http://www.usdoj.gov/crt/voting/intro/intro.htm

Last Revised - February 11, 2000

United States Department of Justice
Civil Rights Division
Voting Section

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 on "covered" jurisdictions in certain areas of 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 "covered" 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 adopted 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 inordinant 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.

http://www.usdoj.gov/crt/voting/intro/intro_a.htm

Before the Voting Rights Act

Reconstruction and the Civil War Amendments

Before the Civil War the United States Constitution did not provide specific protections for voting. Qualifications for voting were matters which neither the Constitution nor federal laws governed. At that time, although a few northern states permitted a small number of free black men to register and vote, slavery and restrictive state laws and practices led the franchise to be exercised almost exclusively by white males.

Shortly after the end of the Civil War Congress enacted the Military Reconstruction Act of 1867, which allowed former Confederate States to be readmitted to the Union if they adopted new state constitutions that permitted universal male suffrage. The 14th Amendment, which conferred citizenship to all persons born or naturalized in the United States, was ratified in 1868.

In 1870 the 15th Amendment was ratified, which provided specifically that the right to vote shall not be denied or abridged on the basis of race, color or previous condition of servitude. This superseded state laws that had directly prohibited black voting. Congress then enacted the Enforcement Act of 1870, which contained criminal penalties for interference with the right to vote, and the Force Act of 1871, which provided for federal election oversight.

As a result, in the former Confederate States, where new black citizens in some cases comprised outright or near majorities of the eligible voting population, hundreds of thousands -- perhaps one million -- recently-freed slaves registered to vote. Black candidates began for the first time to be elected to state, local and federal offices and to play a meaningful role in their governments.

Disfranchisement

The extension of the franchise to black citizens was strongly resisted. Among others, the Ku Klux Klan, the Knights of the White Camellia, and other terrorist organizations attempted to prevent the 15th Amendment from being enforced by violence and intimidation. Two decisions in 1876 by the Supreme Court narrowed the scope of enforcement under the Enforcement Act and the Force Act, and, together with the end of Reconstruction marked by the removal of federal troops after the Hayes-Tilden Compromise of 1877, resulted in a climate in which violence could be used to depress black voter turnout and fraud could be used to undo the effect of lawfully cast votes.

Once whites regained control of the state legislatures using these tactics, a process known as "Redemption," they used gerrymandering of election districts to further reduce black voting strength and minimize the number of black elected officials. In the 1890's, these states began to amend their constitutions and to enact a series of laws intended to re- establish and entrench white political supremacy.

Such disfranchising laws included poll taxes, literacy tests, vouchers of "good character" and disqualification for "crimes of moral turpitude." These laws were "color-blind" on their face, but were designed to exclude black citizens disproportionately by allowing white election officials to apply the procedures selectively. Other laws and practices, such as the "white primary", attempted to evade the 15th Amendment by allowing "private" political parties to conduct elections and establish qualifications for their members.

The net effect of these efforts was the disfranchisement of nearly all black citizens and the removal from office of nearly all black legislators in the former Confederate states by 1910. The process of restoring the rights taken stolen by these tactics would take many decades.

Attacks on Disfranchisement Before the Voting Rights Act

In Guinn v. United States, 238 U.S. 347 (1915), the Supreme Court invalidated under the 15th Amendment voter registration requirements containing "grandfather clauses", which made voter registration in part dependent upon whether the applicant was descended from men enfranchised before enactment of the 15th Amendment. The Supreme Court found the Oklahoma law to have been adopted in order to give whites who might otherwise have been disfranchised by the state's literacy test a way of qualifying to vote that was not available to blacks. The "white primary" was attacked in a series of legal challenges until, in 1944, the Supreme Court held that the Texas "white primary" violated the 15th Amendment. Smith v. Allwright, 321 U.S. 649 (1944). The Southern states experimented with numerous additional restrictions to limit black participation in politics, many of which were struck down by federal courts over the next decade.

Congress passed legislation in 1957, 1960 and 1964 that contained voting-related provisions. The 1957 Act created the Civil Rights Division within the Department of Justice and the Commission on Civil Rights; the Attorney General was given authority to intervene in and institute lawsuits seeking injunctive relief against violations of the 15th Amendment. The 1960 Act permitted federal courts to appoint voting referees to conduct voter registration following a judicial finding of voting discrimination. The 1964 Civil Rights Act also contained several relatively minor voting-related provisions. Although these court decisions and laws made it more difficult, at least in theory, for states to keep all of their black citizens disenfranchised, the strategy of litigation on a case-by-case basis proved to be of very limited success in the jurisdictions were sued and it did not prompt voluntary compliance among jurisdictions that had not been sued. Literacy tests, poll taxes and other formal and informal practices combined to keep black registration rates minimal in Alabama, Louisiana, and Mississippi, and well below white registration rates in the others.

