Voting Rights and Redistricting

by

Rodolfo O. de la Garza

• LAST REVIEWED: 19 March 2013
• LAST MODIFIED: 19 March 2013
• DOI: 10.1093/obo/9780199913701-0002

Introduction

The Voting Rights Act (VRA) of 1965, its subsequent amendments, and related court decisions are arguably the nation’s most significant legislation dealing with electoral issues. It was initially designed to remedy anti–African American political discrimination, but to the chagrin of conservative critics, such as Abigail Thernstrom, since 1975 it has expanded to include Latinos and other language minorities and to affect redistricting. This has enabled Latinos to enhance their access to the electoral system. Latinos have collaborated with African Americans to eliminate practices likely to diminish minority electoral access while also focusing on institutionalizing policies and procedures relevant to each group’s distinctive characteristics that guarantee them equal access to the polls and on creating districts that provide Latinos the opportunity to elect candidates of their choice whatever their race or ethnicity. This article provides an overview of these Latino-specific efforts. It begins by describing the original design of the VRA when it focused on African American political rights. It then examines how Latinos came to be covered by the VRA and the impact this had on their electoral life. The essay also considers the issues that Latino inclusion has generated and the unanswered questions it has raised. Overall, the research reviewed indicates that the VRA has contributed to increased Latino electoral participation and representation.

The 1965 Voting Rights Act

The Voting Rights Act (VRA) changed southern politics and with that, the nation. The 1969 Allen v. State Board of Elections and the 1966 South Carolina v. Katzenbach decisions respectively ruled that the VRA outlawed literacy tests and grandfather clauses and approved eliminating poll taxes in state and local elections in 1966; empowered federal examiners to register qualified citizens to vote in Alabama, Georgia, Louisiana, Mississippi, South Carolina, Texas, and part of Virginia, jurisdictions long dominated by Democrats; created direct links between individuals in these states and Department of Justice (DOJ) authorities that enabled potential voters to appeal to the DOJ to invalidate state practices that effectively disenfranchised minority electorates; and created procedures that empowered the DOJ or the District Court for the District of Columbia to evaluate electoral rules changes proposed by the aforementioned seven states. These changes so dramatically affected southern political regimes that, according to Bill Moyers (Moyers 1978), President Lyndon B. Johnson predicted that they would deliver the South to the Republican Party for “a long time to come.” As foreseen, in nine of thirteen southern states at least half of the eligible blacks had registered to vote within slightly more than one year, and federal examiners had registered one-third of these new voters. After the act’s renewal in 1975, Section 2 became especially useful regarding challenges to at-large election schemes and remained a major tool combating any voting standard, practice, or procedure resulting in the denial or abridgment of the right of any citizen to vote on account of race, color, or membership in a designated language minority group in all jurisdictions in the nation. For unknown reasons, as de la Garza and DeSipio 1993 notes, when the VRA was enacted it made no mention of Latinos. But the 1975 renewal was expanded to include them. Congress amended the law in 1982 to prohibit any voting practice or procedure that had a discriminatory result without requiring proof of intentional discrimination. Section 5 is a special provision of the VRA but is not a permanent part of it. Section 5 was first enacted for five years in 1965 as temporary legislation, renewed in 1982 for twenty-five years, and renewed again in 2006 for twenty-five more years. It is the most contentious provision of the act, because it prevents states from changing election practices until the proposed changes have been approved by the US Attorney General or after a lawsuit before the US District Court for the District of Columbia. When enacted, it was applicable only to certain states determined by a formula that included, first, whether a political jurisdiction maintained a “test or device,” restricting the opportunity to register and vote, and, second, whether the director of the US census determined that less than 50 percent of persons of voting age were registered to vote on 1 November 1964 or that less than 50 percent of persons of voting age voted in the presidential election of November 1964. This formula resulted in Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia in their entirety coming under Section 5. In addition, certain political jurisdictions in Arizona, Hawaii, Idaho, and North Carolina were also covered by Section 5. Voting changes in any of these jurisdictions had to be approved by the US District Court for the District of Columbia or by the attorney general; otherwise they could not be implemented. Gerstein 2012 reports that Republican officials protested the use of Section 5 in the post-2010 census redistricting battles, arguing that the racist environment that legitimized the need for such potentially unrestrained DOJ intervention in state politics no longer exists and that therefore Section 5 should be eliminated. Samuel Issacharoff, a highly respected specialist in voting rights law who formerly defended the need for Section 5, also asks whether it is still necessary (Issacharoff 2006).

• Allen v. State Board of Elections. 393 U.S. 544, 1969.

  This appellate court decision upholds the constitutionality of Section 5 of the VRA, the act’s most contentious provision.

• de la Garza, R. O., and Louis DeSipio. “Save the Baby, Change the Water, and Scrub the Tub: Latino Electoral Participation after Seventeen Years of VRA Protection.” Texas Law Review 71.7 (1993): 1479–1539.

  A review of the history of the political discrimination Latinos experienced and of the issues associated with efforts to expand the VRA to include Latinos.

• Gerstein, Josh. “Voting Rights Act under Siege.” Politico, 19 February 2012.

  Journalistic report regarding efforts by Republican state officials and the presidential candidate to eliminate Section 3 of the VRA.

• Issacharoff, Samuel. “Does Section 5 of the Voting Rights Act Still Work?” In The Future of the Voting Rights Act. Edited by David L. Epstein, Richard H. Pildes, Rodolfo O. de la Garza, and Sharon O’Halloran, 107–124. New York: Russell Sage Foundation, 2006.

  Argues that in view of the increased access of minority groups to the electoral system and changes in social conditions and race relations, the validity of maintaining Section 5 based on events of the 1960s is highly questionable.

• Moyers, Bill. “Second Thoughts: Reflections on the Great Society.” New Perspectives Quarterly 4 (Winter 1978): 13–15.

  Moyer’s discussion of the goals and policies of the Great Society. Contains his recollection regarding President Johnson’s prediction of the negative political consequences of the VRA’s enactment.

• South Carolina v. Katzenbach. 383 U.S. 301, 1966.

  A cornerstone of the jurisprudence establishing the constitutionality of the VRA. The court considered the VRA so essential to antidiscrimination litigation that this is one of the rare examples of the Supreme Court exercising its right of original jurisdiction, that is, the case was filed in the Supreme Court directly by South Carolina rather than arriving on the Supreme Court’s docket on appeal from another court. The Supreme Court ruled that Congress’s enforcement powers extended to the VRA.

• Thernstrom, Abigail. Whose Votes Count? Affirmative Action and Minority Voting Rights. Cambridge, MA: Harvard University Press, 1987.

  Arguably the most significant conservative critique of the VRA. Thernstrom supports policies to end black disenfranchisement but argues that over time the VRA has evolved so far beyond that as to threaten the future of the nation’s democracy.