South Carolina v. Katzenbach Voting Rights Act of 1965

1
South Carolina v. KatzenbachVoting Rights Act of
1965

• Danny Berliant
• Chris Bailey
• Sondra Furcajg
• Warren Linam-Church

2
The Historical Tension Between Disenfranchisement
and the Right to Vote
- Reconstruction and Enfranchisement - Official
Disenfranchisement - Progressive
Re-Enfranchisement
3
Reconstruction and Enfranchisement

• XVth Amendment
• 1870 Enforcement Act
• 1870-1873 1,271 criminal prosecutions in the
  South under the Enforcement Act

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1876 US Supreme Courtdecisions

• US v. Cruikshank private interference
• US v. Reese official interference
• A nullification of the Enforcement Act effects?

5
Power of Congress over federal elections

• US Supreme Court 1884, Ex Parte Yarbrough
• Assertion of congress power
• election of federal officers
• protect citizens right to vote in federal
  elections
• Power of Congress includes protection against
  private conduct
• Powerful tool given to Federal government for
  protecting voting rights

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Post-Reconstruction

• Domination of south by democratic party
• Withdrawal of federal government from the
  protection of voting rights
• Black registered voters kept from voting
  violence, fraud, corruption, Jim Crow laws
• Black votes diluted gerrymandering and
  malapportionment
• Voting process made more difficult eight box law

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Gerrymandering
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Official disenfranchisement

• 1890 Mississippi Constitutional Convention
  Mississippi solution
• Mississippi Supreme Court 1896, Ratcliff v.
  Beale By reason of its previous condition of
  servitude (), this race had acquired and
  accentuated certain peculiarities of habit,
  temperament, and of character () a patient
  docile people, but careless, (), without
  forethought ()

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Mississippi solution

• Literacy and comprehension test
• Poll taxes
• Strict registration deadline
• Grandfather clause
• Property qualifications
• Good character requirements
• White primaries
• Black voting rate dropped from 50 to 5 in
  Mississippi

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Mississippi Solution (Continued)

• Congress most Reconstruction Statutes repealed
  in 1894 Let every trace of Reconstruction
  measures be wiped from the statute books ()
• US Supreme Court Williams v. Mississippi 1898
  Federal Constitution allows states to take
  advantage of the alleged characteristics of the
  negro race

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Progressive Re-Enfranchisement

• World War II, New Deal
• Increase in black discontent and pressure
• Change in composition of the US Supreme Court
• 1947 Report by Presidents Civil Rights
  Commission To secure these rights

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Change in US Supreme Court decisions

• 1941, US v. Classic primaries are an integral
  part of election process extension Congress
  power over federal elections
• 1944, Smith v. Allwright outlaws white primaries
• 1949, Davis v. Schnell outlaws states new
  understand and explain test

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Congress 1st Civil Rights law since 1875

• 1957 Civil Rights Act Attorney General can sue
  anyone who violates persons voting rights
• 1960 Civil Rights Act creates federal voting
  referees appointed by local federal district
  courts
• 1964 Civil Rights Act alters state
  qualifications for voters in federal elections

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Katzenbachs Revolution Expansion of Federal
Power to Expand the Franchise

• - South Carolina v. Katzenbach
• State Coverage Formula
• Suspensions of Tests
• Federal Review of New Voting Eligibility
  Requirements
• Listing of Qualified Applicants by Appointed
  Federal Examiner

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Steady Progression of Change

• Voting Rights Act of 1957
• Gave Attorney General the right to issue
  injunctions against public and private entities
  on racial grounds
• Voting Rights Act of 1960
• Allowed joinder of states as parties in lawsuits
• Voting records had to be provided to opposing
  council
• Courts given ability to register voters in areas
  of historic discrimination
• Voting Rights Act of 1964
• Outlawed particular tactics of discrimination
• Expedited hearing of voting cases before special
  three judge panels

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Voting Rights Act of 1965

• Consisted of four main sections
• Coverage Formula
• Suspension of all voting eligibility tests
• Federal review of new rules
• Federal examiners

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Coverage Formula

• The VRA created a two step test for determining
  whether a State was subject to the new voting
  provisions
• AG determination that the State maintained a
  test or device for voter eligibility
• Director of the Census determined that less than
  50 of the States voting age residents were
  registered or voted in the previous election

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Suspension of Eligibility Tests

• Any State that fell under the coverage formula
  was temporarily barred from enforcing eligibility
  tests (literacy requirements, property ownership,
  etc.)

