.
On another point relevant to extension, let me say a few
words about the bilingual election provisions of the Act.
The bilingual protections of Sections 4 and 203 were added in
1975, to secure the right to vote for those citizens who are
not fluent in the English language. In our meetings with
DRAFT
- 9 -
DRAFT
various groups last summer, we heard numerous expressions of
support for the bilingual provisions. Citizens whose first
language is not English have been afforded by these provisions
the opportunity to participate effectively in the election
process. Our limited experience since 1975 indicates that
the bilingual procedures have, by and large, worked well.
As a result, we believe that Congress should place the bilingual
good
provisions on the same footing as the special coverage provisions,
uniformly extending the Section 4 bail-out eligibility date
to 1992, and also similarly extending Section 203.
In addressing the question of extending the life of the Act
to August, 1992, let me make clear that only the special
coverage of Section 4 requires congressional attention,
since only that coverage would be subject to termination
in August of this year. Section 2 of the Act is permanent
legislation, and no action by Congress is needed to continue
its protections.
The House has passed legislation that would dramatically
change Section 2 of the Voting Rights Act to permit proof of
ects
test.
a violation based solely on election "results. This change
in the Act's permanent provision runs counter to a Supreme
Court ruling handed down in 1980. As the plurality decision
in City of Mobile V. Bolden, 466 U.S. 55 (1980), made clear,
Section 2 of the Voting Rights Act, like the Fifteenth Amend-
ment, currently prohibits all state and local governments,
DRAFT
DONE 1
- 10 -
both North and South, from employing any voting practice or
procedure designed or purposefully maintained to discriminate
on the basis of race or color. Proof that the challenged
election practice was intended to discriminate against a
racial minority is essential to a claim under both the Fifteenth
Amendment and Section 2 of the Voting Rights Act.
The proposed replacement of a "results" or "effects" test for
the existing "intent" standard in Section 2 effectively imposes
upon the entire country a legal test that since -1965 Congress
has seen fit to apply only to certain jurisdictions that had
been demonstrably derelict in their failure to protect minority
voting rights -- and, even then, only as to voting changes
adopted by those jurisdictions. No evidence was presented
either in testimony before the House committee or in the
House floor debates that there have been voting rights'
violations throughout the country so as to justify nationwide
application of an effects test. So major an amendment should
not be endorsed by Congress without compelling and demonstrable
reasons for doing so. The inclusion in Section 2 of such a
test would call into question the validity of state and
local election laws and systems that have long been in
existence, not just in the South, but in all of America.
work
Any move by Congress in this direction should not be
taken without full appreciation of all its ramifications.
DRAFT
DRAFT
- 11 -
In particular, under a nationwide effects test, any voting
law or procedure in the country which produces election results
that fail to mirror the population makeup in a particular
community would be vulnerable to legal challenge under Section
2. Historic political systems incorporating at-large elections
and multi-member districts -- which had never before been
questioned under either the Act or the Constitution --
would suddenly be subject to attack. So, too, would be many
redistricting and reapportionment plans. Nor would the
reach of an amended Section 2 be limited to statewide legislative
elections; it would apply as well to local elections, such
as those involving school boards and city and county governmental
offices. And it would apply to existing voting practices
and procedures of longstanding application as readily as to
the most recent voting change.
To entertain this kind of amendment to the Act's permanent
provisions is inevitably to invite years of extended litigation,
leaving in doubt the validity of longstanding state and
local election laws in the interim and inviting the federal
courts, on no more than a finding of disproportionate election
results, to restructure governmental systems that have been
in place for decades.
(II
That prospect cannot be lightly dismissed. The Voting Rights Act
in its present form has, by all accounts, worked extremely
;
DRAFT
DRAN
- 12 -
well. Its provisions have been subjected to the most meticulous
judicial scrutiny in almost every context imaginable. Its
reach and coverage are now well defined and generally understood.
In my meetings last summer with various civil rights groups,
they were unwavering in their praise of the existing legislations
as one of the most effective statutes ever passed by Congress.
They, too, expressed concern that amendments would generate
yet another prolonged period of disruptive and unsettling
litigation. Their strongly held view at that time was: "If
it is not broken, don't fix it." There is much common sense
to that admonition.
Mr. Chairman, the Voting Rights Act has opened up access to
our political process for millions of minority citizens.
It has proven to be impressively effective, but the job is
not yet finished. Consequently a straight 10-year extension
of the Act is required to ensure continued federal protection
of the cherished right to vote, as guaranteed by the Fifteenth
Amendment.
The Administration therefore fully supports S. , co-sponsored
by Senators
and
Thank you. I will be happy to answer any questions.
