EXTENSION OF THE VOTING RIGHTS ACT OF 1965 THURSDAY, APRIL 10, 1975 U.S. SENATE, SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS Washington, D.C. The subcommittee met, pursuant to recess, at 9:35 a.m. in room 2228, Dirksen Senate Office Building, Senator John V. Tunney (chairman of the subcommittee) presiding. Present: Senator Tunney. Also present: Jane L. Frank, chief counsel; Marshall Goldberg, majority counsel; J. C. Argetsinger, minority counsel; Ben F. Dixon IV, research assistant. Senator TUNNEY. The subcommittee will come to order. Today we are very pleased to have as our leadoff witnesses Mr. Nicholas Katzenbach, former Attorney General, now member, Executive Committee, Lawyers' Committee for Civil Rights Under Law, and Frank Parker, assistant chief counsel, Mississippi office, Lawyers' Committee on Civil Rights Under Law. It is a pleasure having both of you gentlemen with us. Mr. Katzenbach, I cannot but recall during the passage of the Voting Rights Act when you were in the Justice Department you had a very significant role in helping to draft it and to assure its passage. So we are pleased to have your expertise and current interest before the subcommittee. TESTIMONY OF NICHOLAS deB. KATZENBACH, EXECUTIVE COMMITTEE, LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW Mr. KATZENBACH. Thank you very much, Mr. Chairman. I do think it is one piece of legislation in which I was involved that has had great success and has had enormous consequences and significance to the States in the South. I have a prepared statement. Mr. Chairman and members of the subcommittee. I am Nicholas deB. Katzenbach, a member of the Executive Committee of the Lawyers' Committee for Civil Rights Under Law, accompanied by Frank R. Parker, assistant chief counsel of the Lawyers' Committee's Mississippi office. I am pleased to appear here today on behalf of the Lawyers' Committee to testify in support of the extension of the Voting Rights Act. Personally, my involvement with the problems of voting discrimination dates back to the early 1960's when I was Deputy Attorney Gen 52-004-75-9 eral working on litigation to enforce the 15th amendment. Then later, as Attorney General, I worked on the original draft of the Voting Rights Act, which I saw as the necessary approach to assure that the right to vote was protected. Starting in 1971, the Lawyers' Committee established an election law project to assist community groups and their lawyers to enforce the Voting Rights Act and to monitor submissions of election law changes by covered jurisdictions to the Attorney General under section 5. Additionally, the Mississippi office of the Lawyers' Committee has long been involved in protecting the right to vote in that State. In my testimony, I will address the origins of the Voting Rights Act, an overview of its effects, and the general reasons which compel its extension. Mr. Parker will then address the specifics of the Mississippi experience. Finally, I wish to enter in the record Armand Derfner's testimony in the House for the Lawyers' Committee. Mr. Derfner's testimony details the experience of another State, South Carolina. I think a brief review of the history of the 15th amendment and efforts to enforce it will provide us with the perspective necessary to see the point at which we now find ourselves. The 15th amendment, adopted in 1870, provides that the right to vote shall not be denied or abridged on account of race, color, or previous condition of servitude and gives Congress the power to enforce this right by appropriate legislation. This amendment protects the most elementary right of our political system. The right of all members of a society to participate freely in its political processes is the basis of a true democracy. But, for almost a hundred years after this constitutional amendment was adopted, this precious right remained unprotected. In the wake of the adoption of the 15th amendment, Congress enthusiastically endorsed the principle of free access to the ballot by adopting the Enforcement Act of 1870. Although this legislation granted broad enforcement powers to the Federal Government, Federal authority embraced this legislative mandate only briefly. The period of active enforcement lasted only about 3 years; thereafter, State and local governments were given a relatively free hand in reinstituting the disfranchisement of the freedmen. When Congress repealed the Enforcement Act in 1894, it was doing little more than dropping from the books a law which had long since ceased to have any impact. From this post-Reconstruction era, disfranchisement in the former States of the Confederacy went largely unchecked until the late 1950's. By 1956 the voter registration rate for eligible blacks did not exceed 31 percent in any of the Southern States presently covered by the Voting Rights Act. In Mississippi only 5 percent of the eligible blacks were registered; in Alabama only 11 percent; in Virginia, 19 percent. Then Congress, no longer able to countenance the mounting evidence of discrimination in voting, passed the Civil Rights Act of 1957. This act, and its successors in 1960 and 1964, however, proved ineffective in dealing with the problem in a manner befitting its scale. For these Civil