The Voting Rights Act of 2006

On February 27, 2013, the U.S. Supreme Court heard oral arguments in a case challenging the constitutionality of an important provision of the Voting Rights Act of 2006. [1] This provision extended for 25 years a requirement in section 5 for certain states to obtain pre-clearance from a special federal court or the U.S. Department of Justice for any changes in their election laws.[2]

Before we discuss that argument, we will look at the Voting Rights Act of 2006.[3]

Its stated Purpose in Section 2(a) was “to ensure that the right of all citizens to vote, including the right to register to vote and cast meaningful votes, is preserved and protected as guaranteed by the Constitution.” The last reference, of course, included the Constitution’s Fifteenth Amendment: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”

The 2006 statute did that by reauthorizing and extending for 25 years (until 2032) the following essential provisions of the original Voting Rights Act of 1965:

  • Section 2 forbids any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” Applicable nationwide, section 2 enables individuals to bring suit against any state or jurisdiction to challenge voting practices that have a discriminatory purpose or result.
  • Section 5 (the focus of the current case before the Supreme Court) only applies to certain “covered jurisdictions” and “prescribes remedies . . . which go into effect without any need for prior adjudication.”  Section 5 suspends “all changes in state election procedure until they [are] submitted to and approved by a three-judge Federal District Court in Washington, D.C., or the [U.S.] Attorney General.”
  • Such approval or preclearance may be granted only if the jurisdiction demonstrates that the proposed change to its voting law neither “has the purpose nor . . . the effect of denying or abridging the right to vote on account of race or color.”
  • The “covered jurisdictions” subject to section 5 were identified in section 4(b), as subsequently modified, as any state or political subdivision of a state that “maintained a voting test or device as of November 1, 1972, and had less than 50% voter registration or turnout in the 1972 presidential election.”
  • Upon satisfying certain criteria a state or other jurisdiction could obtain “bailout” from section 5 or be subject to “bail-in” to such coverage.

The Voting Rights Act of 2006 was overwhelmingly adopted by the Congress: 98 to 0 in the Senate and 390 to 33 (with 9 not voting) in the House. In doing so, the Congress acted on the basis of a legislative record over 15,000 pages in length, including statistics, findings by courts and the Justice Department, and first-hand accounts of discrimination.[4]

Given this extensive record before Congress, Section 2(b) of the Voting Rights Act of 2006 contains the following extensive congressional Findings:

  • “(1) Significant progress has been made in eliminating first generation barriers experienced by minority voters, including increased numbers of registered minority voters, minority voter turnout, and minority representation in Congress, State legislatures, and local elected offices. This progress is the direct result of the Voting Rights Act of 1965.
  • “(2) However, vestiges of discrimination in voting continue to exist as demonstrated by second generation barriers constructed to prevent minority voters from fully participating in the electoral process.
  • “(3) The continued evidence of racially polarized voting in each of the jurisdictions covered by the expiring provisions of the Voting Rights Act of 1965 demonstrates that racial and language minorities remain politically vulnerable, warranting the continued protection of the Voting Rights Act of 1965.
  • “(4) Evidence of continued discrimination includes—
  • “(A) the hundreds of objections interposed, requests for more information submitted followed by voting changes withdrawn from consideration by jurisdictions covered by the Voting Rights Act of 1965, and section 5 enforcement actions undertaken by the Department of Justice in covered jurisdictions since 1982 that prevented election practices,such as annexation, at-large voting, and the use of multimember districts, from being enacted to dilute minority voting strength;
  • “ (B) the number of requests for declaratory judgments denied by the United States District Court for the District of Columbia;
  • “(C) the continued filing of section 2 cases that originated in covered jurisdictions; and
  • “(D) the litigation pursued by the Department of Justice since 1982 to enforce sections 4(e), 4(f)(4), and 203 of such Act to ensure that all language minority citizens have full access to the political process.
  • “(5) The evidence clearly shows the continued need for Federal oversight in jurisdictions covered by the Voting Rights Act of 1965 since 1982, as demonstrated in the counties certified by the Attorney General for Federal examiner and observer coverage and the tens of thousands of Federal observers that have been dispatched to observe elections in covered jurisdictions.
  • “(6) The effectiveness of the Voting Rights Act of 1965 has been significantly weakened by the United States Supreme Court decisions in Reno v. Bossier Parish II and Georgia v. Ashcroft, which have misconstrued Congress’ original intent in enacting the Voting Rights Act of 1965 and narrowed the protections afforded by section 5 of such Act.
  • “(7) Despite the progress made by minorities under the Voting Rights Act of 1965, the evidence before Congress reveals that 40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.
  • “(8) Present day discrimination experienced by racial and language minority voters is contained in evidence, including the objections interposed by the Department of Justice in covered jurisdictions; the section 2 litigation filed to prevent dilutive techniques from adversely affecting minority voters; the enforcement actions filed to protect language minorities; and the tens of thousands of Federal observers dispatched to monitor polls in jurisdictions covered by the Voting Rights Act of 1965.
  • “(9) The record compiled by Congress demonstrates that, without the continuation of the Voting Rights Act of 1965 protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years.”

