Housing and Civil Rights: History and Law

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The Voting Rights Act of 1965

The 1965 Enactment

By 1965, concerted efforts to break the grip of voter disfranchisement in certain states had been under way for some time, but had achieved only modest success overall and in some areas had proved almost entirely ineffectual. The murder of voting-rights activists in Philadelphia, Mississippi, gained national attention, along with numerous other acts of violence and terrorism. Finally, the unprovoked attack on March 7, 1965, by state troopers on peaceful marchers crossing the Edmund Pettus Bridge in Selma, Alabama, en route to the state capitol in Montgomery, persuaded President Johnson and Congress to overcome Southern legislators’ resistance to effective voting rights legislation. President Johnson issued a call for a strong voting rights law and hearings began soon thereafter on the bill that would become the Voting Rights Act.

Congress determined that the existing federal anti-discrimination laws were not sufficient to overcome the resistance by state officials to enforcement of the 15th Amendment. The legislative hearings showed that the U.S. Department of Justice’s efforts to eliminate discriminatory election practices by litigation on a case-by-case basis had been unsuccessful in opening up the registration process; as soon as one discriminatory practice or procedure was proven to be unconstitutional and enjoined, a new one would be substituted in its place and litigation would have to commence anew.

President Johnson signed the resulting legislation into law on August 6, 1965. Section 2 of the Act, which closely followed the language of the 15th amendment, applied a nationwide prohibition against the denial or abridgment of the right to vote on the literacy tests on a nationwide basis. Among its other provisions, the Act contained special enforcement provisions targeted at those areas of the country where Congress believed the potential for discrimination to be the greatest. Under Section 5, jurisdictions covered by these special provisions could not implement any change affecting voting until the Attorney General or the United States District Court for the District of Columbia determined that the change did not have a discriminatory purpose and would not have a discriminatory effect. In addition, the Attorney General could designate a county covered by these special provisions for the appointment of a federal examiner to review the qualifications of persons who wanted to register to vote. Further, in those counties where a federal examiner was serving, the Attorney General could request that federal observers monitor activities within the county’s polling place.

The Voting Rights Act had not included a provision prohibiting poll taxes, but had directed the Attorney General to challenge its use. In Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966), the Supreme Court held Virginia’s poll tax to be unconstitutional under the 14th Amendment. Between 1965 and 1969 the Supreme Court also issued several key decisions upholding the constitutionality of Section 5 and affirming the broad range of voting practices that required Section 5 review. As the Supreme Court put it in its 1966 decision upholding the constitutionality of the Act:

Congress had found that case-by-case litigation was inadequate to combat wide-spread and persistent discrimination in voting, because of the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered in these lawsuits. After enduring nearly a century of systematic resistance to the Fifteenth Amendment, Congress might well decide to shift the advantage of time and inertia from the perpetrators of the evil to its victims. South Carolina v. Katzenbach, 383 U.S. 301, 327-28 (1966).

The 1970 and 1975 Amendments

Congress extended Section 5 for five years in 1970 and for seven years in 1975. With these extensions Congress validated the Supreme Court’s broad interpretation of the scope of Section 5. During the hearings on these extensions Congress heard extensive testimony concerning the ways in which voting electorates were manipulated through gerrymandering, annexations, adoption of at-large elections, and other structural changes to prevent newly-registered black voters from effectively using the ballot. Congress also heard extensive testimony about voting discrimination that had been suffered by Hispanic, Asian and Native American citizens, and the 1975 amendments added protections from voting discrimination for language minority citizens.

In 1973, the Supreme Court held certain legislative multi-member districts unconstitutional under the 14th Amendment on the ground that they systematically diluted the voting strength of minority citizens in Bexar County, Texas. This decision in White v. Regester, 412 U.S. 755 (1973), strongly shaped litigation through the 1970s against at-large systems and gerrymandered redistricting plans. In Mobile v. Bolden, 446 U.S. 55 (1980), however, the Supreme Court required that any constitutional claim of minority vote dilution must include proof of a racially discriminatory purpose, a requirement that was widely seen as making such claims far more difficult to prove.