DRAFT
Copies to EHD
Red
fortor Blackwel PR 15-1982
Diana
Voting Rights File DOCUMENT No. 068002PD
Thelma D
Voting
Bill T
OFFICE OF POLICY DEVELOPMENT STAFFING MEMORANDUM
Rights
DATE:
4/14/82
ACTION/CONCURRENCE/COMMENT DUE BY:
FYI
SUBJECT:
Dole Bill
ACTION
FYI
ACTION
FYI
HARPER
SMITH
PORTER
UHLMANN
BANDOW
ADMINISTRATION
BAUER
DRUG POLICY
BOGGS
TURNER
BRADLEY
D. LEONARD
CARLESON
OFFICE OF POLICY INFORMATION
FAIRBANKS
GRAY
FRANKUM
HOPKINS
HEMEL
OTHER
KASS
Elizabeth Dole
B. LEONARD
MALOLEY
REMARKS:
copy to M walle
Sent
EDWIN L. HARPER
ASSISTANT TO THE PRESIDENT
FOR POLICY DEVELOPMENT
(X6515)
THE WHITE HOUSE
WASHINGTON
April 14, 1982
Elizabeth Dole
Assistant to the President for
Public Liaison
Ed Harper asked that I send the
attached to you for your information.
Early H. W.Rah ROCK
MEMORANDUM
April 13, 1982
Subject:
Dole Bill
This will confirm my original view, following further research,
that the Dole proposal is quite acceptable, but needs tightening
in two areas indicated to you last night:
The provision on line 17 of page 1 to the effect that the
Voting Rights Act protects "minority groups" protection
should be amended. The words "minority groups" should be
replaced with "citizens of the United States." The
"minority group" language probably comes from a segment
of the Supreme Court decision in White V. Register, but
that quote immediately modified by references to "its
members" - who must continue to be the sole focus of
protection under the Voting Rights Act. The shift of
focus to group protection could have exceedingly adverse
consequences on the development of the law.
The list of factors set forth from line 20 of page 1 to
line 23 of page 2 involves one major addition/revision to
the factors cited in the two leading pre-Mobile V. Bolden
cases cited in the Dole legislative history. Neither
White V. Register nor Zimmer V. McKeithen, addresss the
Section "G" factor, (lines 16 - 18 of page 2), and should
be deleted. Section "G" invites, indeed mandates the
courts to engage in an extraordinarly wide-ranging
inquiry into matters extraneous to the voting process -
the alleged existence of "invidious discrimination in
such areas as education, employment, economics, health,
and politics." Such wide-ranging findings could serve as
predicates to and proof in massive Title VI and Title VII
litigations likely to follow from any Section "G"
findings of "invidious discrimination.' Section "G" may
even permit findings of "invidious discrimination" to be
made on an effects test basis, i.e. may permit findings
sufficient to authorize Section 2 violations on the basis
of merely statistical evidence of "discrimination" in the
cited areas. As neither White nor Zimmer list the
Section "G" factors (in any but the most oblique manner),
the courts may well treat the Section "G" inquiry as
particularly mandated. I believe that Dole can and
should be persuaded to drop the provision and believe
that such change is our most significant need in the Dole
bill.
There are other problems with the Dole version of Section
2, but, as noted, we can clearly live it -- it is a
genuine compromise between two dug-in Senate positions on
the Voting Rights bill, and a significant contribution to
ending the current impasse.
Purpose:
IN THE SENATE OF THE UNITED STATES
Cong,
Sess.
S. 1992
H.R.
(or Treaty
)
SHORT TITLE
(title)
To amend the Voting Rights Act of 1965 to extend the effect
of certain provisions, and for other purposes.
( ) Referred to the Committee on
and ordered to be printed
( ) Ordered to lie on the table and to be printed
INTENDED to be proposed by Mr. DOLE
Viz:
Strike all after the enacting clause and insert in lieu thereof
1
the following:
2
SEC. 1. That this Act may be cited as the "Voting Rights Act
3
Amendments of 1981".
4
SEC. 2. Section 4 (a) of the Voting Rights Act of 1965 is amended
5
by:
#
6
(1) striking out "seventeen" each time it appears and inserting
7
in lieu thereof "twenty-seven"; and
8
(2) striking out "ten" each time it appears and inserting in lieu
thereof "seventeen".
9
SEC. 3.
Section 2 of the Voting Rights Act of 1965 is amended by -
10
(1) inserting "(a)" after "2.", and
11
(2) by adding at the end thereof a new subsection as follows:
12
"(b) (1) A.violation of this section is established when, based on an
13
aggregate of factors, it is shown that such voting qualification or pre-
14
requisite to voting, or standard, practice, or procedure has been imposed
15
or applied in such a manner that the political processes leading to nomination
16
and election in the state or political subdivision are not equally open to
17
participation by a minority group protected by subsection (a). "Factors"
18
to be considered by the court in determining whether a violation has be'
19
established shall include, but not be limited to:
20
(i) Whether there is a history of official discrimination
21
cr political subdivision which touched the right of the member
1
democratic process;
2
(B) Whether there is a lack of responsiveness on the part of elected
por Fecular
3
officials in the state or political subdivision to the heeds of the members
4
of the minority group;
5
(C) Whether there is a tenuous policy underlying the state's or
6
political subdivision's use of such voting qualification or prerequisite to
7
voting, or standard, practice, or procedure;
B
(D) The extent to which the state or political subdivision uses or
9
has used large election districts, majority vote reuqirements, anti-single
10
shot provisions, or other voting practices or procedures which may enhance
C
11
the opportunity for discrimination against the minority group;
12
(E) Whether the members of the minority group in the state or political
?