PresBush signign VRAOn July 27, 2006, President George W. Bush signed this statute in a ceremony on the South Lawn of the White House (as shown in the photo to the left). Attending the event were Attorney General Alberto Gonzalez and other members of the Cabinet, the leaders of the United States Senate and House of Representatives, representatives of the Fannie Lou Hamer family,  representatives of the Rosa and Raymond Parks Institute, members of the Martin Luther King, Jr. family and  civil rights leaders, including Dr. Dorothy Height, Julian Bond (the Chairman of the NAACP), Bruce Gordon, Reverend Lowery, Marc Morial, Juanita Abernathy, Jesse Jackson, Al Sharpton and Dr. Benjamin and Frances Hooks.

On that occasion President Bush said, “By reauthorizing this act, Congress has reaffirmed its belief that all men are created equal; its belief that the new founding started by the signing of the [Voting Rights Act of 1965] . . .  by President Johnson is worthy of our great nation to continue.”

That original statute, President Bush continued, “rose from the courage shown on a Selma bridge one Sunday afternoon in March of 1965 . . . [when] African Americans . . .  marched across the Edmund Pettus Bridge in a protest intended to highlight the unfair practices that kept them off the voter rolls.The brutal response [to the marchers that day] . . . stung the conscience of a slumbering America. . . . One week after Selma, President Lyndon Johnson took to the airwaves to announce that he planned to submit legislation that would bring African Americans into the civic life of our nation. Five months after Selma, he signed the Voting Rights Act [of 1965] into law in the Rotunda of our nation’s capitol.”

President Bush recognized that in the “four decades since the Voting Rights Act was first passed, we’ve made progress toward equality, yet the work for a more perfect union is never ending.” By signing the Voting rights Act of 2006, President Bush concluded, we “renew a bill that helped bring a community on the margins into the life of American democracy. My administration will vigorously enforce the provisions of this law, and we will defend it in court.”

———————–

[1] The 2006 statute’s correct title is the Fannie Lou Hamer, Rosa Parks, Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, Pub. L. 109-246, 120 Stat. 577 (2006).

[2] The states now subject to section 5 are Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia.

[3]  A prior post discussed the original Voting Rights Act of 1965. Other posts will discuss two other predicates for the recent Supreme Court argument: the previous Supreme Court case regarding the 2006 statute (Northwest Austin Municipal Utility District No. One v. Holder) and the 2012 decision of the U.S. Court of Appeals for the D.C. Circuit that is the subject of the that argument (Shelby County, Alabama v. Holder).

[4]  The 2006 Act also overruled two Supreme Court decisions interpreting the statute.