The 1982 Amendments

Congress renewed in 1982 the special provisions of the Act, triggered by coverage under Section 4 for twenty-five years. Congress also adopted a new standard, which went into effect in 1985, providing how jurisdictions could terminate (or “bail out” from) coverage under the provisions of Section 4. Furthermore, after extensive hearings, Congress amended Section 2 to provide that a plaintiff could establish a violation of the Section without having to prove discriminatory purpose.

Civil Rights and Voting: History and Law

The Voting Rights Act of 1965 prohibits discrimination in voting practices or procedures because of race and color. In 1957 and 1960, Congress had enacted voting rights laws that took small steps toward increasing minority voting participation for all Americans. The 1965 Act, however, made huge strides towards making voting rights a reality. The Act prohibited literacy tests and poll taxes which had been used to prevent blacks from voting. In 1975, Congress recognized the need to protect citizens who did not read or speak English well enough to participate in the political process and expanded the protections of the Voting Rights Act to them.

In 1963, civil rights activists began an effort to register black voters in Dallas County, Alabama. During 1963 and 1964, although they brought potential voters by the hundreds to the registrar’s office in the courthouse in Selma, they were unable to get them registered to vote. In January and February 1965, protests were held in Selma to bring attention to this violation of rights. The protests were met by violence by Sheriff James Clark and his deputies. On February 17, a small civil rights march ended in the shooting of Jimmy Lee Jackson who died from his wounds several days later. The civil rights activists decided to hold a memorial march from Selma to the state capitol in Montgomery on March. 7.

Approximately 600 marchers started out on the march that Sunday morning. When the marchers crossed the Edmund Pettus bridge on the outskirts of Selma, they were met by about 200 state troopers, and Sheriff Clark and his deputies mounted on horseback, all armed with tear gas, night sticks and bull whips. The marchers were ordered to turn back. When they did not, they were attacked by the law enforcement officers. The air filled with tear gas and marchers were beaten, whipped and trampled by the horses. Finally, they turned around and returned to Selma. 17 marchers were hospitalized.

Dr. King and his supporters filed a federal lawsuit requesting to be permitted to proceed with the march. On March 21, the march began again, with federal troops protecting the marchers, and proceeded to Montgomery. In Montgomery, a rally was held on the steps of the state capitol. However, within hours of the end of the march, 4 Ku Klux Klan members shot and killed Viola Liuzzo, a white 39-year-old civil rights volunteer from Detroit, Michigan, who had come to support the Alabama African-Americans. President Lyndon Johnson said, “Mrs. Liuzzo went to Alabama to serve the struggle for justice. She was murdered by the enemies of justice who for decades have used the rope and the gun and the tar and the feather to terrorize their neighbors.” In August, 1965, Congress passed the Voting Rights Act.

According to a report of the Bureau of the Census from 1982, in 1960 there were 22,000 African-Americans registered to vote in Mississippi, but in 1966 the number had risen to 175,000. Alabama went from 66,000 African-American registered voters in 1960 to 250,000 in 1966. South Carolina’s African-American registered voters went from 58,000 to 191,000 in the same time period.

Introduction to Federal Voting Rights Laws

The Voting Rights Act, adopted initially in 1965 and extended in 1970, 1975, and 1982, is generally considered the most successful piece of civil rights legislation ever adopted by the United States Congress. The Act codifies and effectuates the 15th Amendment’s permanent guarantee that, throughout the nation, no person shall be denied the right to vote on account of race or color. In addition, the Act contains several special provisions that impose even more stringent requirements in certain jurisdictions throughout the country.

Adopted at a time when African Americans were substantially disfranchised in many Southern states, the Act employed measures to restore the right to vote that intruded in matters previously reserved to the individual states. Section 4 ended the use of literacy requirements for voting in six Southern states (Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia) and in many counties of North Carolina, where voter registration or turnout in the 1964 presidential election was less than 50 percent of the voting-age population. Under the terms of Section 5 of the Act, no voting changes were legally enforceable in these jurisdictions until approved either by a three-judge court in the District of Columbia or by the Attorney General of the United States. Other sections authorized the Attorney General to appoint federal voting examiners who could be sent into covered jurisdictions to ensure that legally qualified persons were free to register for federal, state, and local elections, or to assign federal observers to oversee the conduct of elections.