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Federal Review of New Rules

• All States falling under the coverage area must
  submit any news rules to the District Court for
  the District of Columbia for approval.
• (Note Only issue that was not unanimously
  approved by the U.S. Supreme Court)

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Federal Voting Examiners

• AG appointed federal examiners to oversee voter
  registration in areas that
• Have received at least 20 written complaints
• Examiners are necessary to guarantee the
  protections of the 15th Amendment.
• Federal examiners test voting qualifications of
  applicants for suspect States.
• Examiners submit list of eligible voters to State
  authorities who must then add those names to
  their voting register.

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South Carolina v. Katzenbach (1966)

• South Carolina was the first state to fall under
  the VRA coverage formula.
• U.S. Supreme Court granted original jurisdiction
  due to the social unrest across the nation at
  that time.
• Katzenbach, a staunch civil rights advocate and
  the Attorney general, served as a catalyst for
  both supporters and opponents to civil rights
  legislation.

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South Carolina v. Katzenbach Contd.

• Katzenbach himself gave the oral argument on
  behalf of the U.S. government.
• U.S. Supreme Court ruled unanimously approving
  all provisions, except
• Justice Black Cases and Controversies

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Interview with Katzenbach

• Legislation v. Litigation
• Oral Argument in front of USSC
• Significance of Voting Rights Act of 1965
• Voting Discrimination Today

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Modern Face of Voter Discrimination Right to
Access

• Progression of Voting Rights Act
• Bush v. Gore
• Other Forms of Discrimination
• Obama v. McCain
• Department of Justice

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Voting Rights Act of 1965

• Section 5 of Voting Rights Act - Preclearance
• Extended for 5 years in 1970
• Extended for 7 years in 1975
• Mobile v. Bolden 1980
• Need proof of racially discriminatory purpose
• 1982 Congress got rid of new heightened std.
• Only discriminatory impact required
• Extended Section 5 another 20 years

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Types of Voting Discrimination Cases

• First Generation Physical intimidation and
  blatant disenfranchisement
• Mostly gone by 1980s
• Second Generation Voter dilution
• Blatant but less violent
• Third Generation Voter dilution
• Less blatant, better justifications
• ExRedistricting of minority districts

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Bush v. Gore

• Jesse Jackson rallies do not get publicity
• Stories of racial discrimination
• Picture identification
• Sent on wild goose chase

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Bush v. Gore Statistics

• African Americans made up 54 of votes not
  counted
• Automatic machines rejected 14.4 of African
  American votes and 1.6 of white votes
• Rejected African American precinct ballots twice
  the rate as Latino precincts and four times the
  rate as white precincts

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Legal Ways of Exclusion

• Ex-felons not allowed to vote
• Voting is held on Tuesday
• Blue collar voters cannot get off work

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Obama v. McCain

• Line waiting time
• 68 of white voters waited 10 minutes or less
• 45 of black voters waited 10 minutes or less
• 5 of white voters waited an hour or longer
• 15 of black voters waited an hour or longer

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Obama v. McCain

• Photo ID Requests
• ½ of white voters asked for photo identification
• 2/3 of black voters asked for photo
  identification
• African American Self-Discrimination??
• African American Poll workers asked 46 of
  African Americans for ID and only 30 of whites

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DOJ Enforcement

• Blocked racial discriminatory procedures in
  Georgia this past summer
• Federal observers
• Make sure voting procedures are being done
  properly
• DOJ educates states and localities on how to
  conduct procedures without discriminating

