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Jenigh J. Garrett

Jenigh J. Garrett, the Continued Need for the Voting Rights Act: Examining Second-generation Discrimination, 30 Saint Louis University Public Law Review 77-96, 81 (2010) (Complete Article)


Section 5 applies to both first and second-generation barriers. First-generation barriers are discriminatory stratagems that result in the wholesale exclusion of minorities from the political process.  Second-generation barriers, on the other hand, allow formal access to the franchise but dilute minority voting strength by limiting the effect that minority votes could have on the political process.  Second-generation discriminatory barriers are often more sophisticated than the facially discriminatory mechanisms that preceded them.  Nonetheless, the minority voting experience in covered jurisdictions *81 shows how both the wholesale exclusion of voters and second-generation barriers achieve the same discriminatory result.

A. Second Generation Barriers Prevent Minorities from Electing Their Candidates of Choice

Secondary barriers are discriminatory because minorities are unable to recognize their voting strength even though they are allowed formal access to the political process.  What constitutes a second-generation barrier is broad *82 and includes straightforward barriers, like moving a polling place,  to the complex manipulation of district lines. Whether straightforward or complex, however, second-generation barriers can “render the abstract right to vote meaningless” because the elective structure that should allow for fair participation in the political process prevents it.

During previous reauthorizations, Congress received evidence and testimony revealing that both blatant and subtly effective discriminatory mechanisms impacted the minority voting experience in covered jurisdictions. Changes impacting the adoption or application of aggregate voting structures, for instance, became one of the most frequently used second-generation responses to the requirements of the Voting Rights Act.  Aggregate voting structures allow populations to collectively exercise their political power and determine the outcome of an election.  Several second-generation barriers, however, serve to limit the collective impact of the choices minority voters make at the voting booth when aggregating their votes. These barriers include the creation of discriminatory electoral districts,  adopting a majority vote requirement when elections are held at-large,  annexations,  and anti-single shot voting laws.

*83 The record evidence of both the use and impact of second-generation barriers during the 25 years since the 1982 reauthorization led Congress to conclude that racial discrimination in voting continued to prevent the equal participation of minorities in the political process in covered jurisdictions.  Moreover, the testimony and evidence during the 2006 reauthorization revealed that minorities in covered jurisdictions were subject to second-generation electoral structures that enhanced discrimination against minority voters at a higher rate than voters in non-covered jurisdictions.

B. The NW. Austin Mun. Util. Dist. No. One v. Holder (NAMUDNO), 129 S. Ct. 2504  (2009)
 Dissent Failed to Recognize Second-Generation Barriers and How They Obstruct Democracy

The dissenting opinion in NAMUDNO argued that the evidence of second-generation discrimination in the 2006 congressional record was insufficient to support the reauthorization of Section 5. According to the dissent, the days of grandfather clauses, discriminatory tests, and systematic campaigns to disfranchise Blacks “are gone.”  Covered jurisdictions, the dissent continued, do not make a “concerted effort” to defy the Constitution in an “unremitting and ingenious” manner.  As a result, Section 5 is nothing more than “[p]unishment for long past sins . . . [with no] legitimate basis for imposing a forward-looking preventative measure that has already served its purpose.”

The dissent attacked second-generation barriers directly and argued that evidence of “‘second-generation barriers constructed to prevent minority *84 voters from fully participating in the electoral process . . . [was] not probative of the type of purposeful discrimination that prompted Congress to enact 5 in 1965 . . . [,] and is not a problem unique to the South.”

Of importance is how the dissent redefines second-generation barriers as racially polarized voting, Section 5 enforcement actions (which are filed when covered jurisdictions fail to submit a voting change for preclearance), federal examiner and observer coverage, and lawsuits filed under  2 and 4 of the Voting Rights Act.  The dissent goes on to state that “such evidence bears no resemblance to the record initially supporting Section 5, and is insufficient to sustain such an extraordinary remedy. In sum, evidence of second-generation barriers cannot compare to the prevalent and pervasive voting discrimination of the 1960s.”