13
subdivision have been denied access to the process of slating candidates;
V.
14
(F) Whether voting in the elections of the state or political sub-
15
division is racially polarized;
16
(G) Whether the members of the minority group in the state or political
17
subdivision suffer from the effects of invidious discrimination in such
18
areas as education, employment, economics, health, and politics; and
19
(H) The extent to which members of the minority group have been,
20
elected to office in the state or political subdivision, provided that,
21
nothing in this subsection shall be construed to require that members
22
of the minority group must be elected in numbers equal to their propor-
23
tion in the population." "
24
25
SEC. 4. Section 203(b) of the Voting Rights Act of 1965 is amended
26
by striking out "August 6, 1985" and inserting in lieu thereof "August 6,
27
1992".
28
29
30
KANSAS CITIES WITH AT-LARGE ELECTIONS AND LOW MINORITY REPRESENTATION
Population
*V
1970*
1980
No. On City
Non-
Non-
No. Minorities Elected
!i
Minority
City
Council
White
White
Black
1970
1971
1972
1973
1974
1975
1976
1977
1978
1979
1980
Elected:
1970-198
Carden City
5
2%
28%
12
0
0
0
0
0
0
0
0
0
0
0
or
Junction City
5
16%
35%
22%
0
0
0
0
0
0
0
2
1
1
1
108
I
Kansas City, Ks.
3
21%
33%
25%
0
O
0
0
0
0
0
0
0
o
0
02
Liberal
5
5%
25%
5%
1
0
0
0
0
0
0
0
0
0
0
28
Michita
5
3%
19%
11%
1
1
0
0
0
0
0
0
0
o
0
42
*
1970 Census did not include Hispanics as nonwhite. 1980 Census did. Thus,
cities with large Hispanic population show large increase in nonwhite pop-
ulation between 1970 and 1980.
SUMMARY ON COMPROMISE AMENDMENT
Background
As you are aware, the most controversial provision of the House-
passed Voting Rights Act bill concerns a proposed change in Section 2.
Section 2 contains a general prohibition against discriminatory voting
practices. It is permanent legislation and applies nationwide. In
the 1980 case of Mobile V Bolden, the Supreme Court held that Section 2
prohibits only intentional discrimination. The House bill would amend
Section 2 to prohibit any voting practice having a discriminatory "result".
Much of the intent/results controversy has evolved around whether the
Mobile case changed the law. Prior to Mobile, the courts used an
"aggregate of factors" or "totality of circumstances" test in voting
rights cases. The leading cases articulating this standard are the Supreme
Court case of White V Regester, and the Fifth Circuit opinion of Zimmer V
McKeithen. According to Zimmer and White, the standard to be applied
was whether, based on an "aggregate of factors" the "political processes
were not equally open to the members of the minority group in question".
And the "factors" looked at by the courts in this line of cases included
indicia of intentional discrimination, as well as the "result" of the
challenged voting practice.
Proponents of the "result" standard in Section 2 have argued that the
White/Zimmer "aggregate of factors" test was a "results" test, which the
subsequent Mobile case drastically changed. Thus they have argued that
by placing a results standard in Section 2, the courts will return to use
of the White/Zimmer test. Intent advocates, on the other hand, have
pointed to language in the Mobile decision indicating that White was
essentially an "intent" case. Thus they have argued that the White/Zimmer
approach was simply an articulation of various objective "factors" which
could be relied upon to circumstantially proye discriminatory intent.
Key Provisions of the Compromise Amendment
Because neither side of the intent/results controversy has expressed
disagreement with the pre-Mobile case law, we have simply codified that
case law in our compromise amendment. Specifically, the compromise would
add a new subsection to Section 2 explicitly stating that a violation of
that section is established when, based on an "aggregate of factors", it
is shown that the "political processes leading to nomination and election
are not equally open to participation by a minority group". The subsection
then provides a nonexclusive list of factors to be considered by the courts,
the same factors articulated in White and Zimmer. These factors are:
I'
1. Whether there is a history of official voting discrimination
in the jurisdiction;
2. Whether elected officials are unresponsive to the needs of the
(21
minority group;
(3).
3. Whether there is a tenuous policy underlying the juris-
dictions' use of the challenged voting practice;
4. The extent to which the jurisdiction uses large election
districts, majority vote requirements, anti-single shot
provisions, or other practices which enhance the opportunity
for discrimination;
5. Whether members of the minority group have been denied
(1)
access to the process of slating candidates;
6. Whether voting in the jurisdiction is racially polarized;
7. Whether the minority group suffers from the effects of
invidious discrimination in such areas as education,
economics, employments, health, and politics; and
8. The extent to which members of minority groups have been
elected to office, but with the caveat that the subsection
does not require proportional representation.
