What went wrong with the Voting Rights Act.

What Went Wrong With the Voting Rights Act 

As every middle-aged reader of the Monthly will recall, the Voting Rights Act of 1965 was swiftly enacted in the wake of the turbulent march on Selma to combat black disenfranchisement in those southern states that had abused literacy tests and other conditions on voting.

The act's success in drawing minorities into electoral activity is unquestionably among the greatest triumphs of modern American politics. Since 1965, black and Hispanic political participation and influence have burgeoned. The number of black elected officials has grown enormously. Black and Hispanic politicians run many of America's largest cities, sit in increasing numbers in Congress and the state legislatures, and occupy influential administrative posts at all levels of government. Hispanics have won gubernatorial races and blacks are poised to do so in some states. Most important, minorities are swing constituencies in many areas still represented by whites; their decisive electroal power has forced segregationist politicians like Strom Thurmond and George Wallace to reverse fervently avowed positions and to court minority political support through patronage, pork, and other concessions. The opposition of virtually all southern Democratic senators to Robert Bork's nomination to the Supreme Court vividly exemplifies their responsiveness to black constitutents.

But few may realize that in the years since 1965, the federal courts and the Department of Justice began to implement the act in ways that by 1982 had radically altered its goals and methods. From a guarantee of racial minorities' 15th Amendment right to cast ballots, the act has been turned into a kind of racial quota system for legislators. Federal bureaucrats have invalidated at-large electoral systems, packing minorities into single member districts so that only members of their group can win.

Congress has approved these changes and steadily enlarged the act's scope. Most recently, in 1982, it made voting rights violations easier to prove and extended the act's "emergency' provisions, originally slated to expire in 1970, until the year 2007. Although these amendments specified that they were not intended to create proportional representation by race, they have been used to advance that very purpose. Instead of insuring equal political opportunities for minorities, the act is now interpreted to prescribe electoral outcomes, enforced by racial allocations of legislative seats.

This evolution of the Voting Rights Act, Abigail Thernstrom writes in this fascinating study*, is "controversial policy that has somehow stirred no controversy.' The long awaited appearance of her book will change all that.

* Whose Vote Counts? Affirmative Action and Minority Voting Rights. Abigail M. Thernstrom. Harvard University Press, $25.

Towards the extreme

The Voting Rights Act was a striking political innovation with immediate, far-reaching effects. Its central provision prohibited any qualification that limited voting rights. But it also adopted three "emergency' provisions that would expire, unless renewed, in five years. One prohibited literacy tests or similiar devices in those jurisdictions where they had been used and where voter registration or turnout in the 1964 presidential election was below 50 percent--southern states. Another authorized the appointment of federal voting examiners in those jurisdictions. The third required local and state governments to obtain Department of Justice "preclearance' of almost all changes in voting rules and procedures.

Thernstrom's story, written with scrupulous balance and obvious sympathy for the cause of racial justice, reveals numerous ironies. The South's long political oppression of blacks ended up empowering them. States' Rights claims trigered a far more intrusive federal intervention than anything since Reconstruction. The Nixon administration's "southern strategy' to lure southern Democratic voters into the GOP played directly into the hands of the civil rights groups; in order to destigmatize a law that was decidedly regional at inception, the act was extended in 1970 to the entire nation.

"The more potent the legislation became,' Thernstrom observes, "the fewer were the objections raised. As the scope of the act was enlarged, the ranks of its opponents thinned.' Congressional hearings in 1975 which turned up little evidence of Hispanic disenfranchisement, were used to expand the act to cover Hispanics and other language minorities. In 1982, the most conservative administration in a half century, allied with a Republican-controlled Senate and a reactionary Judiciary Commitee chairman, Strom Thurmond, stood by while Congress adopted amendments that contradicted every ideological principle this alliance stood for. And the administration's civil rights chief, William Bradford Reynolds, vilified by minority group spokesmen for his passionate opposition to extensive affirmative action, implemented the act in ways that reinforced that very remedy and strengthened his critics.