This characterization of the congressional records in support of the enactment and reauthorizations of the Voting Rights Act, however, does not reflect the history of the Voting Rights Act.  Covered jurisdictions responded to the enactment of the Voting Rights Act of 1965 by implementing second-generation barriers to voting.  While Congress anticipated the use of new measures to curtail minority voting strength after covered jurisdictions were required to register voters under federal law, the frequent use of second-generation discriminatory barriers led to numerous cases and significant testimony before Congress of their impact.  Second-generation barriers were, and continue to be, a direct reaction to the promise of the Voting Rights Act.

*85 IV. The Continued Need for Section 5: Examining Continued Second-Generation Discrimination

The 2006 Voting Rights Act reauthorization revealed that the work of eliminating discrimination in voting remains undone. This section reviews the details of how actions in covered jurisdictions were discriminatory and how, over the course of three reauthorizations, second-generation discriminatory barriers were consistently used to prevent an equal opportunity for minorities to participate in the political process.

A. Discriminatory Responses to Minority Voting Strength

When population or registration increases or decreases threaten the racial composition of a governmental or political unit, voting changes can be designed to limit and control the political impact of those changes in a discriminatory manner. During the previous reauthorizations, Congress learned that covered jurisdictions reacted to the registration of Black voters and the impact of their voting strength by enacting second-generation discriminatory barriers. When Congress revisited conduct in covered jurisdictions in 2006, the evidence and testimony in support of reauthorization showed that such discriminatory changes persisted in covered jurisdictions. This section provides a sample of the record evidence of second-generation barriers amassed during the 1970, 1975, 1982, and 2006 reauthorizations of Section 5 and highlights how evidence of modified and familiar second-generation stratagems were boldly implemented and/or repeated.

*86 1. Annexations and Cancelled Elections

The annexation process is one type of second-generation barrier repeatedly used to discriminate against minority voters. During previous reauthorizations, Congress learned that covered jurisdictions would circumvent adjacent concentrated minority populations in favor of adjacent concentrated White populations when annexing areas.  The selective annexation process would impact minority voters on the verge of exercising their political strength because White voters would not support the same candidate of choice as Black voters.

Lake Providence, Louisiana, for example, was “substantially evenly divided” along racial lines and elected its governing body at-large in 1972.  The Town received annexation requests from two adjacent areas to the town at the same time, one with a predominately Black population and one with a predominately White population.  The town annexed the White area but rejected the request from the Black area.  Rejecting the annexation request from the Black population had the effect of creating a White majority, which could control the outcome of the at-large elections.  The Attorney General objected to the change under Section 5 of the Voting Rights Act.

Another example comes from the Town of McClellanville, South Carolina in 1974. There, town officials told Black residents who resided in a concentrated area adjacent to the town that any formal request for annexation would be rejected because it would dramatically alter the race of the town.  When the request for Section 5 preclearance was submitted to the Attorney *87 General, the town erroneously represented that the adjacent Black population did not prefer annexation.  When the Attorney General learned of the false statements in the submission he found that the town denied annexation for a racial purpose and objected to the change under Section 5 of the Voting Rights Act.

During the 2006 reauthorization Congress learned that these types of discriminatory annexation processes continued in covered jurisdictions.  Grenada, Mississippi, for instance, drew an objection when it cancelled its election and carried out a racially selective annexation policy with the “purpose to maintain and strengthen White control of a City on the verge of becoming majority Black.”  Similarly, Augusta, Georgia drew an objection to its “annexation policy center[ed] on a racial quota system.”  Annexations to the city required corresponding numbers of Black and White populations to “avoid increasing the city's Black population percentage.”  Augusta even went so far as to conduct door-to-door surveys to identify White residential areas for annexation.

2. The Abandonment of Electoral Structures that Provide Opportunities to Elect Candidates of Choice

Another way covered jurisdictions responded to foreseeable increases in the electoral strength of minority populations was to abandon plans that offered more opportunities for minority populations to elect candidates of choice. In many cases, single-member districts provide one way for minorities to elect candidates of choice. Changes from single-member districts to at-large or multi-member districts, which can be designed to eliminate opportunities to elect candidates of choice, were common in the first few years following passage of the Act.  In 2006, Congress learned that such activity continued.

