Correspondence from Karlan to Blacksher; Draft Brief Re Discriminatory Electoral Systems

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NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 
efense und 99Hudson Street, New York, N.Y. 10013 ® (212) 219-1900 

  

egal 

February 18, 1987 

James U. Blacksher, Esq. 
Blacksher, Menefee & Stein 

405 Van Antwerp Building 
Dauphin & Royal Streets 
Mobile, AL 36633 

Dear Jim: 

Here is my gloss on the sentence in the draft brief 

regarding the states' affirmative responsibility to dismantle 

discriminatory electoral systems. 

Lani will be out of town for the next week. I have a trial 

starting Monday in a Title VII consent decree case and I have 

some discovery still to do at the Administrator's office, but I 

hope to be in the office here late on Friday. I shall call you 

tomorrow to see if we can work out a conference call time. 

Sincerely, 

CU ~— 
Pamela S. Karlan 

cc: Lani Guinier 
Ed Still 
Larry Menefee 

Contributions are deductible for U.S. income tax purposes 

The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part of the National Association for the Advancement of Colored People (NAACP) although 
LDF was founded by the NAACP and shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget. 

 



  

The State Is Ultimately Responsible for Remedying 
the Continuing Effects in Each of its Subdivisions 

of Laws That Violate the Voting Rights Act 

  

  

  

The Voting Rights Act was intended to remedy a "century of 

obstruction" and "to counter the perpetuation of 95 years of 

pervasive voting discrimination," City of Rome v. United States, 
  

446 U.S. 156, 182 (1980), by "creat[ing] a set of mechanisms for 

dealing with continued voting discrimination, not step by step, 

but comprehensively and finally." S. Rep. No. 97-417, p. 5 

(1982). Sections 4 and 5, which suspend the use of tests and 

devices and require that covered jurisdictions seek preclearance 

of electoral changes, form the "heart of the Act," because they 

"shift the advantage of time and inertia from the perpetrators of 

the evil to its victims," South Carolina v. Katzenbach, 383 U.S. 
  

301, 315 & 328 (1966). Thus, §§ 4 and 5 constitute, along with § 

2, a concerted plan of attack on practices, standards, and 

devices that discriminate against minority voters. Cf. S. Rep. 

No. 97-417, pp. 5-6 (1982), 

Section 2 of the Act contains a broad prohibition of "the 

use of voting rules to abridge exercise of the franchise." South 

Carolina v. Katzenbach, 383 U.S. at 301. The legislative history 
  

of the 1982 amendment of § 4 shows that Congress intended to make 

states affirmatively responsible for dismantling discriminatory 

electoral systems within their territories. Thus, a state's 

continued acquiescence in its subdivisions' use of voting systems 

that result in the dilution of minority voting strength violates 

§ 2. 

Originally, coverage under the special provisions of §§ 4 

  

 



  

and 5 of the Act was triggered by a finding that the state or | 

separately covered subdivision had used a test or device as a 1 

prerequisite to registration or voting and had a history of 

depressed political participation. § 4(b). The triggering 

mechanism was designed to identify and target those jurisdictions 

which had historically discriminated on the basis of race in 

restricting the franchise. A covered jurisdiction could "bail 

out," or free itself from the Act's special remedies, by showing ; 

that, for a specified period of time, it had not used the test or 

device with the purpose or effect of denying or abridging the   
right to vote on account of race. § 4(a). 

In 1982, Congress found a continuing need for the special 

remedies provided by §§ 4 and 5. Preclearance remained necessary 

for some jurisdictions both "because there are 'vestiges of 

discrimination present in theis electoral system and because no 

constructive steps have been taken to alter that fact.'" H.R. 

Rep. No. 97-227, p. 37 (1982). Thus, Congress amended the 

bailout provision to ensure that jurisdictions would not be 

released from the special remedial provisions of the Act merely 

because of the passage of time.l In place of the existing 

bailout provision, which imposed on covered jurisdictions only a 

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passive obligation not to use tests or devices that had the 

  

lThe existing bailout formula permitted covered 
jurisdictions to bail out by showing that they had not used a 
test or device in a discriminatory manner in the preceding 17 
vears. Since § 4 had suspended the use of tests and devices in 
the originally covered jurisdictions on August 6, 1965, such 
jurisdictions would automatically come out from under §§ 4 and 5 

on August 6, 1982. See S. Rep. No. 97-417, p. 43, n. 162 (1982). 

  

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purpose or effect of denying minorities the right to vote, 

Congress substituted a bailout formula that imposed on covered 

jurisdictions an affirmative responsibility to ensure minorities 

the right to vote and to have their votes count. It hoped that 

"a carefully drafted amendment to the bailout provision could 

indeed act as an incentive to jurisdictions to take steps to 

permanently involve minorities within their political process 

..." H.R. Rep. No. 97-227, p. 37 (1982); see also id. at 32; S. 
  

Rep. No. 97-417, p. 2 (1982) (new bailout provision requires a 

showing that jurisdiction has "taken positive steps to increase 

the opportunity for full minority participation in the political 

process, including the removal of any discriminatory barriers"); 

id. at 43-44. 

The new bailout formula, which took effect on August 5, 

1984, provides, in pertinent part, that the declaratory judgment 

releasing a jurisdiction from the requirements of §§ 4 and 5 

"shall issue only if [the United States District Court 
for the District of Columbia] determines that during 
the ten years preceding the filing of the action, and 
during the pendency of such action-- 

(F) such State or political subdivision and all 

governmental units within its territory-- 
(i) have eliminated voting procedures 

and methods of election which inhibit or 
dilute equal access to the electoral process; 

(ii) have engaged in constructive 

efforts to eliminate intimidation and 
harassment of persons exercising rights 
protected under this Act; and 

(iii) have engaged in other constructive 

efforts, such as expanded opportunity for 
convenient registration and voting for every 
person of voting age and the appointment of 
minority persons as election officials 
throughout the jurisdiction and at all stage 

  

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of the election and registration process." 