Congress determined that such a far-reaching statute only in response to compelling evidence of continuing interference with attempts by African American citizens to exercise their right to vote. As the Supreme Court put it in its 1966 decision upholding the constitutionality of the Act:

Congress had found that case-by-case litigation was inadequate to combat wide-spread and persistent discrimination in voting, because of the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered in these lawsuits. After enduring nearly a century of systematic resistance to the Fifteenth Amendment, Congress might well decide to shift the advantage of time and inertia from the perpetrators of the evil to its victims. South Carolina v. Katzenbach, 383 U.S. 301, 327-28 (1966).

At the time the Act was first adopted, only one-third of all African Americans of voting age were on the registration rolls in the specially covered states, while two-thirds of eligible whites were registered. Now black voter registration rates are approaching parity with that of whites in many areas, and Hispanic voters in jurisdictions added to the list of those specially covered by the Act in 1975 are not far behind. Enforcement of the Act has also increased the opportunity of black and Latino voters to elect representatives of their choice by providing a vehicle for challenging discriminatory election methods such as at-large elections, racially gerrymandered districting plans, or runoff requirements that may dilute minority voting strength. Virtually excluded from all public offices in the South in 1965, black and Hispanic voters are now substantially represented in the state legislatures and local governing bodies throughout the region.

Voting Rights and Discrimination FAQ

What federal law protects me from discrimination in voting?

The Voting Rights Act of 1965 protects every American against racial discrimination in voting. This law also protects the voting rights of many people who have limited English skills. It stands for the principle that everyone’s vote is equal, and that neither race nor language should shut any of us out of the political process. You can find the Voting Rights Act in the United States Code at 42 U.S.C. 1973 to 1973aa-6.

Where did the Voting Rights Act come from?

Congress passed the Voting Rights Act in 1965, at the height of the civil rights movement in the South, a movement committed to securing equal voting rights for African Americans. The action came immediately after one of the most important events of that movement, a clash between black civil rights marchers and white police in Selma, Alabama. The marchers were starting a 50-mile walk to the state capital, Montgomery, to demand equal rights in voting, when police used violence to disperse them. What happened that day in Selma shocked the nation, and led President Johnson to call for immediate passage of a strong federal voting rights law.

What does the Voting Rights Act do?

The Voting Rights Act bans all kinds of racial discrimination in voting. For years, many states had laws on their books that served only to prevent minority citizens from voting. Some of these laws required people to take a reading test or interpret some passage out of the Constitution in order to vote, or required people registering to vote to bring someone already registered who would vouch for their “good character.” The Voting Rights Act made these and other discriminatory practices illegal, and gave private citizens the right to sue in federal court to stop them. In recent times, courts have applied the Act to end race discrimination in the method of electing state and local legislative bodies and in the choosing of poll officials.

Will the Voting Rights Act expire?

No. The Voting Rights Act is a permanent federal law. Moreover, the equal right to vote regardless of race or color is protected by the Fifteenth Amendment to the U.S. Constitution, which has been part of our law since the end of the Civil War. And in case after case, our courts have held that the right to vote is fundamental. Voting rights will not expire.

However, some sections of the Voting Rights Act need to be renewed to remain in effect. When Congress amended and strengthened the Voting Rights Act in 1982, it extended for 25 more years–until 2007–the preclearance requirement of Section 5, the authority to use federal examiners and observers, and some of the statute’s language minority requirements. So, for those sections to extend past 2007, Congress will have to take action. But even if these special provisions are not renewed, the rest of the Voting Rights Act will continue to prohibit discrimination in voting.

What is Section 5 of the Voting Rights Act?

Section 5 is a special provision of the statute (42 U.S.C. 1973c) that requires state and local governments in certain parts of the country to get federal approval (known as”preclearance”) before implementing any changes they want to make in their voting procedures: anything from moving a polling place to changing district lines in the county.

Under Section 5, a covered state, county or local government entity must demonstrate to federal authorities that the voting change in question (1) does not have a racially discriminatory purpose; and (2) will not make minority voters worse off than they were prior to the change (i.e. the change will not be “retrogressive”).

Section 5 applies to all or parts of the following states:

  • Alabama
  • Alaska
  • Arizona
  • California
  • Florida
  • Georgia
  • Louisiana
  • Michigan
  • Mississippi
  • New Hampshire
  • New York
  • North Carolina
  • South Carolina
  • South Dakota
  • Texas
  • Virginia

What kinds of racial discrimination in voting are there, and what does the Voting Rights Act do about them?

