Houston v. City of Cocoa Defendants' Response in Opposition to Plaintiffs' Application for Attorneys' Fees and Costs

    ''EPISODIC '' BARRIERS

NOTES FROM SENATE HEARINGS

Januaty 27, 1982

Testimonv of Hon. Charles McC. Mathias
(page 2o8)

"The House Subcommitte heard testimony about the
continuing need for the Voting Rights Act. Far from
merely rehashing tales of abuses dating back to
the 196Os, the hearing record contains numeEouBs

contemporary examples
(209) of voting discrimination. Som$re remi-
niscent of the 196Os intlmidation or harassment

of minorlty members seeking to vote or register.
But other relect more sophlstlcated dodges -- ar-
large elections, annexations, majority vote require
ments, purging of voters, and even changes in
established voting places. Such tactics have been

effectively employed to dilute the impact of
minorlty voters. "

Preoared Statement of Hon. Howard M. Metzenbaum'

(page 226) ". . . though the meothds have changed,

discrlmination st111 exists. As the chairman of the
House Commlttee on the Judj-clary, Peter Rodino,

said during House consideration of voting rights
leglslation last October:

Time and again we were told by witnesses
(at Subcommittee hearings) of ingenious
schemes designed to deny citizens their rights
to vote or to dilute the strength

(227)of their ba}lot. The list of ploys -- dual
registration, rereglstration' gerrymanderi-ng,
at-Iarge elections, annexatlons, intimidation,



EPisodic barriers,' 2

inconvenience to name a few -- is limited
only by the imagination.

And as the civil Rights commission found in a report
issued last Year:

"In a study of voting problems in 70 juris-
dictions covered by the preclearance provislons,
some minorities fouQr- registration officials
discourteous, or opef,ty frostile and intimidating
when they attempted to regj-ster. Requests
for unnecessary personal information by officlal-s
also were found to inti-midate minorities ' ' '
The present attitudes of registrars deter
minorities from registering.
".. . registration i-n the jurisdictions studied
often took place in locations or at times that
were particuJ-arly inconvenient for mlnorities '
"... minoriti-es continued to be harassed or
intimidated by election officials when they
attemPted to vote."

Letter from Assi-stant Att Gen' I Ids to Hatch

Atty. Gen'l Smith's testimony)

(page Ig2) [Responding to a request to describe

the Justice Department's interpretation of the term

"voting procedures and methods of election which

inhibit or dilute equal access to the electoral
process" as used 1n H.R. 3:-L2. (from the amendments

to the bailout Provisions: ]

(page Lg4) [Based on its reading of the House

committee report, the department concl-uded: ]

"Thus, it appears that subparagraphs (i) and (j-ii)

would requlre at a minj-mum that any covered juris-
diction seeking bailout not only elimlnate any

registration requirements or practices that mj-ght

be said to disadvantage blacks or members of language

minority groups, but also alternatively adopt such

measures as necessary to enhance the opportunitles for
convenient registration a6! voting of minorities 

"'

Subcommittee (enterred into record after



Episodic barri-ers, 3

Testimony of Vilma Martinez (Exec. Dir., Gen.

Counsel. MALDEF)

(page 29o) [Regarding continued need for sectlon S;]
IIn Texas,] "There have been objections issued to
statewide purging laws, annexations, redistricting
plans, majority vote requirements, and poll1ng
place changes. "

Testimony of Ruth Hinerfeld (Pres., League of Women Voters)

Sen. HATCH . You speak at length about what you

refer to as psychological pressures facing potential
voters. You boserve for example that "persons in low
income projects are fearful of registering to vote
because they fell information obtained will be given t
to the housing authorlty and the Department of
Social Services. "

I have to admit, I am personally sorry that these
psychological pressures exlst, as I am sure that they
do, but what is the relevance of that to the Legis-
lative debate that is now taking place?

Ms. HINERFELD. That of course is one of the
examples of the kind of subtle harassment that poten-
tial registrees and voters face.

I think that for somebody like you, Mr. Chairman
or like me, where we might go to register would not be

of consequence. We are not intimldated by official
places; we are not inti-midated by neighborhoods where
we do not feel welcome. But as we try to state in the



eplsodic barrlers, 4

cases we cited, for many of these people for whom

registeri-ng to vote can be somethi-ng of an act of
courage, certain places are considered so lnhospitable
that they are afrai-d to appear in them and they are

afraid to be registered by certain people that they
perceive might be misusing a Iist of names.

Sen. HATCH. I agree with you. I feel sorry that
such psychological pressures exist or that they

continue, but what precisely can the voting Rights ACt

or any law for that matter, do to alleviate these

unfortunate psychological pressures?

Ms. HINERFELD. Again, here we have a possibi-'lity
of a situation wehre in any given jurisdlction the

stie of places for registration or voting might

be changed -- for example, from the schoolhouse to the

county courthouse, from private homes to the jailhouse'
which may not be an accurate example, but that is the

kind of thing that can happen and can be as effective
a deterrent to voting participation as sayhing, "OK,

Iet's see you interpret this section of the constitu-
bion'before You vote. "

Sen. HATCH. Many of the violations of voting
rights that you describe as being "subtle" are, in my

opinion, indeed so subtle that I am not
even sure that I understand they theory under which

they constitute discri-mination, even under you own

attempts at definition in your statement.