*88 Pointe Coupee Parish, Louisiana, for instance, had ten police jury wards with a Black majority population in six of the wards.  When Blacks were able to elect candidates of choice, the ten-ward system created a Black majority on the police jury.  The Parish proposed eliminating one of the single-member wards by combining it with two other wards.  The resulting multi-member district, however, did not give minorities an equal opportunity to elect candidates of choice and would eliminate the Black majority on the police jury.  The Attorney General objected under Section 5 of the Act.

During the 2006 reauthorization Congress learned that the abandonment of fairer electoral structures for discriminatory electoral structures also continued. The City of Freeport, Texas, for instance, proposed the abandonment of single-member districts once “Latinos were able to elect candidates of choice” under a single-member plan.  The Attorney General objected under Section 5.

The testimony and evidence in support of reauthorization showed that even when covered jurisdictions adopted fairer electoral structures only after litigation, they would seek to abandon the electoral structure that provided an opportunity to elect. The Haskell Consolidated Independent School District, for instance, sought to revert to at-large elections after Section 2 litigation required single-member districts.  The Attorney General objected to the change and explained that the race-neutral reason proffered by the district for the change was pretextual.

*89 And some covered jurisdictions simply refused to adopt fairer electoral structures outright. This occurred in Cleveland, Mississippi, where the school district delayed the adoption of single-member districts and cancelled its 1989 school board election when a state law required the adoption of single member districts.  When the Cleveland School District finally submitted a single-member redistricting plan that created five citywide districts, the Attorney General precleared the change with the understanding that a special election would be scheduled in November 1990 under the single-member plan.

Six months later the school district proposed the abandonment of its redistricting plan and the suspension of the November 1990 election until the 1990 Census results were available.  When the Attorney General objected to these new changes the school district attempted to circumvent the objection by obtaining a state court order authorizing both the abandonment of the single-member plan and canceling of the November 1990 school board elections.  The school district then asked the Attorney General to reconsider and withdraw its objection in light of the state court opinion.  Instead, the Attorney General authorized the filing of a lawsuit to enforce Section 5 and hold a special election for school board trustees because the school district chose to obtain a state court order, allegedly authorizing the abandonment of the plan, instead of implementing the new election method required under state law and precleared under Section 5 of the Voting Rights Act.

3. Discriminatory Redistricting Plans

The number of redistricting plans designed to prevent minorities from exercising their voting strength is significant.  The following examples merely provide some of the details concerning the nature of discrimination when redistricting, another second-generation barrier that manipulates the voting strength of minority voting populations, occurs in covered jurisdictions.

*90 a. Statewide Legislative Plans

Over the course of previous reauthorizations Congress reviewed several incidents of discrimination through redistricting, another second-generation barrier. In some instances discriminatory statewide plans were repeatedly adopted by state legislatures. The redistricting experience in Alabama provides such an example. Over the course of previous reauthorizations the evidence and testimony before Congress revealed that the Alabama legislature failed to redistrict without discrimination after the 1970 Census despite a court order.  When a federal court was required to intervene, the state submitted three plans but all of them had population deviations above 24 percent and employed multi-member districts.  The District Court rejected the proposed plans and created a plan with single-member districts.

In 1980, Alabama had the second opportunity to draw its districts without discrimination. The redistricting plan created by the legislature, however, reduced the Black population in ten urban districts and eliminated four Black majority districts in rural counties, which significantly altered minority voting strength.  The Attorney General found that the actions of the state legislature were unnecessary to satisfy “any legitimate governmental interest.”  The Attorney General objected to the 1980 redistricting plan.

In 1990, the Alabama legislature had the opportunity to draw its congressional districts without discrimination. Nonetheless, when the state submitted its congressional redistricting plan for preclearance, the Attorney General had reason to believe that the plan was created with the “predisposition on the part of the state political leadership to limit Black voting potential to a single district.”  As a result, the Attorney General objected to the 1990 congressional redistricting plan.

Over the course of several reauthorizations, the evidence and testimony before Congress showed that Alabama did not stand alone in creating statewide redistricting plans that discriminated against minorities.

*91 b. Local Redistricting Plans

Local governments did not fare much better than states when creating redistricting plans over the course of Voting Rights Act coverage. Less than ten years after the Voting Rights Act was enacted, the redistricting plan for the City of Many, Louisiana packed the Black population into a single majority-minority district with a 100 percent Black population.  The remaining Black population was divided among several districts so they were unable to elect a candidate of choice.  Both cracking--the process of fracturing minorities across several districts--and packing--the process of concentrating minorities in a single district--are second-generation barriers.  The Attorney General interposed an objection and the City of Many had to create a new redistricting plan.

