Ballots in the Balance: Does the 1965 Voting Rights Act Still Matter? by Richard M. Valelly

Author of The Two Reconstructions: The Struggle for Black Enfranchisement

Forty years ago—in a dramatic response to decades of African American struggle in the courts and the streets and to growing public concern over black disenfranchisement—a large bipartisan majority in Congress framed and passed the 1965 Voting Rights Act. President Lyndon Johnson proudly signed it in a special Capitol Hill ceremony. These officials, much of the public, and key partners such as the Student Nonviolent Coordinating Committee, the NAACP, the Southern Christian Leadership Conference, and the Congress on Racial Equality all intended a restoration of the Reconstruction Amendments, particularly the 14th and 15th Amendments. In that they succeeded. Since 1965 the federal protection afforded by the Voting Rights Act has immeasurably strengthened minority voting and representation. The Voting Rights Act is today widely recognized as perhaps the premier case of a national law that can institute broad and desirable political change.

But will the Voting Rights Act survive its next congressional review? Should it? These questions now animate a growing number of conferences and discussions at law schools and universities around the country. Opponents and supporters of the Voting Rights Act are now meeting and planning for the congressional review. Voting rights issues now flying below the public radar are certain to surface on the national agenda this year or next.

By August 2007 Congress must renew, amend, or drop the Voting Rights Act's temporary enforcement provisions. These measures include (1) federal review of proposed election changes in Southern and some non-Southern states and counties (a process technically known as "Section 5 preclearance"), (2) the federal election observer program, and (3) the requirement—added ten years after Congress first passed the law—that many non-Southern jurisdictions, including Arizona, California, and Texas, provide bilingual balloting materials and assistance.

Some legal experts argue that the most important temporary measure, Section 5 preclearance, cannot survive the upcoming congressional review. They believe that under the doctrine of separation of powers currently advocated by the Supreme Court's majority, Congress cannot enact a prospective prohibition on unconstitutional behavior. Instead, Congress can remedy discrimination or correct systematic public violations of civil rights only after discriminatory violations appear. Congress cannot, in other words, enact remedies for problems that do not yet exist or no longer exist. By implication, Section 5 preclearance would be allowed to die a decent death, with thanks for the forty years of work that made America a much more democratic country.

But is that work really finished? Once the deterrent effects of Section 5 preclearance vanish, will there be an erosion of hard-won African American and Latino voting rights? As my new book, The Two Reconstructions: The Struggle for Black Enfranchisement, shows, as a country we have been here before. The First Reconstruction, after the Civil War, was successful far longer than we think, but collapsed altogether in the 1890s, as black disenfranchisement spread throughout the South. A regression of that magnitude is unthinkable today. But we are hearing some echoes of it, ironically outside the Deep South. Given our history, we Americans must deliberate together about what we can and must do to avoid any backsliding on our fundamental freedoms.

During the 2000 and 2004 presidential elections black voters experienced— according to a stream of anecdotal evidence and several statistically sound studies—a wide range of difficulties in voting in the key battleground states of Florida and Ohio. These included unconscionably long voting lines because too few machines were provided, high levels of ballot spoilage, and challenges by private citizens and elections officials. Since 2000 there has been mounting anecdotal evidence of so-called ballot security programs targeted by the Republican Party on minority neighborhoods and localities—a great irony, given the party's proud history in securing black emancipation and voting rights.

Significantly, such attacks on black voting rights have surfaced in jurisdictions that are not subject to Section 5 preclearance. To put it another way, with the possible recent exception of still unproven election-day ballot security programs in the 2003 Mississippi gubernatorial election, election-day shenanigans have all but disappeared in areas subject to Section 5 preclearance—yet they have sprouted up in uncovered jurisdictions when election contests have been uncertain and close.

Once Section 5's deterrent and compliance-inducing effects are removed in places that have been covered since 1965, will the new ballot security programs migrate from uncovered jurisdictions to previously covered jurisdictions? In 1990 Senator Jesse Helms launched a massive ballot security program, mailing tens of thousands of postcards to black North Carolinians falsely warning them of penalties for fraudulent voting. He did this in a very tight campaign in which he trailed a dynamic black Democrat, former Charlotte mayor Harvey Gantt. After the fact Helms was forced by the Department of Justice to stipulate that his program was impermissible under the Voting Rights Act. Once the Voting Rights Act's temporary enforcement provisions go, will the Justice Department have the resources to effectively police a rash of new ballot security programs in tight elections in the previously covered jurisdictions?

In addition, consider minority representation rights, which are secured in principle by a permanent feature of the Voting Rights Act: Section 2. Congress added Section 2 in 1982 after thirteen years of massive resistance by Southern governments to the prospect of black officeholders. Such resistance, in fact, continues in some jurisdictions today. Both before and after the 1982 amendment, Section 5 preclearance played a leading role in forcing Southern governments to drop election rules that blocked black office seekers. The obvious question is: if Section 5 preclearance expires, will we see a return of such discriminatory election rules in the South? Or in Arizona, California, New Mexico, Texas, and parts of New York, where they were once used to deny electoral victory to aspiring Latino politicians?

No one knows the answers to these questions. But not knowing the answers hardly lessens their importance. The evidence of selective disenfranchisement of minorities in America is plentiful—and growing. Such selective disenfranchisement is rare in jurisdictions that are now covered by the Voting Rights Act. But after 2007 that may change. Congress must soberly weigh that possibility. Indeed, not only must Congress renew the Voting Rights Act's temporary provisions; it must also find ways to take its cue from the Voting Rights Act and curb the selective disenfranchisement that increasingly plagues too many elections all over this country.

Ballots in the Balance

Does the 1965 Voting Rights Act Still Matter?

by Richard M. Valelly

Author of The Two Reconstructions: The Struggle for Black Enfranchisement

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