FUENTES DE INFORMACIÓN

37 _{Lublin states, “forty-five seats is equivalent to 3.7 percent of the seats in the ten southern states included} in the analysis—not a bad gain for the Republicans at the state [lower legislative chamber] level from racial redistricting” (2004, 112).

38

Lublin states, “South Carolina Democrats might have controlled the state House throughout the 1990s if racial redistricting had not forced them to cede control of the chamber to the GOP in 1992” (2004, 112).He also notes that North Carolina’s Democrats would have probably regained control of the state House in 1996, instead of 1998, if racial redistricting had not happen (ibid).

34

This chapter has examined the perverse effects thesis and the literature that addresses the thesis. A number of new majority-African American districts were created, after which the number of African Americans and Republicans serving in both Congress and in southern state legislatures increased. Chapter 3 examines why and how majority- African American districts were created. The Voting Rights Act was instrumental in the creation of these districts, in particular sections 2 and 5 of the Act. The next chapter examines the evolution of these two provisions.

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CHAPTER 3: “IF YOU CAN, YOU MUST”: SECTIONS 2 AND 5 OF THE VOTING RIGHTS ACT

The Voting Rights Act (VRA) has been described as the “most extensive federal voting rights legislation in American history” (Cotrell 1986, 7). It is the result of the Civil Rights Movement and acts of violence and terror against civil rights advocates in many southern towns, such as Selma, Alabama. These acts of terror and violence forced Congress and President Lyndon Johnson to adopt the VRA.39 It contained special

provisions such as the nationwide suspension of the use of literacy tests and other similar devices that prohibited African Americans from voting.40 It also provided for federal examiners to protect registered voters41 in six southern states: Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia, and also a large portion (40 counties) of North Carolina.42

39

Charles Cotrell states, “the enactment of the Voting Rights Act represented an important change in the relationship of the federal government to the states with regard to the establishment of voter qualifications and the conduct of federal, state, and local elections” (1986, 5).

40

The literacy tests and other similar devices used to disfranchise African Americans initially were suspended for five years. In 1970, the Act was amended and these tests and devices were suspended for another five years. In 1975, it was amended again, making this nation-wide prohibition permanent. [42 U.S.C.A. § 1973b (a) § 1973aa (Sup., Oct. 1975) amending 42 U.S.C. § 1973b (a) and § 1973aa (1970)]. A prohibited test or devices is:

Any requirement that a person as a prerequisite for voting or registration for voting, (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class 42 U.S.C. § 1973b(c) and § 1973aa (b) (1970).

41

42 U.S. C. § 1973d (1970). 42

These states were not the only political jurisdictions to which the special provisions were applicable, as reported in Engstrom (1978, 139-140):

The initial “trigger” mechanism, 42 U.S.C. § 1973b(b), covered any state or political subdivision that maintained on November 1, 1964, a “test or device” as a prerequisite to registration or voting and in which less than fifty percent of its voting age population was registered to vote on November 1, 1964 or voted in the 1964 presidential elections. In 1970 this was amended to include states and political subdivisions that met these conditions on November 1, 1968 and in the 1968 presidential election as well. While some political subdivisions outside the South were covered by the trigger, the formula clearly was intended to apply

36

The VRA quickly helped to increase the number of African Americans registered to vote in the covered states, but many of these states began to adopt election systems that would prevent African Americans from electing representatives of their choice. Once the VRA was enacted, many public officials, particularly in southern states, changed their tactics from those that denied African Americans access to the ballot box to those that diluted their vote (Clayton 2001, 38). Vote dilution, according to Engstrom, is the “…practice of reducing the potential effectiveness of the new black voting strength through such devices as gerrymanders, at-large elections, and annexations” (1978, 140). The VRA ultimately shifted the focus from vote denial to vote dilution.43 Handley states that minority vote dilution can occur in a variety of ways, most notably through the process of stacking, cracking, and packing voting districts (1991, n.p.).44

to the South. In 1975 the coverage conditions were again amended, extending them to November 1, 1972 and the 1972 presidential election, and expanding the trigger to include for the first time “language minorities” as well as racial minorities by covering states and political subdivisions when more than five percent of the voting age population are members of a “single language minority” and in which elections are conducted in English only.” See 42 U.S.C. § 1973(b) and b(f) (3) (Supp., Oct, 1975).

The trigger remained the same in both the 1982 and 2006 reauthorizations of the Act (http://thomas.loc.gov/cgi- bin/query/D?c109:5:./temp/~c109hyUSrI:).

43

Civil Rights attorney Armand Derfner states, “instead of preventing blacks from registering, the focus of discrimination shifted to preventing blacks from using their eligibility to gain any significant political power” (1973, 523). In short, the shift went from preventing African Americans from voting to preventing them from winning or deciding elections.

44

Dewey Clayton states:

stacking occurs when heavily concentrated minority districts or concentrations of minority populations, large enough for separate representation, are combined with majority districts or population concentrations. Cracking occurs when a substantial minority population, large enough to constitute one or more majority-minority districts, is divided among several majority districts, which effectively dilutes minority voting strength. Packing is the practice of drawing district lines so as to create districts that are 70, 80, 90 percent minority. This procedure wastes minority votes that could have either created another minority district or strongly influenced a majority district (2000, 38).

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Sections 2 and 5 of the VRA have been used to challenge claims of vote dilution.45 Both sections have been identified as playing a vital role in the creation of majority-African American districts. These districts were crucial in providing African Americans with opportunities to elect candidates of their choice.

These two provisions have been amended and rewritten by Congress and redefined by the Supreme Court since they were originally adopted. The evolution of these sections has affected the longevity of majority-African American districts and the ability of African Americans to elect representatives of their choice. This chapter reviews sections 2 and 5 of the VRA and it is divided into four stages. The first part reviews section 5. The evolution of section 2 is reviewed next. This part includes a discussion of how sections 2 and 5 became intertwined, and the next part discusses how these sections were separated. It also includes a discussion on how judicial precedents have weakened sections 2 and 5 of the VRA and have impeded African Americans from electing representatives of their choice. The final part reviews the Voting Rights Act Reauthorization, which renewed the VRA for another twenty-five years. It also restored elements of section 5 which were weakened by the Supreme Court after the 2000 census.