The most important irony, though, was the transformation of the preclearance provision. Originally, preclearance was intended as a temporary adjunct to the ban on literacy tests and similar devices, enabling the Department of Justice (or the federal court in Washington) to insure that southern states covered by the act could not use new subterfuges to circumvent that ban. Under Republican and Democratic administrations alike, preclearance became the act's central regulatory mechanism. Prodded by civil rights groups and incumbent politicians, the Justice Department extended the provision's scope far beyond voting and registration procedures. Municipal annexations, court-ordered redistrictings, multimember districting, at-large voting or majority vote rather than plurality requirements in elections, and other decisions by elected officials cannot go into effect until they are approved by staff attorneys in the Voting Rights Section of Justice's Civil Rights Division. In this way, bureaucratic lawyers are reshaping politics from Opelika, Alabama to New York City.

Thernstrom reveals, with devastating effect, what happened when vast regulatory power was placed at the service of a great but ill-defined ideal. It is not a pretty picture. The department lawyers, she argues, wore ideological blinders. Using high-minded euphemisms to cover their tracks, they defined political equality as requiring "safe legislative seats corresponding to a minority's share of the population.' To compensate for low minority turnout and registration, the department has defined a "safe seat as one with 65 percent minority voters and with no strong white candidate.' To secure these seats against competition from white candidates, the department has decided that at-large and multimember districting systems must go the way of hoop skirts.

The department's position, Thernstrom maintains, is wrong on two counts. First, it is contrary to the law; the Supreme Court has consistently held that proportional representation is neither the constitutional nor the statutory standard that electoral systems must meet. Second, it is a highly dubious policy. While creating safe seats increases the number of minority office holders, it dissipates minority voter's influence over the process as a whole. Packing minority voters into a few districts that they can safely control relinquishes almost all minority influence in the far larger number of districts now populated almost entirely by whites. Conservative politicians, lacking the moderating influence of a black constituency, feel freer to move toward the political extreme. Single-member districting can breed corrupt, parochial, machine politics as in Chicago and other cities. At the turn of the century, Progressive reformers adopted at-large and multimember systems to force candidates to reach out across ethnic and neighborhood lines, thereby encouraging more public-spirited, integrated politics. Nevertheless, Thernstrom observes, "no amount of argument can persuade the Justice Department that it is legitmate to divide black voters between districts in order to protect a white liberal incumbent who has served that black community well, and who perhaps has seniority on legislative committees that are important to blacks.'

Manhattan Republicans

In its 1980 Bolden decision, the Supreme Court ruled that constitutional challenges to an electoral system (as distinguished from challenges under the Voting Rights Act) could succeed only upon proof that these systems were adopted or implemented with discriminatory intent. Minority challengers thus bore a difficult burden of proof. Many electoral systems had been adopted decades earlier and evidence of the legislators' original purpose was nearly impossible to assemble.

When the Voting Rights Act came up for renewal in 1982, civil rights groups, skillfully mobilized by the Leadership Conference on Civil Rights, argued that the crucial question was not intent but whether the electoral structure resulted in the dilution of minority votes. Earlier court decisions had based findings of vote dilution upon a combination of factors other than intent, including a history of racial-bloc voting, unresponsiveness to minority concerns, at-large or multimember districting systems, and failure to elect minority group candidates. Relying upon these precedents, the Leadership Conference pressed for an amendment to permit minorities to prevail if they could prove discriminatory results.

The Leadership Conference sought to convince Congress that its proposed amendment merely restored the pre-Bolden standard for constitutional violations and extended it to statutory voting discrimination claims. The difficulty with a results test is the amount of discretion that it confers on the courts and its potential, especially when administered by judges with limited leverage over a complex political process, to degenerate into a race-based numbers game and ultimately into racially proportional representation.

Although there were other remedies for that danger, such as making clear the types of circumstantial evidence that would prove discriminatory intent, the Leadership Conference pressed for an unqualified results test. Its tactic succeeded in the House, where civil rights work horse, Rep. Don Edwards, conducted low-visibility hearings. The fireworks in the Republican-controlled Senate, however, left no doubt that courts might use the new "results' language to strike down all electoral systems that impeded proportional representation.

But even there, where conservative southerners controlled the fate of the amendment, the Leadership Conference carried the day. In a demonstration of the act's power, southern senators decided not to offend their large minority constituencies. They desperately sought a compromise, eventually accepting a qualified "results' standard. This "Dole compromise' authorizes courts to premise violations in part on the "extent to which members of a [minority group] have been elected to office,' but, in the very next sentence, adopts a proviso that no right to proportional representation is thereby conferred. President Reagan, expressing satisfaction, signed the Janus like amendment into law.