In 2006, the evidence and testimony before Congress revealed that local covered jurisdictions continued to redistrict in a discriminatory manner. The City of McDonough, for instance, submitted a redistricting plan that impermissibly packed Black voters, who constituted over 70 percent of the population in an otherwise compact geographic area, into a single district.  The City then divided the rest of the Black population between two districts in a way that prevented their opportunity to elect a candidate of choice.  The *92 Attorney General objected and determined that the 1982 redistricting plan “appeared calculated to carve up the city's Black voting strength among several districts in an unnatural and wholly unnecessary way.”  When the city resubmitted its plan it retained the fragmentation identified in the 1982 plan and eliminated the one district that provided an opportunity to elect.  The Attorney General determined that the second plan, like the first, was drafted without a nonracial justification “for so facially suspect a redistricting.”

c. Repeated Adoption of Discriminatory Measures

Finally, some covered jurisdictions repeatedly adopted discriminatory structures to control the governance of certain bodies by non-minorities. Sumter County, South Carolina provides just one example of how some covered jurisdictions repeatedly enacted a variety of discriminatory second-generation barriers.

Until 1967 South Carolina's governor would appoint members to the Sumter County Council based on the legislative delegation's recommendation.  After litigation required that the State create a redistricting plan which would create opportunities for a Black state senator to control recommendations for gubernatorial appointments to the Sumter County governing body, the state legislature created a seven-member Sumter County Council to be elected at large.  Sumter County held five elections under this new, unprecleared system before submitting it for preclearance in 1976.  In 1984, a court found the at-large method of election to the Sumter County Council violated Section 5.  For about 15 years, elections to the Sumter County Council proceeded without objection, but in 1992 Sumter County enacted a redistricting plan drawn with the purpose of eliminating one of the four majority-Black districts on the seven-member council.  The Attorney General interposed another objection.

The Sumter County Council, however, was not the only governing body in the Sumter area impacted by discriminatory voting changes.  The City of *93 Sumter (which lies in Sumter County) proposed 57 annexations, 45 of which drew objections from the Attorney General.  The Attorney General noted that, despite the city's large Black population, no Black had been elected to city council in recent times because of racially polarized voting and the city's at-large election system.  The proposed annexations “seem[ed] calculated to take in only Whites while excluding predominately Black areas,” and “enhance[d] the ability of the White majority to exclude Blacks totally from participation in the governing of the city [.]”

B. The Continuous Nature of Voting Discrimination Through Second-Generation Barriers

Without a doubt, the immediate response to the requirements of the Voting Rights Act, which required the registration of minority voters after nearly 100 years of disfranchisement, was the enactment of second-generation barriers.  Although registration rates increased after the enactment of the Voting Rights Act and overt acts of violence do not occur as frequently as they did in 1965, traditional and new responses to minority voting strength--second-generation barriers--continue to be used to prevent the full participation of minority voters.  Moreover, the record before Congress in 2006 showed that second-generation barriers continue to be used with the intent to discriminate.

*94 The actual record of second-generation discrimination in the 2006 record of reauthorization, therefore, is much different than the characterization of the record by the dissent in NAMUDNO. The dissent's failure to acknowledge the existence of the extensive second-generation barriers in the record, and the use of such barriers since 1965, belies the argument that second-generation barriers are “not probative of the type of purposeful discrimination that prompted Congress to enact Section 5.”  To the contrary, Congress anticipated second-generation barriers-- although it could not contemplate every form--when it created the Voting Rights Act, which covered all voting changes.

Arguments that attempt to draw a bright-line between first- and second-generation discriminatory voting barriers move us further away from eliminating discrimination in voting because they ignore the existence of otherwise discriminatory acts. This was not the intent of Congress in passing the Voting Rights Act and it is far from the requirements of the Reconstruction Amendments.  Persistent discrimination, like the repetitive use of second-generation barriers in covered jurisdictions, harms both the experience of minorities in the political process and democracy in general.

Assistant Counsel, NAACP Legal Defense and Educational Fund, Inc. (“LDF”).