The Compromise Amendment is Neither an Intent Test nor a Results Test
In our opinion, the pre-Mobile case law, and thus our compromise amendment
codifying this case law, represents neither an "intent" standard nor a
"results" approach. Nowhere in the pre-Mobile case law did the courts
state that a plaintiff must prove that the challenged voting practice
was motivated by an intent to discriminate. But similarly, nowhere did
the courts state that they were applying a "results" test. 1 Rather, the
touchstone of these cases, and of our compromise amendment, is whether
certain key factors have coalesced to deny members of a particular
minority group access to the political process. Neither election
results, nor proof of discriminatory purpose is determinative. Access
is the key.
Politically, we think the compromise will be attractive. The civil rights
groups have repeatedly stated that a return to the pre-Mobile case law is
all they want, and in drafting the amendment, we have made every effort
not to deviate from the case law. Further, the amendment carefully
1 Under the traditional "effects" or "results" test applied, for instance,
under Title VII of the Civil Rights Act of 1964, the focus of inquiry is
whether statistically, the challenged practice has had a disparate impact
on a particular minority group. The pre-Mobile courts consistently empha-
sized that such statistical ¿ sparities, i.e., in the voting context, the
lack of proporational representation, was not determinative, but rather
only one factor, among meny, to be considered.
avoids any possible interpretation that it could require proportional
representation, or that it would impose an "effects" test similar to
that employed under Title VII. The first sentence makes clear, as did
the White and Zimmer opinions, that the issue to be decided is equal
access to the political process, and that this determination is to be
based on an aggregate of factors, not simply election results. Similarly,
the extent to which minorities have been elected to office is listed as
only one factor to be considered, and it is accompanied by an express
disclaimer that the subsection does not mandate proporational repre-
sentation.
SB:pab
is
The
Issue Bulletin
Herîtage Foundation
No. 78
The Heritage Foundation
513 C Street
N.E.
Washington, D.C.
20002
(202) 546-4400
February 23, 1982
THE VOTING RIGHTS ACT File
INTRODUCTION
The Voting Rights Act of 1965 is the most successful civil
rights measure ever enacted by Congress. The Fifteenth Amendment
declares that the right to vote shall not be denied or abridged
by the United States or any state on account of "race, color, or
previous condition of servitude," and it gives Congress the power
to enforce this right "by appropriate legislation." The Voting
Rights Act, without question, was appropriate legislation. Prior
to its adoption, only 6.8 percent of voting-age blacks were
registered to vote in one southern state; thanks to the Act, that
proportion is now almost 70 percent, and in 1980 almost 60 percent
of them actually voted.
The denial of the right to vote is a fact of profound signifi-
cance. According to the Declaration of Independence, government
derives its just powers from the consent of the governed, and the
governed give their consent in order to secure the natural rights
with which all men are equally endowed. In other words, just or
legitimate government arises out of, or depends upon, the consent
of those who subject themselves to its laws. "We, the people of
the United States" gave our consent when, in 1787-88, we ratified
the Constitution; except in a few isolated cases, however, black
Americans were not given the opportunity to vote for or against
the Constitution. In flat violation of "the laws of nature, and
of Nature's God, they were governed without their consent.
Consequently, they had no opportunity to exercise their political
right to be part of the constitutional majorities that wrote the
laws of the United States. And from the denial of that right
came the denial of the various civil rights that other Americans
enjoyed. The point to be stressed is that voting is the principal
security for civil rights, because voting ensures that one's
interests must be weighed by those who make the laws.
Note: Nothing written here is to be construed as necessarily reflecting the views of The Heritage Foundation or as an
attempt to aid or hinder the passage of any bill before Congress.
2
In order to rectify the wrongs done in the beginning, the
Fourteenth Amendment bestowed citizenship on black Americans,
making them part of "the people of the United States, and the
Fifteenth Amendment sought to guarantee their right to act as
citizens; and the Voting Rights Act succeeded in making the
exercise of that right a reality for most, but, unfortunately,
not yet all of our fellow citizens. There continue to be juris-
dictions where the right to vote is being denied, which is why
Congress should extend the Voting Rights Act. But the bill that
passed the House by the overwhelming margin of 365 votes, and is
now before the Senate, is much more than an extension of the 1965
Act. It would authorize a further expansion of the already
extravagant powers of the federal judiciary (whose members, we
need sometimes to remind ourselves, are dependent on nobody's
suffrage); it would be unconstitutional insofar as the powers it
bestows on the courts are not among those given to the federal
government; and, enforced as we have every reason to believe it
will be enforced, it would be destructive of the principle of
representative government embodied in the constitutional structure.