Rights Acts left the Attorney General with the burden of litigating discrimination in voting on a case-by-case basis. This burden was too great to meet the challenge of routing discrimination so deeply rooted in the social and political structure. It was not for lack of energy and dedication on the part of the Department of Justice that the remedies in these Civil Rights Acts failed. A total of 71 voting cases were filed. But such a case-by-case approach was, and remains, simply inadequate to protect the right to vote. Between 1956 and 1964 there was only a negligible increase in the numbers of blacks registered to vote. In Alabama, for example, black registration increased from 11 to 19.3 percent of the eligible population. In Mississippi, black registration increased even more slowly, from 5 percent of the blacks of voting age in 1956 to only 6.7 percent 8 years later. The Voting Rights Act of 1965 is the most successful piece of civil rights legislation ever enacted. Since the act was passed, the number of black registered voters has nearly doubled, the number of black elected officials has increased almost tenfold, and the participation of blacks in the election process in the seven Southern States covered has become a fact of life. Nevertheless, we must recognize that these gains, although significant, are only a beginning and only very recent in our history. If we fail to extend the powerful protection guaranteed by the Voting Rights Act, we will endanger the fragile but growing participation by blacks in the election process. Such failure to extend the act would severely diminish the prospects for the full enjoyment of the right to vote. În order to understand this point, I will discuss the several aspects of the Voting Rights Act, their impact, and the need for extension. The Voting Rights Act was originally designed to eliminate two of the principal means of frustrating the 15th amendment rights guaranteed to all citizens: the use of onerous, vague, and unfair tests and devices enacted for the purpose of disfranchising blacks; and the discriminatory administration of these and other kinds of registration devices. The Voting Rights Act attemped to eliminate these racial barriers, first by suspending all tests and devices in the covered States, and second, by providing for voter registration in those States by Federal officials where necessary to insure the fair administration of the registration system. The success of these provisions is manifest in statistics comparing the black registration rates before 1965 with more recent ones. Over 1 million new black voters were registered in the seven covered Southern States between 1964 and 1972. This figure represents an increase in registration from 29 percent to over 56 percent of the blacks of voting age. And there is evidence based on recent registration statistics provided from three States that the trend of increasing black registration. has continued since 1972. The perception that there is such a thing as a qualified voter who must pass certain tests before voting runs counter to the theory of government in a democracy. Political power in a representative government should be distributed equally throughout society, not reserved for a certain group meeting certain qualifications. In a true democracy, citizens must think very closely before restricting the franchise in any way. The litigation history prior to the Voting Rights Act demonstrated, however, that the use of tests and devices, including the usual literacy and interpretation tests, had often been used to thwart attempts by blacks to register. Indeed, such tests were often enacted for the express purpose of limiting the franchise to whites. These tests are easily susceptible to manipulation by a local registrar. Most often these tests were administered with two different standards, one for white applicants and one for black applicants. The discretion granted a registrar in such situations allowed him to prevent even blacks with advanced degrees from registering by asking them to interpret arcane articles of a State constitution or to spell and define words difficult for any individual. Such was the case, for example, in 1964 in Selma, Ala., where the local registrar rejected the registration applications of numerous individuals with college degrees. Thus, as noted, the ban on tests and devices became one of the central tenets of the Voting Rights Act. In the 1970 amendments to the act, section 201 expanded the suspension of such tests and devices to the entire Nation. I believe that this expansion was an improvement over the existing law. The Voting Rights Act can be further strengthened by enacting a permanent ban on these tests as a prerequisite to voting. The idea for a permanent nationwide ban on literacy tests is not a new one. As early as 1961 the U.S. Commission on Civil Rights recommended such a ban. Again, in 1963, a special President's Commission on Registration and Voting Participation also recommended a permanent ban. In 1970, when Congress finally acted on these and other recommendations with a temporary nationwide ban, there were only 20 States with statutes requiring literacy as a prerequisite to voting. Now 5 years after that action 6 of the 20 States have