 

 

Questioning President Lyndon Johnson

In March 1966, during my final semester of law school, I was one of 38 national finalists for 16 White House Fellowships. This fellowship program had been started in 1964 by President Lyndon Johnson to provide one-year high-level positions in the White House and Executive Branch to future leaders so that afterwards the individuals could take that experience into their regular jobs and be better informed about important public policy issues and the workings of the federal government and, therefore, be better citizen leaders.[1]

 

East Room, White House

The other finalists and I were brought to a Virginia retreat center for interviews by members of the Fellows Commission, including John Gardner (then U.S. Secretary of Health, Education and Welfare Department) and C. Douglas Dillon (former U.S. Secretary of the Treasury Department). Afterwards on March 29th we all were bused to the White House and mid-afternoon were escorted to the East Room where the winners would be announced.

Before the announcement, however, President Johnson unexpectedly entered the Room. He first joined his daughter Luci Baines Johnson, who was substituting for her ill mother, to greet the finalists. The President then walked around, shaking hands and making individual comments. Johnson then called for everyone’s attention. He said that when he was a young man in Washington, he always wondered what it would be like to come to see the president and what the president would say while the young Johnson knew what he hoped the president would say. Johnson then remarked that perhaps the finalists would like to ask him questions rather than hearing him give a dry lecture.[2]

There was an awkward silence. The other finalists and I were hesitant to ask the first question, and Johnson told a few jokes to loosen up the people in the Room.

Finally one of the finalists asked what previous presidents would have been selected as Fellows if there had been such a program in their day. Johnson laughingly replied that Wilson, Franklin Roosevelt and Kennedy undoubtedly would have been selected, but he did not think that Truman and Johnson himself would have made it. Other finalists asked Johnson questions about the Viet Nam war, the current visit to Washington of Indian Prime Minister Indira Gandhi and the Fellowship program itself.[3]

Lyndon Johnson & Bill Moyers

Word of this impromptu presidential question and answer session got back to the White House Press Room, and journalists belatedly arrived and stood at the back of the Room taking notes. Johnson’s Press Secretary, Bill Moyers, was next to Johnson during the session and kept trying to end it, but Johnson was enjoying himself and continued to respond to questions.

During this session I was standing about 10 feet from President Johnson. There was concern at the time about inflation with the February 1966 Consumer Price Index up 0.5%, the highest increase in that month since 1951, and whether the President would ask Congress for a tax increase to fight inflation. So I asked the President if he would be seeking such a tax increase.

Tugging at his big right ear lobe, Johnson responded in a folksy manner in his Texan drawl. He first said that he was more worried about economists than he was about the economy and that he had not made up his mind on the tax increase idea. He added that he did not want to ask for an increase, especially in a midterm election year, but if he decided a tax increase was necessary to cool off the economy, he would ask Congress for a “modest” rise of 5 to 7 per cent in the taxes paid by individuals and corporations. Johnson also said he had ruled out reductions in federal government spending and wage and price controls as other ways to combat inflation.[4]

The President’s Daily Diary for that day says that this answer and his “mention of the Tax Rise to be proposed” was the headline in many newspapers the next day, as indeed it was.[5]

This news the next morning prompted a sharp decline in the stock market–the largest in two weeks. Reacting to this market decline, the President around noon on March 30th told journalists that he “absolutely” had not made up his mind about the need for a tax increase. The market responded with a momentary uptick, but it closed lower that day.[6] Thereafter I joked that I caused the stock market to fall.

At the conclusion of the meeting the prior day in the State Dining Room, the announcement of the 18 new Fellows was made.[7] I was not one of the lucky ones.


[1] White House, White House Fellows, http://www.whitehouse.gov/about/fellows.

[2] Lyndon Baines Johnson Library & Museum, President Lyndon B. Johnson’s Daily Diary Collection (March 29, 1966), http://www.lbjlibrary.org/collections/daily-diary.html.

[3]  Id.