The objectionable part of this bill is the amended section
2. In its original form, this section was a mere declaration or
statutory restatement of the Fifteenth Amendment. In its amended
form, the words to deny or abridge the right to vote have been
deleted; in their place have been put the words in a manner which
results in a denial or abridgement of the right to vote. This
new language will authorize suits against states, counties, and
municipalities alleging not that they deny the right to vote but,
rather, that the way they apportion seats in a legislature, the
way they organize their governing units, the way they count
votes, and even the way they define themselves, has the effect of
abridging the voting power of groups of voters. Moreover, since,
as a restatement of the Fifteenth Amendment, section 2 applies
nationally, this new language will affect not merely those juris-
dictions with a history of denying minorities their right to
vote; it will affect the electoral laws, practices, and arrange-
ments of every political subdivision in the country. If this
bill is enacted, all fifty states will be deprived of the author-
ity to decide, for themselves, how to organize themselves.
When, in 1965, this authority was taken from the southern
states -- mostly southern states -- and handed over to the Depart-
ment of Justice and the federal courts, it was understood to be a
"Draconian" measure, necessitated only by the discriminatory
behavior of those states; and the law enacted to remedy this was
understood to be a temporary measure. The offending states and
local jurisdictions could "bail out" by demonstrating that they
had ceased their discriminatory practices. But there can be no
"bail out" from the coverage of section 2. So long as section 2
is in force, the federal judiciary will be authorized to rewrite
every state law and every local ordinance affecting the results
of every election. And in every state. It will be authorized to
do in Boston, Baltimore, and Butte, what the Federal District
Court for the Southern District of Alabama did in City of Mobile V.
Bolden (100 S.Ct. 1490 [1980]).
3
The issue in this case was not whether Mobile or Alabama
deprived black citizens of their right to vote; it was whether
the practice of electing City Commissioners in at-large elections
"diluted" the voting strength of black voters. The District
Court found "dilution" in the fact that, although Negroes comprised
approximately one-third of the city's population, "no Negro had
[ever] been elected to the Mobile City Commission." Then, in an
exercise of the kind of power we have come to expect from our
federal courts, it issued an order disestablishing the commission
form of government and the electoral system and decreeing that
they be replaced by a mayor-council system with council members
to be elected from single-member districts. On appeal, the Court
of Appeals affirmed, but a sharply divided Supreme Court reversed.
The amended section 2 is intended to reverse the Supreme Court, a
fact that the House Report on the bill makes no attempt to conceal.
City of Mobile was not a Voting Rights Act case; since its
governing and electoral laws had been in effect since 1911, the
city was not required to pre-clear them with the Justice Depart-
ment. The case was decided under the Fourteenth and Fifteenth
Amendments, and, as the Supreme Court read these Amendments, the
plaintiffs had to show discriminatory intent. In a Voting Rights
Act case, the state, county, or city bears the burden of showing
that its electoral laws, practices, and arrangements do not have
a discriminatory effect. According to Voting Rights law, a
discriminatory effect is one where the minority group's vote is
"diluted," and a vote is "diluted" when the group is deprived of
the opportunity to elect one of its own. For example, a vote is
"diluted" when the number of blacks in an electoral district is
not sufficient "to ensure the opportunity for the election of a
black representative." (United Jewish Organizations V. Carey, 97
S.Ct. 996, 1008 [1977].) In this case, New York was required to
create districts 65 percent nonwhite (and, in the process, had to
distribute the members of what had been a consolidated Hasidic
Jewish community among other districts).
To reach the required 65 percent goal, New York had to
engage in blatant racial gerrymandering. In fact, in redrawing
its district lines, race was the only criterion employed, just as
it was some 25 years ago when Alabama redrew the boundaries of
the city of Tuskegee and, without removing a single white voter,
managed to exclude all but a tiny fraction of Tuskegee's black
voters from the city (all but four of a total of 400). The
Supreme Court had no difficulty in finding discriminatory intent
in this action and struck it down as a blatant violation of the
Fifteenth Amendment. (Gomillion V. Lightfoot, 364 U.S. 339
[1960].) What Alabama was forbidden to do, New York was required
to do; and if the amended section 2 is adopted, every state will
be required to do.
One of Chief Justice Warren's legacies to American politics
is the aphorism, "Legislators represent people, not trees or
acres," and, that being so, the states were forbidden to apportion
seats in either house of their legislatures on any basis other
4
than population. Now, according to these Voting Rights cases,
legislators must represent not undifferentiated people -- people
defined only as individuals living in districts of approximately
equal size -- but groups of people defined by their race or
language preference, and they can be said to represent them only
if they are of that race or prefer that language.
What sort of electoral system can, in practice, "ensure the
opportunity for the election of a black representative?" There
can be no doubt but that an at-large system has the effect of
"diluting" the black vote -- wherever there is racial bloc voting
and wherever blacks constitute a minority. (Look at the U.S.
Senate.) There is also no doubt but that, without blatant gerry-
mandering, a single-member district system is not likely to
overcome vote dilution. (Look at the U.S. House of Representa-
tives.) (The various states are now trying to reapportion their
election districts -- state and federal -- in the light of the
1980 census; and one shudders to think of how much more difficult
that task will be when, in addition to meeting the equal population
requirement, they are required to reapportion with a view to
ensuring "the election of a black [American Indian, Asian American,
Alaskan Native, or Spanish Origin] representative." The only
system that can meet the new section 2 requirement is proportional
representation.
