South Carolina v. KatzenbachVoting Rights Act of 1965Danny BerliantChris BaileySondra FurcajgWarren Linam-Church

The Historical Tension Between Disenfranchisement and the

Right to Vote

- Reconstruction and Enfranchisement- Official Disenfranchisement- Progressive Re-Enfranchisement

Reconstruction and Enfranchisement

•XVth Amendment•1870 Enforcement Act•1870-1873: 1,271 criminal prosecutions in

the South under the Enforcement Act

1876 US Supreme Courtdecisions•US v. Cruikshank: private interference•US v. Reese: official interference•A nullification of the Enforcement Act

effects?

Power of Congress over federal elections•US Supreme Court 1884, Ex Parte

Yarbrough•Assertion of congress’ power

▫election of federal officers ▫protect citizen’s’ right to vote in federal

elections•Power of Congress includes protection

against private conduct•Powerful tool given to Federal

government for protecting voting rights

Post-Reconstruction

•Domination of south by democratic party•Withdrawal of federal government from

the protection of voting rights•Black registered voters kept from voting:

violence, fraud, corruption, Jim Crow laws•Black votes diluted: gerrymandering and

malapportionment•Voting process made more difficult: eight

box law

Gerrymandering

Official disenfranchisement

•1890 Mississippi Constitutional Convention: “Mississippi solution”

•Mississippi Supreme Court 1896, Ratcliff v. Beale: “By reason of its previous condition of servitude (…), this race had acquired and accentuated certain peculiarities of habit, temperament, and of character (…) – a patient docile people, but careless, (…), without forethought (…)”

Mississippi solution

•Literacy and comprehension test•Poll taxes•Strict registration deadline•Grandfather clause•Property qualifications•Good character requirements•White primaries•Black voting rate dropped: from 50% to

5% in Mississippi

Mississippi Solution (Continued)•Congress: most Reconstruction Statutes

repealed in 1894: “Let every trace of Reconstruction measures be wiped from the statute books (…)”

•US Supreme Court Williams v. Mississippi 1898: Federal Constitution allows states to take advantage of the “alleged characteristics of the negro race”

Progressive Re-Enfranchisement•World War II, New Deal•Increase in black discontent and pressure•Change in composition of the US Supreme

Court•1947 Report by President’s Civil Rights

Commission : “To secure these rights”

Change in US Supreme Court decisions•1941, US v. Classic: primaries are an

integral part of election process + extension Congress’ power over federal elections

•1944, Smith v. Allwright: outlaws white primaries

•1949, Davis v. Schnell: outlaws state’s new “understand and explain test”

Congress: 1st Civil Rights law since 1875•1957 Civil Rights Act: Attorney General

can sue anyone who violates person’s voting rights

•1960 Civil Rights Act: creates federal voting referees appointed by local federal district courts

•1964 Civil Rights Act: alters state qualifications for voters in federal elections

Katzenbach’s Revolution: Expansion of Federal Power to

Expand the Franchise

- South Carolina v. Katzenbach- State Coverage Formula- Suspensions of Tests- Federal Review of New Voting Eligibility Requirements- Listing of Qualified Applicants by Appointed Federal Examiner

Steady Progression of Change• Voting Rights Act of 1957

▫Gave Attorney General the right to issue injunctions against public and private entities on racial grounds

• Voting Rights Act of 1960▫Allowed joinder of states as parties in lawsuits▫Voting records had to be provided to opposing

council▫Courts given ability to register voters in areas of

historic discrimination• Voting Rights Act of 1964

▫Outlawed particular tactics of discrimination▫Expedited hearing of voting cases before special

three judge panels

Voting Rights Act of 1965• Consisted of four main

sections:▫ Coverage Formula▫ Suspension of all voting

eligibility tests▫ Federal review of new

rules▫ Federal examiners

Coverage Formula

•The VRA created a two step test for determining whether a State was subject to the new voting provisions:▫AG determination that the State maintained

a “test or device” for voter eligibility▫Director of the Census determined that less

than 50% of the State’s voting age residents were registered or voted in the previous election

Suspension of Eligibility Tests• Any State that fell under

the coverage formula was temporarily barred from enforcing eligibility tests (literacy requirements, property ownership, etc.)

Federal Review of New Rules

•All States falling under the coverage area must submit any news rules to the District Court for the District of Columbia for approval.

•(Note: Only issue that was not unanimously approved by the U.S. Supreme Court)

Federal Voting Examiners• AG appointed federal

examiners to oversee voter registration in areas that:– Have received at least 20

written complaints– Examiners are necessary to

guarantee the protections of the 15th Amendment.

• Federal examiners test voting qualifications of applicants for suspect States.

• Examiners submit list of eligible voters to State authorities who must then add those names to their voting register.

South Carolina v. Katzenbach (1966)

• South Carolina was the first state to fall under the VRA coverage formula.

• U.S. Supreme Court granted original jurisdiction due to the social unrest across the nation at that time.

• Katzenbach, a staunch civil rights advocate and the Attorney general, served as a catalyst for both supporters and opponents to civil rights legislation.

South Carolina v. Katzenbach Contd.•Katzenbach himself gave the oral

argument on behalf of the U.S. government.

