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Recent developments.

H.R. 5971, American Elections Act of 2008 (Heller), which was introduced on May 6, 2008, would require that in elections for federal office ballots be printed only in English, effective November 2008. The bill would amend Section 203 of the Voting Rights Act (which requires covered jurisdictions to provide election language assistance for certain limited-English citizens) to require covered jurisdictions to provide election language assistance only for American Indians or Alaskan Natives. See section "110th Congress" later in this report.


Right to Vote

13th Amendment. Prior to the Civil War, the franchise was denied to nearly everyone except white male property owners who were over 21 years of age. After the War, the 38th Congress proposed the 13th Amendment to the state legislatures; it became a part of the Constitution in December 1865. The 13th Amendment prohibits slavery in the United States and gives Congress power to enforce this article. The 39th Congress sought to expand suffrage to citizens in the United States. With passage of the First Reconstruction Act of 1867, it required former confederate states to write new constitutions that guaranteed the right of all males to vote, irrespective of race. To insulate its efforts from partisan politics and presidential vetoes, Congress turned to constitutional amendments. In June 1866, it proposed the 14th Amendment to the state legislatures.

14th Amendment. The 14th Amendment contains five sections. Section 1 prohibits the states from denying citizens of the United States equality before the law. Section 2 was devised to prevent the southern states from using literacy and property tests to keep African Americans from voting while retaining their full population-based representation in the House of Representatives. It provides that when the right to vote is denied to any 21-year old male resident of a state at any election for electors for President and Vice President of the United States, congressional representatives, the executive and judicial officers of the state or members of the state legislature, that state's congressional representation shall be reduced in proportion to the number of male citizens who were denied the right to vote. The exception for Section 2 is if the voter has been guilty of rebellion or other crime. Section 3 bars persons who voluntarily participated in the rebellion against the United States from election to any federal office, civil or military, until Congress, by a vote of two-thirds majority in each House, removes such disability. Section 4 prohibits payment of the Confederate debt. In Section 5, Congress is empowered to enforce provisions of this article through appropriate legislation. On July 28, 1868, the 14th Amendment became a part of the Constitution.

15th Amendment. The 40th Congress proposed the 15th Amendment to the state legislatures in 1869. The 15th Amendment protects the right of male suffrage without regard to "race, color, or previous condition of servitude" and empowers Congress to enforce this article. In March 1870, the 15th Amendment became a part of the Constitution.

From 1867 to 1875, Congress passed election laws that guaranteed the right to vote in national and state elections and established federal supervision of election and voter registration. To protect the political, legal and social equality of all Americans, Congress passed civil rights legislation that contained provisions for the imposition of fines and criminal penalties on those convicted of conspiring to deprive citizens of their civil rights. As a consequence of these laws, black participation in the political process rose dramatically. For example, during this nine-year period nearly 70% of the eligible black voters were registered; 10 blacks were elected to the House and two to the U.S. Senate. Besides electing blacks to office, black voters heavily influenced the outcome of local, state, and national elections throughout the South. (1)

Most southern whites opposed the enfranchisement of former slaves. Some resorted to a number of tactics to discourage or stop blacks from participating in the political process, such as fraud, violence (including murder), and economic blackmail. The Compromise of 1877 essentially ended Reconstruction, as withdrawal of federal troops from the South allowed those who supported the disfranchisement of blacks to assume control of most state governments. These legislatures used creative measures to make voting difficult. They passed bills to reduce the numbers of black voters by requiring them to travel great distances to voting precincts and designed complex balloting procedures that amounted to literacy tests. Challenges to registration rulings were heard by local officials who were unlikely to be sympathetic. (2)

A South Carolina law of 1882, for example, required that special ballots and boxes be placed in every polling place for each office on the ballot, and that voters put their ballots in the correct boxes. No one was allowed to speak to a voter, and if he failed to find the correct box, his vote was thrown out. (3) All of these tactics--both legal and illegal--combined to minimize the presence of blacks in the electoral process. But some southern whites were uncomfortable with the resort to fraud, murder, bribery, and theft to disfranchise most blacks. They sought a permanent legal way to limit black voting. (4)

Constitutional Disfranchisement

During the last decade of the 19th century, a number of southern states held constitutional conventions to permanently disfranchise black Americans. Although delegates at these conventions favored repeal of the 15th Amendment, they feared the reaction of the rest of the nation. They need not have though, for the political climate of the country, both north and south, seemed to favor limiting black participation in the political process (though for different reasons). Federal enforcement of election laws and protection of citizens were being withdrawn. The Supreme Court, in 1883, narrowly interpreted provisions of civil rights laws passed during Reconstruction or declared them unconstitutional. Congress repealed many sections of the Enforcement Act. These rulings effectively removed the federal government from the business of protecting the civil rights of all Americans for decades. (5)