I am not unmindful of the disclaimer in the amended section
2 -- that disproportionality of result "shall not, in and of
itself, constitute a violation of this section." All that means
is that some factor in addition to disproportionality will have
to be present before it can be said that a group's vote has been
abridged by being "diluted." What factors? They can be found in
the cases already litigated. Despite the disclaimer, the amended
section 2 will require proportional representation of blacks and
the language minority groups -- in all 50 states.
This will almost surely promote racial bloc voting, on the
part of whites as well as nonwhites, and that is not something we
should be trying to do in this country. The principle of such
voting is that a person's interests are defined by his race,
that, for example, a black can be fairly represented only by a
black and not, for example, by Peter Rodino; that white can be
fairly represented only by a white and not, for example, Edward
Brooke or Tom Bradley. If that were true, why bother to hold
elections? Why gerrymander districts, why replace at-large
systems with single-member districts, or plurality voting with
majority, and so on, in order to ensure the proportional represen-
tation of nonwhites? Why does the Constitution require elections?
The answer to this question turns on the Constitution's understand-
ing of representation and representative government.
Representative government does not imply proportional repre-
sentation, or any version of it that is likely to enhance bloc
voting by discrete groups. The Framers of the Constitution
referred to such groups as "factions," and they did their best to
5
minimize their influence. The idea that a legislative assembly
should be a "mirror" or a "reflection" of the people was advanced
assiduously by the opponents of the Constitution, the so-called
Anti-federalists. As one of them said in the New York ratifying
convention, "the idea that naturally suggests itself to our
minds, when we speak of representatives, is, that they should
resemble those they represent." Such an idea may naturally have
suggested itself in 1787-88, as it did earlier, but the Framers
emphatically rejected it. Representation, as they understood it,
was one of the discoveries made by the new and improved "science
of politics, " discoveries that would, for the first time in
history, make free government possible. To them, representation
was a means of refining and enlarging the public views "by passing
them through the medium of a chosen body of citizens." Under a
proper system of representation, "the public voice, pronounced by
representatives of the people, will be more consonant to the
public good than if pronounced by the people themselves, convened
for the purpose.¹
Whereas the Anti-federalists called for small districts and,
therefore, many representatives, the Framers called for (and got)
larger districts and fewer representatives. They did so as a
means of encompassing within each district "a greater variety of
parties and interests, " thus freeing the elected representatives
from an excessive dependence on the unrefined and narrow views
that are likely to be expressed by particular groups of their
constituents.
Prepared at the request of
The Heritage Foundation by
Walter Berns
Walter Berns is a Resident Scholar at the American Enterprise Institute.
The above is drawn from his testimony before the Senate Judiciary Committee,
Subcommittee on the Constitution (January 27, 1982), and from a forthcoming
article, "Voting Rights and Wrongs" in Commentary, March 1982.
THE WHITE HOUSE
WASHINGTON
January 25, 1982
MEMORANDUM FOR ELIZABETH H. DOLE
THRU:
DIANA LOZANO
FROM:
MORTON BLACKWELL
m3
SUBJECT:
PROPOSED I & A ON THE VOTING RIGHTS ACT
The proposed questions and answers for the Attorney General
on the Voting Rights Act which were just received do not
alter my criticism of the proposed testimony.
The proposed answers relating to the "effects" test were
implicit in the testimony.
The discussion of bail-out makes explicit the Administrations's
weakness on this issue.
RC
DL
EHD
TD
Document No.
WHITE HOUSE STAFFING MEMORANDUM
1/25/82
DATE:
ACTION/CONCURRENCE/COMMENT DUE BY:
Q.&A. RE VOTING RIGHTS
SUBJECT:
ACTION FYI
ACTION FYI
VICE PRESIDENT
GERGEN
MEESE
HARPER
BAKER
JAMES
DEAVER
JENKINS
STOCKMAN
MURPHY/GARRETT
ANDERSON
ROLLINS
CANZERI
WILLIAMSON
CLARK
WEIDENBAUM
DARMAN
P
SS
BRADY/SPEAKES
DOLE
ROGERS
DUBERSTEIN
BRADLEY
FIELDING
FULLER
Remarks:
Attached are the Q. & A. we just received from Justice.
Richard G. Darman
Assistant to the President
and
Deputy to the Chief of Staff
(x-2702)
U.S. Department of Justice
Office of Legislative Affairs
Office of the Assistant Attorney General
Washington. D.C. 20530
January 25, 1982
DETERMINED TO BE
PERSONAL & CONF IDENTIAL
ADMINISTRATIVE MARKING
E.O. 12958, as amended, Sect. 3.3(c)
BY NARA RW DATE 6/28/11
MEMORANDUM
TO: Craig L. Fuller
Director of Cabinet Administration
FROM: Robert A. McConne
Assistant At one) General
Enclosed are the Q's and A's that relate to the
Attorney General's Voting Rights Testimony.