Faced with the prospect that black voter registration could not be suppressed forever, however, some states began to change political boundaries and election structures so as to minimize the impact of black re-enfranchisement. In 1960, the Supreme Court struck down one such effort, in which the state legislature had gerrymandered the city boundaries of Tuskegee, Alabama, so as to remove all but a handful of the city's black registered voters. The Supreme Court ruled that by doing so Alabama had violated the 15th Amendment. Gomillion v. Lightfoot, 364 U.S. 339 (1960).

The "Reapportionment Revolution"

In the early 1960's, the Supreme Court also overcame its reluctance to apply the Constitution to unfair redistricting practices. Prior to 1962, the United States Supreme Court had declined to decide constitutional challenges to legislative apportionment schemes, on the grounds that such "political questions" were not within the federal courts' jurisdiction. In Baker v. Carr, 369 U.S. 186 (1962), however, the Supreme Court recognized that grossly malapportioned state legislative districts could seriously undervalue -- or dilute -- the voting strength of the residents of overpopulated districts while overvaluing the voting strength of residents of underpopulated districts. The Supreme Court found that such malapportionment could be challenged in federal court under the Equal Protection Clause of the 14th Amendment.

In later cases including Reynolds v. Sims, 377 U.S. 533 (1964), and Wesberry v. Sanders, 376 U.S. 1 (1964), the Supreme Court established the one-person, one-vote principle. Because in many states malapportioned legislative districts had resulted in sparsely-populated rural counties having a much greater share of their state's political power than their state's population, correcting this imbalance led to dramatic realignments of political power in several states. In Fortson v. Dorsey, 379 U.S. 433 (1965), the Supreme Court suggested, but did not hold, that certain types of apportionment might unconstitutionally dilute the voting strength of racial minorities.

http://www.usdoj.gov/crt/voting/intro/intro_b.htm

The Voting Rights Act of 1965

The 1965 Enactment

By 1965 concerted efforts to break the grip of state disfranchisement 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 the President 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 efforts by the Department of Justice to have discriminatory election practices eliminated 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.

The resulting legislation, which President Johnson signed into law on August 6, 1965, temporarily suspended literacy tests, and provided for the appointment of federal examiners (with the power to register qualified citizens to vote), in those jurisdiction that were "covered" according to a formula provided in the statute. In addition, under Section 5 of the Act covered jurisdictions were required to obtain "preclearance" for new voting practices and procedures from either the District Court for the District of Columbia or the United States Attorney General. Section 2 of the Act, which closely followed the language of the 15th Amendment, applied a nationwide prohibition of denial or abridgment of the right to vote on account of race or color.

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 for which preclearance was required. 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). See also Allen v. State Board of Elections, 393 U.S. 544 (1969) (recognizing that gerrymandered district boundaries or at-large elections could be used to dilute minority voting strength).

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 preclearance. 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 minority-language 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 1970's 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 decided in 1982 that Section 5 should be renewed 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 special provisions of Section 4. Furthermore, after extensive hearings, Congress decided that Section 2 should be amended to prohibit vote dilution, according to essentially the same objective factors employed in White v. Regester, but without a requirement of proof of discriminatory purpose.

http://www.usdoj.gov/crt/voting/intro/intro_c.htm

The Effect of the Voting Rights Act

Soon after passage of the Voting Rights Act, federal examiners were conducting voter registration, and black voter registration began a sharp increase. The cumulative effect of the Supreme Court's decisions, Congress' enactment of voting rights legislation, and the ongoing efforts of concerned private citizens and the Department of Justice, has been to restore the right to vote guaranteed by the 14th and 15th Amendments. The Voting Rights Act itself has been called the single most effective piece of civil rights legislation ever passed by Congress.

The following table compares black voter registration rates with white voter registration rates in seven Southern States in 1965 and 1988:1/

Voter Registration Rates (1965 vs. 1988)

The following figure traces the number of black Southern legislators during two 32-year time periods -- from 1868 to 1900, and from 1960 to 1992:2/

Number of Black Southern Legislators, 1868-1900 and 1960-1992

• This chart illustrates how the disfranchisement of black voters following reconstruction led to the elimination of black southern legislators by 1900, and how the reenfranchisement of black citizens after 1960 has resulted in significant black representation.

   

A similar pattern is found when one examines elections for local offices as well. Although the legacies of racially polarized voting and discriminatory voting practices have not vanished, the Voting Rights Act has dramatically curtailed their effect.

Notes

1/ Adapted from Bernard Grofman, Lisa Handley and Richrad G. Niemi. 1992. Minority Representation and the Quest for Voting Equality. New York: Cambridge University Press, at 23-24.

2/ Adapted from J. Morgan Kousser. 1999. Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction. Chapel Hill: University of North Carolina Press, at 19.