(emphasis added). The legislative history of this new bailout 

provision shows that Congress intended to impose on covered 

states an affirmative responsibility to police the electoral 

behavior of their political subdivisions and to remedy the 

continuing effects in each of its subdivisions of state laws 

adopted with the purpose or having the effect of denying citizens 

the right to vote on account of race. 

The most detailed discussion of the states' special 

responsibilities under the Act occurred in the context of a floor 

debate in the House concerning a proposed amendment to § 4 that 

would have permitted states to bail out even if not all their 

political subdivisions met all the criteria for bailout. The 

House rejected that amendment overwhelmingly. Representatives 

who spoke in opposition to the proposed amendment stressed both 

the special constitutional role of states in protecting the right 

to vote and the extent of states' control over their 

subdivisions' electoral systems. See, e.g., 127 Cong. Rec. H6969   

(daily ed., Oct. 2, 1981) (Rep. Sensenbrenner) (states have broad 

control over subdivisions and ample authority to make them obey 

the Act); id. at H6970 (Rep. Fish) (noting that states "are 

mentioned specifically in the language of the 15th amendment” and 

"have an important fundamental power with regard to the 

franchise. I think, along with that authority goes the 

responsibility of States to protect the right to vote"); id. 

(Rep. Frank) (same); id. at H6971 (Rep. Chisholm) (states "have a 

 



  

constitutional and a moral responsibility to insure that the 

local governmental units under their jurisdiction meet the 

standards of the act"). 

Of particular salience to this case, several representatives 

pointed to Alabama legislation to support their contention that 

states must be made responsible for the compliance of their 

subdivisions. Representative Washington relied on Alabama's 

local reregistration statutes to illustrate the danger of 

relieving states of the obligation of assuring compliance with 

the Act by their subdivisions: 

"[I]t will be very difficult to determine when a 

violation flowed from a county provision in the first 
instance, from a provision of state law, or as a 
consequence of a county's interpretation or 
administration of a State law of general applicability. 
And throughout all of this would remain the issue of 
whether the State knew or should have known that it was 
legislatively acquiescing to a county practice that 

violated the act." 

127 Cong. Rec. H6968 (daily ed., Oct. 2, 1981). Moreover, 

Representative Washington's explanation of the way in which 

states historically acted to restrict the franchise mirrors this 

Court's description of Alabama's intentional manipulation of 

county commission elections. Compare Dillard v. Crenshaw County, 
  

640 F. Supp. 1347, 1356-59 (M.D. Ala. 1986) with 127 Cong. Rec. 

H6968 (daily ed., Oct. 2, 1981) ("there is a tradition of the 

State legislature overruling or preempting other jurisdictions in 

these matters. Remember it was the Stae [sic] legislatures which 

called constitutional conventions to disenfranchise blacks."). 

Representative Sensenbrenner also used Alabama's local laws as an 

 



  

example to support his assertion that states have broad control 

over subdivisions and ample authority to make them obey the Act. 

Id. at H6969. In light of this debate, the House Report 

expressly stated that the new bailout formula "retain([s] the 

concept that the greater governmental entity is responsible for 

the actions of the units of government within its territory, so 

that the State is barred from bailout unless all its 

counties/parishes can also meet the bailout standard ...." H.R. 

Rep. No. 97-227, p. 33 (1982). 

The Senate Report, which the Supreme Court has characterized 

as an "authoritative source" for determining Congress' purpose in 

enacting the 1982 amendments,. Thornburg v. Gingles, 478 U.S. ’ 
  

92 L.Ed.2d4 25, 42 n. 7 (1986), took the same approach. "it is 

appropriate to condition the right of a state to bail out on the 

compliance of all its political subdivisions, both because of the 

significant statutory and practical control which a state has 

over them and because the Fifteenth Amendment places 

responsibility on the states for protecting voting rights." 8S. 

Rep. No. 97-417, p. 56 (1982). In particular, the Report noted 

that "States have historically been treated as the responsible 

unit of government for protecting the franchise," id. at 57, 

because "the Fifteenth Amendment places responsibility on the 

states for protecting voting rights," id. at 69. Since state 

laws govern local electoral practices, the states ultimately are 

responsible for ensuring that none of their subdivisions deny 

minorities the right to vote. Id. at 57. 

 



  

In sum, the 1982 amendments of § 4, the centerpiece of the 

Act's special protections, were intended to place upon states an 

affirmative obligation to dismantle still-existing barriers to 

minority political participation. A state's failure to undertake 

this duty should not only result in its continued coverage under 

§ 5 but should also be viewed as a violation of § 2, which 

prohibits the states from imposing or applying any voting 

standard practice or procedure which results in the denial or 

abridgment of the right to vote. As the 1982 House Report made 

clear: 

"Under the Voting Rights Act, whether a discriminatory 
practice or procedure is of recent origin affects only 
the mechanism that triggers relief, i.e., litigation 
[under section 2] or preclearance [under section 5]. 

The lawfulness of such a practice should not vary 
depending on when it was adopted, i.e., whether it is a 

change. 

H.R. Rep. No. 97-227, p. 28 (1982). The failure of Alabama to 

dismantle its discriminatory electoral system represents a 

continuing violation of the Voting Rights Act and the Fifteenth 

Amendment.