Texas Law Review Volume 86, Number 4, March 2008
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Texas Law Review Volume 86, Number 4, March 2008 Articles The Strange, Ironic Career of Section 5 of the Voting Rights Act, 1965–2007 J. Morgan Kousser* I. The Tangled History of the Voting Rights Act................................... 670 A. Latest Twists ................................................................................... 670 B. The Perils of Oversimplified, Partial Histories of Section 5........... 672 II. Strange and Ironic: C. Vann Woodward’s View of Race Relations and Southern History................................................................................. 674 III. The Institutionalization of a Flexible Provision: From Selma to Mobile, 1965–1980 .......................................................................................... 678 A. Proxy Disfranchisement and the Evolution of Reform................... 678 B. Centralized Efficiency?................................................................... 681 C. Extension in Scope and Time.......................................................... 685 D. From Indianapolis to New Orleans, via Dallas and San Antonio, with a Retrogression to Cincinnati.......................................................... 689 E. Retreat to Mobile, in Confusion...................................................... 697 F. Washington Outlook: Overcast....................................................... 703 IV. Rebirth ................................................................................................ 704 A. Renewal .......................................................................................... 704 B. Reruns ............................................................................................. 713 C. Redefinition..................................................................................... 718 D. Reward ............................................................................................ 721 V. Redemption......................................................................................... 724 A. The Creation of an Era.................................................................... 724 B. Reaction .......................................................................................... 725 * Professor of History and Social Science, California Institute of Technology. A student of the late C. Vann Woodward, Dr. Kousser has served as an expert witness or consultant in thirty-two voting rights cases. I thank Peyton McCrary, Rick Pildes, Mike Pitts, and Mark Posner for suggesting important changes in this Article, as well as for saving me from many errors of fact and interpretation, and I absolve them of any responsibility for the flaws that remain. 668 Texas Law Review [Vol. 86:667 C. Double, Shifting Standards ............................................................. 726 D. Retrogression to Retrogression ....................................................... 732 E. O’Connor’s Influence ..................................................................... 737 VI. Caution and Duplicity: The 2006 Renewal of the Voting Rights Act .. 743 A. Ironies of Evidence ......................................................................... 743 B. The Politics of Renewal .................................................................. 751 C. Defeat in Victory?........................................................................... 760 VII. Section 5 in Peril: The NAMUDNO Case........................................... 763 A. Miss Under Standing?..................................................................... 763 B. Moving the Policy Arguments to the Courts .................................. 765 C. If NAMUDNO Wins: The Frederick Douglass, Thaddeus Stevens, and Charles Sumner VRA Revival Act of 2009 ............................. 769 VIII. “History Can Move Backward”.......................................................... 774 2008] The Strange, Ironic Career of Section 5 669 Strange events and ironic conjunctions pervade the narrative of the renewal of provisions of the Voting Rights Act 2005–2006. Never has the radical, still-controversial Act been treated in such hushed, reverential tones, and never has its discussion been so blatantly manipulated for immediate parti- san advantage. Never have there been so many proposals for comprehensive changes when the temporary parts of the Act have come up for renewal, and never has there been less serious debate about the Act in committees and on the floor of Congress. Never has support for the Act in Congress and the country seemed so universal, and never has its constitutional future before the Supreme Court seemed so tenuous. This Article shows that the strange, ironic nature of the recent consideration of the Voting Rights Act is not unusual, but rather that it is typical of the history of the most controversial provision of the Act, Section 5, which requires that all changes in election laws in “covered jurisdictions,” chiefly in the Deep South, be submitted to the Justice Department or the District of Columbia District Court for “preclearance” before they are allowed to go into effect. In its early years, Section 5 was largely ignored by state and local governments, and the Justice Department was too disorganized to police it, anyway. After receiving a judicial blessing from the Supreme Court, Section 5 was for the first time vigorously enforced by the Nixon Administration, which had opposed its effective continuation, and the Carter Administration, the first administration headed by a president from the Deep South since before the Civil War. Two Supreme Court decisions in 1976 and 1980 that threatened to sap the Act’s vigor instead stimulated civil rights activists to mount a campaign for amendments that overwhelmed the Reagan Administration and led to the largest increase in minority elected officials since the first years of the post-Civil War Reconstruction. But no sooner had the promise of the Act finally been fulfilled than the Supreme Court—through strained interpretations of the Act’s intentions and, even more ironically, through the use of the Fourteenth and Fifteenth Amendments to hamper, instead of to protect, minority political rights—stripped the Act of much of its power. By 2006, the Act’s iconic status insured its persistence, but the fears of its staunchest proponents and the barely hidden antipathy of many members of the dominant political party prevented amend- ments that might have increased its chances to pass muster with the Roberts Court. Eight days after President George W. Bush signed the law, Gregory Coleman, a Texas lawyer with strong ties to the Republican Party, filed a serious challenge to the constitutionality of Section 5. The strange career continues. Analyzing the complete history of Section 5 and emphasizing the story’s ironic elements and shifting course yield lessons that may be useful in the con- tinuing struggle to protect the political rights of minorities. 670 Texas Law Review [Vol. 86:667 I. The Tangled History of the Voting Rights Act A. Latest Twists On July 20, 2006, only one day after the Senate Judiciary Committee reported a bill reauthorizing key provisions of what conservative columnist George Will called “the 20th century’s noblest and most transformative law,”1 the U.S. Senate briefly debated and unanimously passed the Voting Rights Act Reauthorization and Amendments Act (VRARA).2 The apparent impetus for the unusual haste3 by “the world’s greatest deliberative body,”4 was the fact that President George W. Bush wished to cite the imminent pas- sage of the Act as evidence of racial progress under his Administration in a speech, arranged at the last minute,5 marking his first appearance as president before a convention of the National Association for the Advancement of Colored People (NAACP).6 But the curtailment of even the appearance of deliberation7 in order to serve the most immediate of political purposes was not the only odd aspect of the 2005–2006 renewal saga. Despite overwhelming support for the Voting Rights Act (VRA) in Congress and civil society—support that made it inevi- table that even the Republican-controlled government would extend the life of the provisions at issue,8 chiefly Sections 5 and 2039—proponents of 1. George F. Will, VRA, All of It, Forever?, NEWSWEEK, Oct. 10, 2005, at 70, 70. Topping Will, Representative Steve Chabot of Ohio, the Chairman of the House Judiciary Committee’s Subcommittee on the Constitution, which oversaw the House hearings on the Voting Rights Act in 2005, termed the Act “perhaps the most significant piece of legislation ever passed.” Christy Arnold, Voting Rights Act to Get Review, CINCINNATI ENQUIRER, Oct. 17, 2005, available at http://news.enquirer.com/apps/pbcs.dll/article?AID=/20051017/NEWS01/510170354/1077. 2. Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, Pub. L. No. 109-246, 120 Stat. 577 (to be codified at 42 U.S.C. §§ 1971, 1973); S. REP. NO. 109-295, at 54 (2006); Charles Babington, Voting Rights Act Extension Passes in Senate, 98 to 0, WASH. POST, July 21, 2006, at A1. 3. In 1965, the Senate passed the VRA forty-six days after the Judiciary Committee reported it. Voting Rights Act of 1965, 21 CONG. Q. ALMANAC 533, 544–45 (1965). In 1982, the time between reporting and passage in the Senate was forty-five days. Voting Rights Act Extended, Strengthened, 38 CONG. Q. ALMANAC 373, 376 (1982). 4. The phrase is ubiquitous; its origins, murky. See, e.g., DONALD R. MATTHEWS, U.S. SENATORS AND