Enclosure
cc: Ken Duberstein
Assistant to the President
for Legislative Affairs
Pam Turner
Special Assistant
Office of Legislative Affairs
DRAFT
&
What are the major differences between the Administration
position on extension and the bill to extend the Voting Rights
Act which has passed the House?
A.
The major difference is that we actually support extension of
the existing Voting Rights Act. The House bill in fact makes
major changes in the Act. Our experience has not indicated
the need for these changes.
The most significant change is in $2. The House bill
would substitute an effects test for the intent test which
has been in §2 since the beginning. We support retaining
the intent test for $2. It is critical to an understanding
of the Act to distinguish between $2 and $5 in talking about
the intent/effects issue. Section 2 is a permanent provision,
and no action is necessary to retain its protections. Section
5 applies only to selected jurisdictions and only to election
law changes, while §2 applies nationwide and to existing systems
and practices regardless of when they were established.
Section 5 already contains an effects test, and we support its
retention.
Q.
Why should the law have a different test for $2 than for $5?
Why not have some consistency in the law?
A.
There is no inconsistency whatever in having an intent test
for §2 and an effects test for $5, as is the case with the
exisiting Voting Rights Act. The different sections are addressed
to different problems. It makes sense to have an effects test
for election law changes in certain areas which suffer from a
history of election law discrimination. Section 2 is not so
limited. It applies not only to changes but to existing
systems, and not only to certain areas but nationwide. The
law has worked smoothly with an intent test for §2 and an
effects test for $5. The Supreme Court in the Mobile V. Bolden
decision saw no inconsistency in this, and our experience has
revealed none.
&
The effects test in the South, where you have admitted
there is a need for special protections, only covers
election law changes, not practices or systems in
existence in 1965. Shouldn't a results test be put into
§2 to reach discriminatory practices in the South
which were already in place when the Voting Rights Act was
enacted?
- 2 -
DRAFT
A.
Congress, when it enacted the Voting Rights Act in 1965,
did in fact attack directly the existing practices in the
South which Congress thought operated to deny blacks the
right to vote. Literacy, educational, morality, and other
qualification tests used to prevent blacks from voting
were declared to be illegal. Congress thus carefully
considered existing practices in the South, and directly cured
those which were discriminatory. Congress then enacted an
effects test for election law changes in selected jurisdictions
in the South, and an intent test for election practices nation-
wide. We continue to believe that this is the proper approach.
It has been tried and found effective. It would seem odd
to legislate against existing practices more stringently now,
after there has been so much progress, than Congress did in
1965.
Q. The House Report, however, states that the Mobile V. Bolden
decision was erroneous and that an effects test for $2 will
restore the original understanding disturbed by the Court
ruling. Do you agree?
A.
Not at all. We fully agree with Justice Stewart's opinion in
Mobile V. Bolden. Justice Stewart, carefully examining the
legislative history, correctly concluded that Congress enacted
$2 in order to enforce the guarantee of the Fifteenth Amend-
ment that the right to, vote shall not be denied or abridged
on account of race or color. Indeed, the prohibition in $2
is a paraphrase of the constitutional prohibition. As
Justice Stewart's scholarly opinion demonstrates, the Supreme
Court's decisions have always made clear that proof
of discriminatory purpose was necessary to establish a
violation of the Fifteenth Amendment. Congress therefore
intended when it enacted $2 to include an intent test.
&
Why does the Fifteenth Amendment, and, by your reasoning and
the reasoning of Justice Stewart's opinion in Mobile V. Bolden,
$2, have this unusual intent test?
A.
The intent test is not an unusual exception; it is the general
rule in the civil rights area. For example, the equal protection
clause of the Fourteenth Amendment, the basis for many of the
historic civil rights advances, contains the same intent require-
ment contained in the Fifteenth Amendment and $2 of the Voting
Rights Act.
- 3 -
DRAFT
&
Why is it necessary that $2, a statutory provision, track
the requirements of the Fifteenth Amendment, a constitutional
provision?
A. As Justice Stewart demonstrated in Mobile V. Bolden, that was in
fact the desire of Congress when it enacted $2. The goal of
$2 is to enforce the Fifteenth Amendment guarantee, so it makes
eminent sense to follow the legal grounds for a violation of
the Amendment in the statute. A departure may be called for in
special circumstances where special enforcement problems exist,
as Congress recognized when it legislated an effects test for a
temporary period for selected jurisdictions in $5. A similar
departure of general applicability in $2 would represent a
radical change in the law, severing the statute from its
constitutional moorings, and creating grave uncertainty in
its application.
Q. What is so bad about such uncertainty?
A.
There is the very real danger that elections across the nation,
at every level of government, would be disrupted by litigation
and thrown into court. Results and district boundaries would
be in suspense while courts struggled with the new law. It
would be years before the vital electoral process regained
stability. The existing law has been tested in court and has
proved to be successful. There is no need for unsettling
change.
Q. Why do you object to the effects test for $2 in the House bill?
A. Primarily because our experience in securing the right to vote
through $2 as it exists in the Voting Rights Act has been very
successful, and no basis has been established for any change.