•U.S. Supreme Court ruled unanimously approving all provisions, except:▫Justice Black: Cases and Controversies

Interview with Katzenbach

•Legislation v. Litigation•Oral Argument in front of USSC•Significance of Voting Rights Act of 1965•Voting Discrimination Today

Modern Face of Voter Discrimination: Right to

Access-Progression of Voting Rights Act- Bush v. Gore- Other Forms of Discrimination- Obama v. McCain-Department of Justice

Voting Rights Act of 1965•Section 5 of Voting Rights Act - Preclearance

▫Extended for 5 years in 1970▫Extended for 7 years in 1975

•Mobile v. Bolden 1980▫Need proof of racially discriminatory purpose

•1982: Congress got rid of new heightened std.▫Only discriminatory impact required▫Extended Section 5 another 20 years

Types of Voting Discrimination Cases•First Generation: Physical intimidation

and blatant disenfranchisement▫Mostly gone by 1980s

•Second Generation: Voter dilution▫Blatant but less violent

•Third Generation: Voter dilution▫Less blatant, better justifications▫Ex:Redistricting of minority districts

Bush v. Gore

•Jesse Jackson rallies do not get publicity•Stories of racial discrimination

▫Picture identification▫Sent on wild goose chase

Bush v. Gore Statistics

•African Americans made up 54% of votes not counted

•Automatic machines rejected 14.4% of African American votes and 1.6% of white votes

•Rejected African American precinct ballots twice the rate as Latino precincts and four times the rate as white precincts

Legal Ways of Exclusion

•Ex-felons not allowed to vote•Voting is held on Tuesday

▫Blue collar voters cannot get off work

Obama v. McCain

•Line waiting time▫68% of white voters waited 10 minutes or

less▫45% of black voters waited 10 minutes or

less▫5% of white voters waited an hour or

longer▫15% of black voters waited an hour or

longer

Obama v. McCain

•Photo ID Requests▫½ of white voters asked for photo

identification▫2/3 of black voters asked for photo

identification •African American Self-Discrimination??

▫African American Poll workers asked 46% of African Americans for ID and only 30% of whites

DOJ Enforcement

•Blocked racial discriminatory procedures in Georgia this past summer

•Federal observers▫Make sure voting procedures are being

done properly•DOJ educates states and localities on how

to conduct procedures without discriminating

Contemporary Face of Voter Discrimination Litigation

-Northwest Austin Municipal Utility District- Justice Roberts’ Opinion- Justice Thomas’ Dissent-U.S. v. Euclid City School Board- Lulac of Texas v. Texas Democratic Party- DOJ Attorney Scandal

Northwest Austin Municipal Utility District Number One v. Holder•Plaintiff – Small district that set utility

rates for the northern part of Travis County (Austin)

•The district tried to change how it elects the board that sets the rates

•Because Texas is subject to Section 5 of the VRA, the board had to get preclearance on any change

Northwest Austin Municipal Utility District Number One v. Holder

Northwest Austin Municipal Utility District Number One v. Holder•The District has 2 arguments:

▫That it is not a “political subdivision” as defined by the VRA

▫That Section 5 of the VRA is unconstitutional

Northwest Austin Municipal Utility District Number One v. Holder•Roberts opinion

▫The District is a “political subdivision” as defined by the VRA

▫There is no reason to address the Constitutionality of Section 5 of the VRA

Northwest Austin Municipal Utility District Number One v. Holder•Thomas Dissent

▫Because the 2 different arguments offer 2 different remedies, the Constitutional question must be addressed

▫Section 5 of the VRA is unconstitutional

Northwest Austin Municipal Utility District Number One v. Holder•Thomas dissent

▫15th Amendment: prohibits denying the ballot to anyone based on “race, color, or previous condition of servitude”

▫10th Amendment: the states retain all power not delegated to the federal government

Northwest Austin Municipal Utility District Number One v. Holder•Thomas dissent

▫15th Amendment: prohibits denying the ballot to anyone based on “race, color, or previous condition of servitude”

▫Section 5: any change must be cleared by the DOJ Even if is found to not discriminate based on

“race, color, or previous condition of servitude”

Katzenbach ratified this expansion of the power of the 15th amendment

Northwest Austin Municipal Utility District Number One v. Holder•Thomas dissent

▫Katzenbach decision was justified due to the extraordinary nature of the problem Violence Repeated attempts to circumvent federal

voting laws

Northwest Austin Municipal Utility District Number One v. Holder•Thomas dissent

▫The 2006 VRA was not passed with similar findings by congress

▫Congress acknowledged the primary motivations do not exist anymore

▫Congress justified the 2006 VRA because of secondary concerns of discrimination

Northwest Austin Municipal Utility District Number One v. Holder

Northwest Austin Municipal Utility District Number One v. Holder•Thomas dissent

▫Secondary motivations are not instances of purposeful discrimination

▫Isolated incidents of discrimination are not evidence of systematic discrimination

LULAC v. Texas Democratic Party•In Texas, political parties run the primary

elections•In 1996, the Supreme Court held that

political parties are subject to the VRA if they run elections that are similar in scope to elections that would otherwise be run by states

LULAC v. Texas Democratic Party•In the 2008 primary election, the TDP had

a plan to assign delegates based on the vote for the democratic gubernatorial candidate in the 2006 election

•White Districts received more delegates even though Latino districts voted for the candidate as a higher %▫Similar to the 2000 presidential election

DOJ Attorney Scandal

•The Bush administration pushed some attorneys to pursue cases involving voter fraud▫Some of these cases were to pressure

states to remove voters from the voting rolls

•When attorneys refused, they were fired

DOJ Attorney Scandal

•The administration suggested the attorneys were fired for poor performance

•A congressional investigation revealed that the failure to pursue those cases was the primary motivating factor

•It led to the resignation of Attorney General Alberto Gonzales

DOJ Attorney Scandal

•Issues▫Is the VRA sufficient if the DOJ can be

politicized to this extent?▫Is this a reason to support the preclearance

provision?