At its constitutional convention of 1890 (called for the express purpose of removing blacks from the voting booth), Mississippi devised a system that effectively disfranchised most blacks and was variously adopted by other southern states. Because delegates at the convention feared voters would reject the new constitution, they did not submit it for popular approval; instead the convention, itself, approved, promulgated and declared the constitution to be in effect. The Mississippi constitution of 1890 differed from its predecessor in that it replaced the six months residency requirement with a two-year one; imposed a literacy test for prospective voters, as well as a property requirement of three-hundred dollars; introduced an annual poll tax of two dollars; and disqualified convicts. (6)

Virginia's election code in 1894 required that registration and poll tax certificates be shown at the polls, and that the names of candidates be printed on the ballot by office not party. This was an extremely confusing arrangement for barely literate and illiterate voters. Voters had a maximum of two-and-a-half minutes to vote, if others were waiting in line. As a consequence of this code many black and white illiterate residents were disfranchised. (7)

In 1898, Louisiana introduced a new device into its constitution, the "grandfather clause." It required an addition to the permanent registration list of the names of all male persons whose fathers and grandfathers were qualified to vote on January 1, 1867. Since blacks were denied the franchise in 1867, none of them qualified under this provision. The Supreme Court in 1915 declared the "grandfather clause" unconstitutional. (8)

All but two southern states used literacy tests as voting limitation devices; however, none of the new constitutional provisions mentioned race, that is, they were racially neutral. But the impact of these laws was devastating for blacks. For instance, in Mississippi, in 1867, 70% of eligible blacks were registered to vote; by 1889, only 9%. In Louisiana, in 1896, 130,334 blacks were registered to vote, by 1900, only 5,320. Alabama in 1900 had 181,471 black males of voting age, but after the new constitution was adopted only 3,000 registered. (9)

Other Disfranchisement Tactics

Although the vast majority of African-American voters were disfranchised by 1910, some continued to vote, causing concern for some southern whites. In an address on the right of suffrage before Congress in 1927, Senator Cole Blease of South Carolina reflected the political climate for African Americans in his state. He boldly admitted that the purpose of the 1895 South Carolina constitution was to disfranchise African Americans. Concerning the presidential election of 1922, he stated, "I think Mr. [Calvin] Coolidge received 1100 votes in my state. I do not know where he got them. I was astonished to know they were cast and shocked to know they were counted." (10) Unfair examinations, intimidation, and delaying registration until the deadline had passed were other tactics employed to effectively remove African Americans from the ballot box.

In Florida, payment of the poll tax automatically carried registration with it, but other methods were used to keep African Americans from voting. In the 1920s, an African American who attempted to vote might discover that his name was not on the voters list, that the name or address on his certificate differed from that on the voters list, or that his name through oversight had been placed on the white list--all of which were technicalities that could disqualify him from voting. His only recourse was the courts, the expense of which he would have to bear, and even if a court ruled in his favor (which was unlikely) the ruling would not be timely. (11)

African Americans who tried to register to vote in New Orleans, Louisiana, complained that ignorant whites employed at registration offices were empowered to decide whether an individual had correctly interpreted the constitution of the United States; if the individual were African American, the registrars would declare that his answer was incorrect. (12)

A teacher in North Carolina reported that when she attempted to register to vote, she was told that her request to vote at three places had been reported and she was being watched by hostile observers and other such statements that implied she could become a victim of violence. (13)

Early Supreme Court Cases

These laws stood for decades. Eleven southern states determined that the state political party nominating process was a private action and, therefore, that party officials could legally restrict participation in the primary to whites only (thus the name "white primary"). Since the winner of the primary in a one-party state, was in essence elected to office, African Americans were eliminated from the electoral process. (14) A suit was filed in Texas, Smith v. Allwright, (15) challenging the constitutionality of the white primary; in 1944, the Supreme Court declared the white primary unconstitutional.

Generally, southern legislatures developed other means to minimize blacks' access to the voting booth. In July 1957, the Alabama legislature, with Act No. 140, redrew the boundaries of the city of Tuskegee to exclude Tuskegee Institute (now Tuskegee University) and a majority of the nearly 5,400 black residents. As a consequence, thousands of black residents and nearly all blacks who were registered to vote could no longer participate in Tuskegee municipal elections. A resident, Charles G. Gomillion, in Gomillion v. Lightfoot (16) charged that the act violated both the 14th Amendment (the equal protection clause) and the 15th Amendment. This was an important case because two issues were involved--voting rights for blacks and redistricting by state legislatures. (17)

