Voting Rights Act Ensures Democracy's Lifeblood

May 3, 2006 by Maya Harris, The Daily Journal

Last year, we celebrated the 40th anniversary of one of the most successful civil rights laws in our nation's history: the Voting Rights Act of 1965. On national news channels across America, we watched original film footage and re-enactments of "Bloody Sunday"- the famous march in Selma, Ala., over the Edmund Pettus Bridge, where peaceful civil rights marchers were assaulted by state troopers for daring to demand equal voting rights. We listened to the broadcast of President Lyndon Johnson's speech to Congress and the nation when he declared his intent to sign this landmark legislation into law: "It is wrong, deadly wrong, to deny any of your fellow Americans the right to vote in this country," he said. "All of us must overcome the crippling legacy of bigotry and injustice. And, we shall overcome."

A portrait of our best selves, we held up the Voting Rights Act as a shining example of this nation's commitment to democratic participation for all Americans.

Yet, as the anniversary came and went, few Americans realized then - or even now - that critical provisions in the Voting Rights Act are set to expire in early 2007 unless Congress and the president act to renew them now.

It's not surprising. The Voting Rights Act has become a symbol of who we are as Americans and what we hold ourselves out to be. We take for granted that it will always be there, like the Constitution and Bill of Rights.

Indeed, it is a law that has enjoyed a long tradition of bipartisan support. While a Democratic president, Lyndon Johnson, signed the act into law, four of his Republican successors - Presidents Nixon, Ford, Reagan and George H. W. Bush - extended the act after bipartisan Congresses passed key portions of the act that were due to expire. Upon approving the 1982 extension, President Reagan held up the right to vote as the "crown-jewel" of American liberties.

Understandably so. The Voting Rights Act not only ended literacy tests, poll taxes and other mechanisms that were used to disenfranchise voters, it has guaranteed millions of minority voters the equal opportunity to participate in elections and have their voices heard. Prior to its enactment, there were fewer than 300 African Americans in public office nationwide, including just three in Congress. Today, there are more than 9,100 black elected officials, including 43 members of Congress - the largest number ever.

The Voting Rights Act has also opened the political process for many of the more than 6,000 Latino public officials who have been elected and appointed nationwide, including over 250 elected at the state or federal level, 21 of whom serve in Congress. And, when the act was strengthened in 1975 to include protections for language minorities, Latino, Asian, Native American and Alaskan Native citizens gained important new tools to ensure fundamental fairness in the voting process.

So, what's there to worry about now?

While both Democrats and Republicans across the nation express support for "reauthorization" of the Voting Rights Act, there is yet to be any consensus on what "reauthorization" means. Will all of the expiring provisions be renewed? Will provisions that have been weakened through recent Supreme Court cases be restored? We don't know. But those are the questions both Congress and the president must answer in the coming weeks as the House and Senate introduce and debate Voting Rights Act reauthorization bills.

While most of the Voting Rights Act is permanent, the following key provisions are due to expire:

Section 5, which requires jurisdictions with a documented history of discriminatory voting practices to obtain approval from federal officials ("preclearance") before they change local election procedures;

Section 203, which guarantees language assistance for citizens with limited English proficiency; and

Sections 6 through 9, which authorize the U.S. Department of Justice to appoint observers to monitor elections and prevent efforts to obstruct minority voters' access to the polls.

Beyond renewing these expiring provisions for another 25 years, Congress and the president should enact language to restore the Voting Rights Act's original intent, which the U.S. Supreme Court has undermined in recent decisions. See, e.g., Georgia v. Ashcroft, 539 U.S. 461 (2003); Reno v. Bossier Parish School Board, 529 U.S. 320 (2000). This includes:

Ensuring that the U.S. Department of Justice, pursuant to Section 5, can block voting changes that have the "purpose" of discriminating against minority voters.

Restoring a clear standard to Section 5 that focuses on protecting minority voters against electoral changes that eliminate their ability to elect representatives who share their values, interests and concerns. By contrast, today's standard permits voting changes that eliminate that ability so long as minority voters still have an opportunity to "influence" who might represent them.

Granting winning parties in voting rights lawsuits recovery of expert witness costs necessary to prove that voting discrimination exists.

Though much progress has been made since 1965, these provisions in the Voting Rights Act continue to be relevant and necessary today. Many Americans face obstacles when voting and their ability to overcome these barriers stems from the authority of the Voting Rights Act.

In 2001, for example, in one Mississippi town where several African-American candidates were poised to win seats in local government, the all-white Board of Aldermen and the mayor simply canceled the election. The U.S. Department of Justice stepped in to enforce the Voting Rights Act and, when the election was finally held in 2003, three African-Americans were elected to the Board of Aldermen and the town elected its first African-American mayor.

In South Dakota, state officials enacted 800 voting regulations and laws over the period of two decades that affected two counties subject to Section 5 preclearance - without submitting the changes for federal review as required by law. Then, in 2002, in another South Dakota county, officials packed nearly all of the county's Native American population into a single voting district to ensure that they could not control more than one seat on the three-member county commission. When the Native American community sued under the Voting Rights Act, the county was forced to admit its discriminatory changes and submit to federal oversight over future voting plans pursuant to Section 5.

Even here in California, four counties are subject to Section 5 preclearance: Kings County, Merced County, Monterey County and Yuba County. As recently as 2002, the U.S. Department of Justice was compelled to object to a proposed change in Monterey County that would switch from electing school trustees by district to an at-large system, concluding that the county could not sustain its burden of showing that the change "has neither a discriminatory purpose nor a discriminatory effect." The change was to be instituted as a result of a referendum by local voters. In reaching its conclusion, Department of Justice noted that the referendum itself "took place under highly charged racially polarized circumstances." Initiative petition materials were circulated that "attacked the credibility of the [Latino] trustees from that district, citing the language skills of one trustee and making unfavorable references to the language preferences of another." The language and tone of the campaign materials raised "the implication that the petition drive and resulting change was motivated, at least in part, by a discriminatory animus," a conclusion the Department of Justice found "further supported by statements made by proponents of the petition during [the department's own] investigation."

In addition, 25 of California's 58 counties provide language assistance pursuant to Section 203. And, in just the past two years, the U.S. Department of Justice has filed six complaints against California cities and counties for violations of Section 203. See United States v. City of Azusa (C.D. Cal. 2005); United States v. City of Paramount (C.D. Cal. 2005); United States v. City of Rosemead (C.D. Cal. 2005); United States v. San Benito County (N.D. Cal. 2004); United States v. San Diego County (S.D. Cal. 2004); United States v. Ventura County (C.D. Cal. 2004). These actions have resulted in consent decrees requiring provision of appropriate access to the ballot for limited English proficient citizens and authorizing the use of federal observers to monitor local elections. If there were any doubt about the importance of these provisions to achieving democratic participation, voter registration among Latinos and Filipinos in San Diego rose by over 20 percent after the Department of Justice stepped in to enforce the language assistance provisions of the Voting Rights Act.

In the coming weeks, we will be called to stand up for our democracy's bedrock principle: Every citizen must have equal access to the ballot box. At a time when America has staked so much of its international reputation on promoting democracy around the world, we must ensure the vitality of democracy here at home. Let's all call on Congress and the president to renew and restore the Voting Rights Act.