The ink on the Dole compromise had hardly dried before the Court began to enforce the results test by emasculating its proviso. In the most important test of the Dole compromise, a North Carolina case decided last year, the Supreme Court invalidated a redistricting law for failing to insure enough safe black seats.

Thernstrom contends that these interpretations are propelling us down a slippery slope to a politics of explicit race-based entitlements akin to India's caste system. She may well be right. Earlier this year, the Justice Department issued new guidelines that reinforce its gerrymandering strategy. And last year, after Thernstrom's book went to press, the Supreme Court agreed to hear challenges to party-based gerrymandering, which can be adjudicated only by applying a proportional representation standard. Manhattan Republicans, it appears, can now go to court to complain of voting rights discrimination.

Real racial justice

To Thernstrom, the courts and the Justice Department have quietly perverted Congress's intent and have abused the judicial and administrative processes. Her account, however, justifies a rather different and in some ways more interesting and disturbing conclusion. Congress amended and extended the act in 1982 with its eyes wide open. Insofar as members ever undertand the complex questions on which they vote, they knew--especially in the Senate, where the issue was clearly drawn--that the department and the courts were using the act to move towards racially proportional representation. Bland euphemisms and high-minded rhetoric may have made it easier for politicians to ignore the reality, but in the end they blessed and even accelerated the law's transformation.

Suppose the original Voting Rights Act had instead been entitled the "Racial Gerrymandering Act,' elaborated in the statute's preamble as "An act to authorize bureaucrats and judges to guarantee safe seats to minority candidates.' Is it conceivable that Congress would have enacted it or that the Supreme Court would have upheld its constitutionality? To pose the question, of course, is to answer it. It is doubly important, then, to understand the political dynamics that had transformed the act by 1982.

The story that Thernstrom tells, although confined to voting, follows a more general and now familiar political pattern. At a moment of national crisis and moral energy, Congress enacts a regulatory statute to address a pressing but limited problem. As the moment passes, Congress naturally turns to other things. Its statute is then implemented bureaucratically and through case-by-case litigation. New constituencies, more narrowly focused and enduring than the broad coalition that gave birth to it, reshape the law. They mobilize supporters to expand its scope, buffer it against unwanted changes, and promote their own visions of what it ought to accomplish. That is the oft-told story--especially in the Monthly --of regulatory programs in areas as disparate as food and drugs, natural gas, and occupational licensing.

The Voting Rights Act is different only in detail. Its constituency includes civil rights groups seeking visible progress against the legacy of racism; minority candidates seeking protection from the competition of white or other minority politicians; and Justice Department lawyers sympathetic to both kinds of claims and in a position to satisfy them. As Thernstrom notes, few groups have any incentive to protest racial proportionality; those that do can be readily dismissed as racist or self-interested (imputations from which civil rights groups are generally immune). Politicians, especially those with significant minority concentrations in their districts and those seeking liberal support, have everything to gain and nothing to lose from endorsing the certified civil rights position on voting rights.

Indeed, packing minority voters into a few districts is good politics not just for minority candidates but for Republicans and conservative Democrats as well. Draining blacks from white districts, as Thernstrom shows, weakens liberals and moderate candidates and strengthens their opponents on the right. This disadvantage might be outweighed if minority constituents packed into a few districts, represented by persons of their own race, reaped more benefits than if their influence was exerted on a larger number of representatives, black or white. But no one has demonstrated this to be true, and there are reasons to doubt it.

The act's original purposes--to protect minority voters against discriminatory voting tests and to equalize electoral opportunity--were quickly achieved. Even when contrived by federal gerrymanders, the election of minority candidates has probably raised many minority voters' political consciousnesses and carries a symbolic importance essential to democratic politics.

But in the long run, the interests of minority voters, as distinct from those of minority candidates, are probably better served by a different strategy that would return to the act's original vision of equal political opportunity. While thwarting all majority efforts to weaken minority gains, it would reject the kind of "benign' racialism that we increasingly take for granted. Instead, it would encourage a more communal, integrative politics in which the politicians (usually white) who control the larger process must, in their own self-interest, compete for minority votes by taking minority demands seriously. In the end, that form of politics, not a paternalistic policy of electoral apartheid, will be the firmest foundation for enduring racial justice.