In the past, Supreme Court rulings appeared to give state legislatures absolute control over setting municipal boundaries. In 1957, as the Court began to dismantle barriers to black political participation, it considered the redistricting issue inherent in Gomillion v. Lightfoot. Although Act No. 140 did not mention race, it was clear that its intent was racially discriminatory. Yet, on appeal, the Fifth Circuit Court of Appeals, by a 3-2 vote, upheld a lower court's dismissal of the case on the grounds that it lacked "authority or jurisdiction" to declare the law void. Dissenting Judge John Brown wrote that the fact that act No. 140 did not discriminate on its face was insignificant; the act "effectively disfranchised all but four or five black voters." (18) Brown also considered the fact that Macon county (the county in which Tuskegee was located) had been without a board of registrars for 18 months and that the state legislature was trying to abolish the county through a constitutional amendment. Since most eligible whites were already registered, they had no real need for a registrar. But thousands of blacks were not registered and were unable to register in Tuskegee for lack of a board of registrars. Therefore, the traditional method of correcting political abuse at the polls was denied blacks. Consequently, Judge Brown found the law unconstitutional. He wrote that "the business of judging in constitutional fields is one of searching for the spirit of the Constitution in terms of the present as well as the past, not the past alone." On appeal, the Supreme Court agreed with Judge Brown and ruled unanimously that act No. 140 violated the 15th amendment. (19)

Civil Rights Acts of 1957, 1960 and 1964

Congress passed the Civil Rights Act of 1957 to protect black voting rights through the judicial process. By provisions of the act, the Attorney General was authorized to bring lawsuits to protect equal voting rights, and persons who disobeyed court orders prohibiting discrimination in voting could be held in criminal contempt. Further, the act authorized appointment of another Assistant Attorney General to head a Civil Rights Division in the Department of Justice. It provided that special three-judge federal district courts be convened, with jurisdiction to hear civil rights cases taken out of state courts by the Department of Justice. A six-member Commission on Civil Rights was created to gather information on discrimination in voting and to issue annual reports. (20)

The Commission on Civil Rights held hearings throughout the nation and discovered that some registrars discriminated against blacks for racial reasons. Because of the length of legal hearings and the delaying but legal tactics employed during lawsuits, the Civil Rights Act of 1957 was mostly ineffective. After three years only four cases were heard and decided. It was felt that the law needed strengthening to prevent evasive measures by registrars and produce more timely rulings; so, in 1960, Congress passed another civil rights law.

The Civil Rights Act of 1960 sought to fill some of the loopholes in the 1957 Act. It provided that if a registrar resigned after complaints had been filed, the proceeding could be instituted against the state. It authorized federal referees to investigate complaints of voting discrimination and to register qualified voters. The act required voting records to be preserved for 22 months following any primary, special, or general election at which there were candidates for federal office; and it empowered a federal district court judge to issue a registration order, and to replace state registrars with federal officials. (21)

These measures were found inadequate, in part because the individual black citizen, operating in a hostile environment, had to be the primary initiator of legal action. In a report prepared in 1963, the Commission on Civil Rights concluded that this was a role that the federal government should assume. Federal efforts to ban racial discrimination relied heavily on litigation. The Commission rejected this litigious approach because it was time consuming and did not increase black registration significantly. (22)

Most national political leaders remained committed to a litigious, low-profile approach to registering blacks in the South until violence erupted in Birmingham, Alabama, in 1963, and Philadelphia, Mississippi, in 1964. After the violence, Congress passed the Civil Rights Act of 1964, which contains provisions that attempted to have three-judge federal district courts hear cases more quickly, and allow for temporary voting registrars. It forbids local officials to apply standards to some voter registrants (e.g., black registrants) that had not been applied to others (e.g., white registrants) already found qualified to vote. The act also provides that in any voting rights court case there shall be a presumption of literacy for all voter applicants who have completed the sixth grade in an accredited, English-speaking school.

These provisions proved ineffective as well. Sometimes, after lengthy litigation caused an election law to be judicially invalidated as discriminatory, the state or local jurisdiction would pass and enforce a different law or regulation designed to circumvent the court order. The Justice Department called for a "new approach" that would go "beyond the tortuous, often-ineffective pace of litigation." (23) In drafting another voting rights bill, it sought to impose constraints on the use of literacy tests and other devices that denied blacks access to the ballot box, and to establish an administrative presence of federal marshals in the southern states to assist blacks in their efforts to vote. The outbreak of violence in Selma, Alabama, as a result of a black voter registration drive, aided the Department in its efforts. On August 6, 1965, the Voting Rights Act was signed into law. (24) It created administrative remedies that automatically became applicable to certain jurisdictions under a statutory coverage formula, without the need for prolonged litigation. In South Carolina v. Katzenbach, (25) the Supreme Court upheld the constitutionality of the Voting Rights Act.
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Title Annotation:The Voting Rights Act of 1965, As Amended: Its History and Current Issues
Author:Laney, Garrine P.
Publication:Congressional Research Service (CRS) Reports and Issue Briefs
Date:Jun 1, 2008
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