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Contemporary Face of Voter Discrimination
Litigation

• Northwest Austin Municipal Utility District
• Justice Roberts Opinion
• Justice Thomas Dissent
• U.S. v. Euclid City School Board
• Lulac of Texas v. Texas Democratic Party
• DOJ Attorney Scandal

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Northwest Austin Municipal Utility District
Number One v. Holder

• Plaintiff Small district that set utility rates
  for the northern part of Travis County (Austin)
• The district tried to change how it elects the
  board that sets the rates
• Because Texas is subject to Section 5 of the VRA,
  the board had to get preclearance on any change

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Northwest Austin Municipal Utility District
Number One v. Holder
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Northwest Austin Municipal Utility District
Number One v. Holder

• The District has 2 arguments
• That it is not a political subdivision as
  defined by the VRA
• That Section 5 of the VRA is unconstitutional

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Northwest Austin Municipal Utility District
Number One v. Holder

• Roberts opinion
• The District is a political subdivision as
  defined by the VRA
• There is no reason to address the
  Constitutionality of Section 5 of the VRA

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Northwest Austin Municipal Utility District
Number One v. Holder

• Thomas Dissent
• Because the 2 different arguments offer 2
  different remedies, the Constitutional question
  must be addressed
• Section 5 of the VRA is unconstitutional

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Northwest Austin Municipal Utility District
Number One v. Holder

• Thomas dissent
• 15th Amendment prohibits denying the ballot to
  anyone based on race, color, or previous
  condition of servitude
• 10th Amendment the states retain all power not
  delegated to the federal government

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Northwest Austin Municipal Utility District
Number One v. Holder

• Thomas dissent
• 15th Amendment prohibits denying the ballot to
  anyone based on race, color, or previous
  condition of servitude
• Section 5 any change must be cleared by the DOJ
• Even if is found to not discriminate based on
  race, color, or previous condition of servitude
• Katzenbach ratified this expansion of the power
  of the 15th amendment

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Northwest Austin Municipal Utility District
Number One v. Holder

• Thomas dissent
• Katzenbach decision was justified due to the
  extraordinary nature of the problem
• Violence
• Repeated attempts to circumvent federal voting
  laws

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Northwest Austin Municipal Utility District
Number One v. Holder

• Thomas dissent
• The 2006 VRA was not passed with similar findings
  by congress
• Congress acknowledged the primary motivations do
  not exist anymore
• Congress justified the 2006 VRA because of
  secondary concerns of discrimination

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Northwest Austin Municipal Utility District
Number One v. Holder
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Northwest Austin Municipal Utility District
Number One v. Holder

• Thomas dissent
• Secondary motivations are not instances of
  purposeful discrimination
• Isolated incidents of discrimination are not
  evidence of systematic discrimination

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LULAC v. Texas Democratic Party

• In Texas, political parties run the primary
  elections
• In 1996, the Supreme Court held that political
  parties are subject to the VRA if they run
  elections that are similar in scope to elections
  that would otherwise be run by states

46
LULAC v. Texas Democratic Party

• In the 2008 primary election, the TDP had a plan
  to assign delegates based on the vote for the
  democratic gubernatorial candidate in the 2006
  election
• White Districts received more delegates even
  though Latino districts voted for the candidate
  as a higher
• Similar to the 2000 presidential election

47
DOJ Attorney Scandal

• The Bush administration pushed some attorneys to
  pursue cases involving voter fraud
• Some of these cases were to pressure states to
  remove voters from the voting rolls
• When attorneys refused, they were fired

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DOJ Attorney Scandal

• The administration suggested the attorneys were
  fired for poor performance
• A congressional investigation revealed that the
  failure to pursue those cases was the primary
  motivating factor
• It led to the resignation of Attorney General
  Alberto Gonzales

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DOJ Attorney Scandal

• Issues
• Is the VRA sufficient if the DOJ can be
  politicized to this extent?
• Is this a reason to support the preclearance
  provision?

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