[4] Id.; Pomfret, Johnson Favors 5-to-7% Tax Rise If Any Is Needed, N. Y. Times, Mar. 30, 1966, http://query.nytimes.com/mem/archive/pdf?res=F10B12FC3F59177B8EDDA90B94DB405B868AF1D3;  Rossant, Flexibility and Taxes; Johnson’s Hint of Relaxing Opposition To Rise Is Gain for ‘New Economists,’ N.Y. Times, Mar. 30, 1966, http://query.nytimes.com/mem/archive/pdf?res=F10D11FE3E59177B8EDDA90B94DB405B868AF1D3; Wicker, The Inflation Debate, N.Y. Times, Mar. 30, 1966, http://query.nytimes.com/mem/archive/pdf?res=F1071FFD3F59177B8EDDA90B94DB405B868AF1D3;  Editorial, The Economy’s Pulse, N.Y. Times, Mar. 30, 1966, http://query.nytimes.com/mem/archive/pdf?res=F10617F83F59177B8EDDA90B94DB405B868AF1D3.

[5] Id.

[6]  Abele, Tax Uncertainty Upsets Markets, N.Y. Times, Mar. 31, 1966, http://query.nytimes.com/mem/archive/pdf?res=F10D15F63959177B8EDDA80B94DB405B868AF1D3.

[7] Capital Fellows End a Year at Top, N.Y. Times, Mar. 30, 1966, http://query.nytimes.com/mem/archive/pdf?res=F10E1FFD3F59177B8EDDA90B94DB405B868AF1D3.

Encounters with Candidates JFK and LBJ

In the summer of 1960 I was an assistant to Donald “Duke” Norberg, the Chairman of the Iowa Democratic Party. I, therefore, witnessed the run-up in Iowa to the national Democratic Party’s July 1960 convention in Los Angeles.

Before the convention Senators John F. Kennedy and Lyndon B. Johnson were the leading contestants for the Party’s presidential nomination.

Lyndon B. Johnson

On June 19th LBJ and his wife, Lady Bird Johnson, came to Des Moines to woo the Iowa convention delegates. At a luncheon at the Hotel Fort Des Moines, LBJ emphasized the need for dynamic national leadership. He said that religion was not an issue whereas it undoubtedly was because Kennedy was Roman Catholic. Johnson then implicitly contradicted his own point by noting  that he was accompanied by some of his Texas supporters; one, he said, was a Methodist, one an Episcopalian, one a Jew and one a Roman Catholic who had been knighted by Pope Pius XII. Johnson stressed that the U.S. had lost friends in the world as well as military power and that the president had to make foreign policy decisions. In an implicit criticism of Kennedy who recently had said that at the May 1960 U.S.-U.S.S.R. summit meeting President Eisenhower should have apologized to Khrushchev for the then recent U.S. U-2 spy plane’s flight over the Soviet Union that the Soviets had shot down, LBJ said that the U.S. should not have apologized. Such an apology, Johnson said, was not in line with what America stood for.

Before the luncheon, Mrs. Johnson worked the room. She visited people at different tables and asked if they knew some of the Johnson’s friends from their various home towns. This was a demonstration of the Johnson campaign’s good organization. The following day I drove one of Johnson’s assistants, Cliff Carter, to visit some of the Iowa delegates who could not make the luncheon. Carter asserted that although Kennedy was leading in national delegate support, he would fade on the third ballot after a high of 640 while LBJ would gain strength so that by the third ballot he would have over 800 delegates to win the nomination.

John F. Kennedy

A week later, June 26th, JFK came to Des Moines for a reception at the Hotel Savery. I was not able to be in the room with Kennedy and the Iowa delegates. But I did see him in the hotel lobby and noticed the palpable excitement as he walked to the meeting. I overheard someone say, “Here is another Roosevelt.”

On July 13, 1960, the Los Angeles convention nominated Kennedy for president on the first ballot with 806 votes (or 52.9%). It then nominated Johnson for Vice President. In Kennedy’s July 15th acceptance speech he said, “The New Frontier of which I speak is not a set of promises– it is a set of challenges. It sums up not what I intend to offer the American people, but what I intend to ask of them.”

In the November election, JFK and LBJ won the national popular vote by 113,000 votes over Richard Nixon and Henry Cabot Lodge out of a total vote of 68,831,000. In Iowa, however, Nixon/Lodge won with 56.7% of the vote; Kennedy/Johnson only carried six of the 99 counties in the state.

This experience before my senior year at Grinnell College was financed by its Program in Practical Politics.