In reviewing the Voting Rights Act last summer in the course
of preparing recommendations to the President, I met personally
with scores of civil rights leaders as well as state officials
in order to obtain their views. The one theme that emerged
from these discussions was clear: the Act has been the most
successful civil rights legislation ever enacted, and it
should be extended unchanged. As the old saying goes, if it
isn't broken, don't fix it.
&
Is there anything substantively wrong with an effects test
for $2?
A.
Legal "tests" are not plucked out of thin air but should
follow logically from the goal of the legislation. I believe
- 4 -
DRAFT
the goal of the Voting Rights Act to be that no one be denied
the right to vote on account of race. If this is in fact the
goal, an intent test, such as in the current Voting Rights Act,
logically follows: a court should look to see if official
action was taken with the purpose of denying voting rights
on account of race. If, on the other hand, the goal of the
Voting Rights Act is that election results somehow mirror the
racial balance in any given jurisdiction, an effects test should
be used. Since we do not believe that it was the goal of the
Voting Rights Act to mandate any type of election results,
certainly not results based on race, we do not think an effects
test makes any sense.
Q.
How would an effects test mandate certain election results?
A.
Based on court decisions under $5 of the Act, which contains an
effects test, any election law or practice which produced results
which did not mirror the population make-up of a community could
be struck down.
a
What does that mean in practical terms?
A.
In essence it would establish a quota system for electoral
politics, a notion we believe is fundamentally inconsistent
with democratic principles. At-large systems of election
and multi-member districts would be particularly vulnerable to
attack, no matter how long such systems have been in effect to
the perfectly legitimate reasons for retaining them. Any re-
districting plans would also be vulnerable unless they produced
electoral results mirroring the population make-up. And I should
emphasize that §2 applies not only to statewide elections but
elections to local boards as well, such as school boards. All
elected bodies, no matter at what level, would be vulnerable if
election results did not mirror the racial or language composition
of the relevant population.
&
How can your fears about the effects test in $2 of the House
bill be correct, when the bill specifically provides that "the
fact that members of a minority group have not been elected in
numbers equal to that group's proportion of the population shall
not, in and of itself, constitute a violation"?
A.
We have studied that clause and do not think it is sufficient
to prevent the problems I have identified. As I read the clause,
it would uphold only those election plans which have been care-
fully tailored to achieve election results which mirror the
population make-up of the community in question. In such circum-
stances, if a particular group in the community fails to take
full advantage of the election opportunity under the system
- 5 -
DRAFT
that is in place -- such as where no members of the group
elect to run for office -- the savings clause of the Act makes
it clear that there is no violation, since the failure to
achieve proportional representation does not "in and of itself"
offend the statute. If, on the other hand, there are any
features in the election system that a court can point to as
contributing in any way to a disproportioned election result --
as would almost invariably be the case -- then the savings
clause is to no avail.
&
It is argued, however, that "intent" is impossible to prove.
This seems to make some sense. Decisionmakers usually don't
state, in front of witnesses, that "I'm doing this to discrimi-
nate against blacks".
A.
If the "intent test" required such direct proof, you might have
a point. But the Supreme Court has made clear that it does not.
Intent in the civil rights area may be proved by circumstantial
and indirect evidence as well as by any available direct evidence.
A "smoking gun" of the sort referred to in your question has
never been required. For example, in the case of Arlington
Heights V. Metro Housing Corporation, 429 U.S. 252 (1977),
Justice Powell, writing for the Court, stated that "determining
whether invidious discriminatory purpose was a motivating factor
demands a sensitive inquiry into such circumstantial and direct
evidence of intent as may be available." He went on to point out
that evidence of impact or effect was "an important starting point"
in the inquiry. Other relevant factors included the historical
background to a decision, the sequence of events leading up to
it, and any departures from normal practice or procedures. An
inquiry into such factors is hardly "impossible."
&
Are there any other differences besides the intent/effects
issue between the House bill and the Administration position?
A. Yes. The House bill extends the special preclearance provisions
in §5 indefinitely, while the bill we support provides for a 10
year extension. Congress' practice has been to provide for
periodic extensions, which permits review to determine if the
extraordinary preclearance requirements -- including submission
of proposed changes to the Attorney General -- continue to be
necessary. We see no reasons to depart from this historic
practice which has worked so well. The extension we support --
10 years -- is longer than any previously adopted by Congress.
&
Doesn't the Administration support a bailout?
A.
We do think Congress should consider a reasonable bailout that
would permit jurisdictions with good records of compliance to
be relieved of the preclearance requirements so long as voting
rights were not endangered in any way. We do not have a
specific formula in mind, but think that the question should
be considered by Congress. We will be happy to work with the
committee in the weeks ahead on this question.
- 6 -
DRAFT
&
What's wrong with the bailout in the House bill?
A.
As I have noted, I do not want to get into the details of the
various bailout proposals beyond stating that the question
should be addressed. There may be some difficulties with
the House bill bailout, since it uses imprecise terms, such
as "constructive efforts," which may result in the question
being tied up in the courts for years. That would not be
good for any election system.