Pondering the Voting Rights Act

By WALTER ISAACSON

Congress must decide whether to extend it anew

"It is the single most important piece of civil rights legislation, other than the constitutional amendments, in the history of the country." So says Atlanta Mayor Maynard Jackson, referring to the Voting Rights Act of 1965. First proposed by Lyndon Johnson, the act was passed overwhelmingly by Congress after a voting rights drive in Selma, Ala., led by the Rev. Martin Luther King Jr. had ended in violent clashes between blacks and white police. The landmark law, which was renewed in 1970 and 1975, abolished literacy tests, forbade any other barriers to the registration of black voters and required six Southern states with a long history of discrimination to clear with the Justice Department any changes in their election laws.

This week hearings begin in the House Judiciary Committee on renewing key provisions of the law yet again; without a fresh mandate from Congress, they will expire next year. "This is going to be one of the toughest civil rights fights of all time," says liberal Washington Lawyer Joseph Rauh, 70, a veteran of many such battles. Opponents of renewal argue that the law's goal of enfranchising blacks has been reached. Says South Carolina's Strom Thurmond, chairman of the Senate Judiciary Committee: "After 17 years, the states ought to be given a chance to get out from under the act." Responds Senator Edward Kennedy, who along with Republican Senator Charles Mathias of Maryland and Democratic Congressman Peter Rodino of New Jersey is proposing a ten-year extension of the law: "The most successful civil rights law in history is in danger of falling victim to its own success."

No one questions that the Voting Rights Act has changed the face of American politics, particularly in the South. As late as 1960 only 5.2% of Mississippi's blacks were registered. By 1976 that figure was 60.7%. The number of black elected officials in the Southern states covered by the act has risen from 156 to 1,813 in the past twelve years.

Civil rights groups argue that there is still a long way to go, that for all their gains, blacks are still far from the summit of their potential political power. Mississippi, which is 37% black, has no black in any statewide elective office; of the state's 25 counties with black majorities, twelve still have all-white county boards. Nationwide, there are no black Senators, Governors or Lieutenant Governors.

The most important provision of the Voting Rights Act, and the one subject to the toughest challenge, is the requirement that localities with a history of discrimination submit any election law change to the Justice Department for clearance to ensure that it is not discriminatory. This chapter of the 1965 law mainly applied to states--most of them in the Deep South --where literacy tests had limited voter turnouts to less than half of the eligible population.* After the law was extended in 1970 and 1975, this requirement covered all or parts of 24 states including Texas and sections of California and New York. Nonetheless, the main opposition to the law comes from Southerners who feel that the clearance procedure is invidiously applied to their region. Says Republican Senator Thad Cochran of Mississippi: "Local officials have to go to Washington, get on their knees, kiss the ring and tug their forelock to all these third-rate bureaucrats."

Not quite. Of 34,798 local voting change proposals since 1965, the Justice Department has objected to 815. Only 23 of these vetoes have been challenged by communities in federal courts, and only four challenges have been successful. For the most part, Justice officials have used the law's authority to block attempts to gerrymander districts in ways that would dilute the black vote, and proposals to hold at-large elections, which would lessen the chance for minorities to be represented in proportion to their voting strength. When Charleston annexed some predominantly white suburbs, for example, the Justice Department required that it switch from using citywide elections for its council to a system of individual districts. Black representation on the council jumped from two of 16 seats to six of twelve.

Civil rights advocates cite the continuing Justice Department objections to proposed election laws as evidence that the Voting Rights Act indeed is still necessary. Shelving it would mean that each disputed proposal would have to be challenged in court; meanwhile, the new law would be in effect until the court acted. As former Mississippi Governor James Coleman said in 1960: "Any legislature can pass a law faster than the Supreme Court can erase it."

The chief opponent of the act is Thurmond, who has replaced Kennedy as chairman of the Senate Judiciary Committee. Once a rabid segregationist, Thurmond is now quite accommodating to the blacks who make up one-third of his constituency. He has hired blacks for his staff and helped appoint a black federal judge in his state. But he is not exactly a convert to the civil rights movement, and he wants to amend the Voting Rights Act to provide a way that states can avoid federal clearance of new election laws. If that cannot be done, then Thurmond and other Southern legislators want a renewed act applied to all 50 states. Civil rights leaders say this would create an unwarranted bureaucracy and dilute enforcement to the point where the act would be ineffective. Says Atlanta Mayor Jackson: "It's a trick and we're not going to fall for it."

Another opponent of the law, Republican Senator Orrin Hatch of Utah, would like to change the act so that the Justice Department could forbid a proposed local law only if it can prove there is an intent to discriminate. As the current law was written, the department had to show only that a change would have a discriminatory effect, whether intended or not. Argues Hatch: "I do not believe a community ought to be labeled a civil rights violator unless there is some wrongful motivation on its part."

Gerald Jones, chief of the Justice Department's voting rights section, feels that proving such motives would be impossible. Says he: "We're not dealing with dummies. They're not about to be so blatant that you can trace intent."

Hatch's approach is in line with a key decision by the Supreme Court, which last year upheld the Mobile, Ala., system of a citywide election for commissioners. The court ruled that opponents of the plan had not proved that it was "a purposeful device to further racial discrimination." The Kennedy-Mathias-Rodino bill would allow the Justice Department and courts to continue to consider a law's impact.

All sides agree that the battle to renew the act will be hard fought, and that the outcome will depend largely on the position taken by the Reagan Administration. Attorney General William French Smith has heard conflicting advice from his aides. Although no policy has been formulated, it is possible that Smith would move to abolish the law's preclearance requirement altogether. More likely, however, he will advocate a compromise approach that would allow communities to escape the requirement if they can prove that there is no longer a pervasive pattern of discrimination. He may also recommend that minor laws, such as changes in precinct boundaries, be exempt from clearance requirements.

The Administration faces a political dilemma with moral implications. To support weakening of the act would be in keeping with Reagan's states' rights philosophy, but would infuriate blacks, and probably reconfirm their traditional loyalty to the Democratic Party. More important, of course, is that any attempt to undo the civil rights gains achieved under the act would be socially destructive and morally unjustified.

--By Walter Isaacson. Reported by Evan Thomas/Washington

* The places originally affected: Alabama, Louisiana, Georgia, Mississippi, South Carolina, Virginia, half of North Carolina and scattered precincts elsewhere.

With reporting by Evan Thomas

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