repealed those laws, confirming the national rejection of the outdated notion that only a literate individual can cast a ballot intelligently. The proliferation of nonprint media gives any voter the means to make a qualified judgment. Indeed, the lack of any evidence that the quality of elected officials in the 14 remaining States with literacy tests was any higher than in other States leads me to conclude that these tests do not serve any purpose. One factor gives special urgency to this appeal to ban these tests or devices. Of the 14 remaining States with laws prescribing literacy tests, six are a part of the old Confederacy. Each Southern State with a literacy test has yet to repeal its statute authorizing such a test. If Congress does not act on this issue, it may once again be necessary for a potential registrant in six of the seven Southern States covered by the Voting Rights Act to read, write and in some cases to interpret any section of that State's or the U.S. Constitution. That would reopen the registration process to the potential for the very disfranchising of black voters which the Voting Rights Act and the 15th amendment were originally enacted to prohibit. Under section 6 of the Voting Rights Act, the Attorney General is authorized to appoint Federal examiners or observers where necessary to enforce the guarantees of the 15th amendment. Although this remedy seemed radical at the time it was proposed, it was remarkably similar in both its intent and design to provisions in the Enforcement Act of 1870, which also authorized the appointment of Federal officials to oversee election practices. These so-called drastic provisions for Federal observers and examiners, although perhaps underutilized, have shown themselves to be warranted. Section 6 was used most actively during the first 4 years of the act. Since the act made this remedy available, Federal examiners have registered over 160,000 individuals, over 95 percent of whom were registered during those first 4 years. Even though only 19 percent of the total increase in black registration in the past decade can be directly attributed to the efforts of Federal examiners, it is doubtful that the dramatic increase in registration would have been possible without the seed efforts of Federal examiners. Despite the little use that this provision has had in the last 5 years, it is impossible to dismiss the deterrent effect of this provision on potential local registrar discrimination. For local registrars, knowing that Federal examiners can be designated, have incentive to work to achieve proper fairness in the registration process. Section 5 requires that political subdivisions within the covered area submit any proposed change in standard, practice, or procedure with respect to voting to the U.S. District Court for the District of Columbia for declaratory judgment or to the Attorney General for his approval prior to implementation. For all but a few of the election law changes in the past 10 years, jurisdictions subject to the Voting Rights Act have made use of the alternative of Attorney General review. Under this administrative procedure, the Attorney General has 60 days to review a submission to determine that the submission has no discriminatory purpose and will have no discriminatory effect. If he finds evidence of discriminatory purpose or effect, he writes a letter of objection which prevents that jurisdiction from implementing the change. When we drafted this legislation, we recognized that increased black voting strength might encourage a shift in the tactics of discrimination. Once significant numbers of blacks could vote, communities could still throw up obstacles to discourage those voters or make it difficult for a black to win elective office. The record of section 5 supports our earlier thinking. In that section's 10-year history, the Department of Justice has written over 160 letters objecting to more than 200 election law changes that would have denied blacks an equal opportunity to have their votes count. And the importance of section 5 has not abated in recent years; if anything, it has become more timely. Within the last year alone, the Department of Justice wrote 30 objection letters. Lawsuits could not possibly have handled this problem. Our experience in Dallas County, Ala., which I described at length in the 1965 hearings on the Voting Rights Act, is an example. After 4 years of litigation by the Department of Justice, from 1960 to 1964, the number of blacks registered to vote rose from 156 to 383, or from 1 to 2 percent of the black population of voting age. The Supreme Court in the constitutional test case for the Voting Rights Act elaborated on the problem of lawsuits to counter discrimination in the voting process: Voting suits are unusually onerous to prepare, sometimes requiring as many as 6000 man-hours spent combing through registration records in preparation for the trial. Litigation has been exceedingly slow, in part because of the ample opportunities for delay afforded voting officials and others involved in the proceedings. Even when favorable decisions have finally been obtained, some of the states affected have merely switched to discriminatory devices not covered by the Federal decrees. |