The Voting Rights Act is not limited to discrimination that literally excludes minority voters from the polls. Section 2 of the Act (42 U.S.C. 1973) makes it illegal for any state or local government to use election processes that are not equally open to minority voters, or that give minority voters less opportunity than other voters to participate in the political process and elect representatives of their choice to public office. In particular, Section 2 makes it illegal for state and local governments to “dilute” the votes of racial minority groups, that is, to have an election system that makes minority voters’ votes less effective than those of other voters. One of many forms of minority vote dilution is the drawing of district lines that divide minority communities and keep them from putting enough votes together to elect representatives of their choice to public office. Depending on the circumstances, dilution can also result from at-large voting for governmental bodies. When coupled with a long-standing pattern of racial discrimination in the community, these and other election schemes can deny minority voters a fair chance to elect their preferred candidates.

To show vote dilution in these situations, there must be a geographically concentrated minority population and voting that is polarized by race, that is, a pattern in which minority voters and white voters tend to vote differently as groups. It must also be shown that white voters, by voting as a bloc against minority-choice candidates, usually beat those candidates even if minority voters are unified or cohesive at the polls.

Anyone aggrieved by minority vote dilution can bring a federal lawsuit to stop it. If the court decides that the effect of an election system, in combination with all the local circumstances, is to make minority votes less effective than white votes, it can order a change in the election system. For example, courts have ordered states and localities to adopt districting plans to replace at-large voting, or to redraw their election district lines in a way that gives minority voters the same opportunity as other voters to elect representatives of their choice.

Is it prohibited to draw majority-minority districts?

No. Over 30 years ago the Supreme Court held that jurisdictions are free to draw majority-minority election districts that follow traditional, non-racial districting considerations, such as geographic compactness and keeping communities of interest together. Later Supreme Court decisions have held that drawing majority-minority districts may be required to ensure compliance with the Voting Rights Act.

While it remains legally permissible for jurisdictions to take race into account when drawing election districts, the Supreme Court has held that the Constitution requires a strong justification if racial considerations predominate over traditional districting principles. One such justification may be the need to remedy a violation of Section 2 of the Voting Rights Act. While such a remedy may include election district boundaries that compromise traditional districting principles, such districts must be drawn where the Section 2 violation occurs and must not compromise traditional principles more than is necessary to remedy the violation.

What other voting rights laws exist?

The National Voter Registration Act of 1993 (often referred to as the “motor voter” law) requires states to make voter registration opportunities available when people apply for or receive services at a variety of government agencies, from driver’s license offices to social services agencies and public benefits offices. The law says states must not take voters off the rolls merely because they have not voted, and it requires states to keep their voter rolls up to date by removing the names of voters who have died or moved away. It may be found at 42 U.S.C. 1973gg to 1973gg-10.

The Uniformed and Overseas Citizens Absentee Voting Act of 1986 (42 U.S.C. 1973ff to 1973ff-6) requires states to make sure that members of our armed forces who are stationed away from home, and citizens who are living overseas, can register and vote absentee in federal elections.

The Voting Accessibility for the Elderly and Handicapped Act of 1984 (42 U.S.C. 1973ee to 1973ee-6) requires polling places across the United States to be physically accessible to people with disabilities.

Does the Voting Rights Act protect language minorities?

Yes. The Voting Rights Act makes it illegal to discriminate in voting based on someone’s membership in a language minority group. The idea behind the Voting Rights Act’s minority language provisions is to remove language as a barrier to political participation, and to prevent voting discrimination against people who speak minority languages. The Justice Department enforces these protections by bringing lawsuits in federal court, by sending federal observers to monitor elections, and by working with local jurisdictions to improve their minority language election procedures.

Many jurisdictions with people of Hispanic, Native American, and Alaskan Native heritage are covered by Section 5 of the Act.

The Voting Rights Act further protects minority language group members by requiring particular jurisdictions to print ballots and other election materials in the minority language as well as in English, and to have oral translation help available at the polls where the need exists. The formulas for determining which jurisdictions must do this are based on the share of the local population in need. The Act requires bilingual election procedures in various states and counties for voters who speak Spanish, Chinese, Filipino, Japanese, Vietnamese, and more than a dozen Native American and Alaskan Native languages.