Prepared Statement

(326) "if the cost of registering in terms of time,
energy, inconvenlence, personal pride or securlty is
too high, a cltizen may not register or not vote.
And when minority citlzens are discouraged from

registering or voting, they are unable to elect
cand:-dates of their choice to public office or to have

a meaningful voice in political decision-making in



Episodic barriers, 5

their communities. "

[Regarding incidents noted in a survey of L.W.V. loca]
in areas covered bY section 5: ]

"while some do not involve express vi-olations of the

Voting Rights Act, they are cited in order to convey

to you a sense of the climate that, desptie the act's
protections, is still hostile to the idea of equal

protection and representation of minority citizens
in all f acets of political I j-fe. "

(page335) "Once the barriers to registration have

been overcome, there are still road-blocks to the

casting of a meani-ngful vote. One problem is the

often inadequate tralning given to voter registrats
and election officials. Thj.s results in reinforcing
uncooperative attitudes and contributes to the
?requency ofirregularities and 'errors' in the adminis-
tration of registration and voting -- particularly in
heavily minority precincts or districts. "



3p:-sodic barriers, 5
Januarv 29. L982

Testimonv of Laughlin l4cDonald (Dir., Southern Recl.

Office, -{CLU FounC., fric.)

(page 3Bf ) ftites example of Edgef ield County, S.C.

case (!y@!), reversed because of S9$!!9, rvhidh found

unconstj-tutional infrinqement of votinq right on

qrounds of "negligibIe" number of blacks aopointed
as election officials (amonq other ,.."orr")]l

(pacre 333)GIso cites Cross v. Baxter, iD rqhich one

fact rtras that municipal elections I'Iere manaqed by a

Lions Club that excludedl UtacksJ
J

lestirnonv of ilon. :{enrv l{vde (:i.ep. -I11. )

(oaqe 393) "Ilor^r during the hearings in the House,

arlmittedly r^reiqhted in f avor of extension, I heard
witnesses -describe voting slrstems in rvhich blAck
participants are required to fill out their ballots
j-n front'of white po1l-'^ratchers 'uhere there are no

eurtains and no privacv. f heard tales of linited
registration hours in rural coutrties rihere facilities
are often not open in the eveninq, durinq the "reekend,

Testimonv of l{cn. !{enrv L. }4arsh (l,latror, Richrnond, Va. )

or at noontine. "

EOO" a'lso cites rereaistrati on rerJui:ern".,a=]
J

PrepareC statement
(paoe 45f ) f.it." a number of er:isoCic barriers:\



Eoisodic barriers, 7

--refusal to establish additionaL temporarv
registration locations

lln?dillingness of General Reqistrar to assist
IJrcspectir.re registratnts, espec!alltz ir'l acks

-- puttinct registration office in out-of-the
-',vErtf places, or next to the sherif f I s of f ice

onlv tr.ro black registrars out of I35 in t/irqinia

"There are fe'.r assistant or or deprrt"z registrars
and even fe'r'ere blacks serve on the l--15 loca'l
electora'l boards. "

-- or:rsinc, rolLs ',ui-t\out adeqr;a1" notice
inconvenient rout.r.-f

(452) "all of these problems-- purqing of voter
reoistration ro1ls r^rithout qivinq adeqrlags and personal
notice to those pr:rged, refusinq to establish voter
reoistration sites eonvenient tc rninori-ty voters
and nraintaininq of f ices at unmarked and unaccessil:'l e
'locations, alLo'ving reqistration cn11r one Cav a

"reek drrrincr r.rorkincJ i-lours, ref:tsal to apooint quali-
fieC 'clacks to assist in the voter reqi-stration and

electoral proeess -- effective-l-.1 denrl bl-aclcs in manv

areas or r,Tircrinta the opportunitrl to reqi-ster and

particioate in the eLeetoral proeess. These oersistent
and ccntinuing oroblems m'.litate aqainst anv

'veakeninq in S. 1992. "

Fe'lrruarv 2, I982

Preoared Statement of Abiqail Turner (attv I,1obi'! e -lLA. )

Cen:-al- of.

n'.lml)er,

(pace 7?O) f rtes other barriers including
reaistt'aticn for failure to knot.r orecinct
arcl ref1rsal to aDDoint ;leoutrr recris*-rari]

J

,'fltir k1*,r. 4..)
sor:tr.l lrrri:,l.n -,
-,+1" t4 pa. at-te..-rf
c-t;.tt9 :

t ru.vo+:n\t*, t4*;t ;^
frl4ot. t: ne*t*t
q fri*,e,r,,-zr\\



Episodrc barriers, I

(?73) "Absentee ballots \ave been the oi:ject of
continuins controversv in the Alabama election
Drocess. Lack of conf iCsntialitr.z and inecrrritable
eligicilitv criteria "ere t'.vo Drcblems "rhich were

corrected in I978 bv Leqislative action. '{oi^'et/er'

blacks eontinue to maintain t\at thev have been

unfairlv CenieC the use cf absentee ballots and/or
that t\err ]rave been harassed and threatenetl ]:eeau':e

t\ev Cid r:se thern."

Testimonv of -\rmand Derfner' ( Jcln!__q_g_n!sr for Politi!!t1
Studies )

(page l,qgl [n EC-.+efiS)d County case (Mccain v. Lvbrand)

{eci<{ed jrrst bef cre Mobile f or plaintiff s, and reversed
bv the same'court after ilobile:l

"The court noted
sionificant number

and said of thi.s:
Evidence concerning the past f g1^r ry€ars I elections

in Edaefield County sho'+ed exclusion of blaclr.s bY
officials exercisino State action in a cri-tical
part of election Droces.s.

f have a vivi'l recollection of trat testimony

fot r'rr. crouc{ because Sam croucn fsecretar-v of the
ErlgefieJ-C Countv Democrati.c partlf :'rho is a verv nice

..1

fello'..r, was up on the stand and he was talking about

'rrhv there werenrt blacks appointed as poJ-ling
officials, poll nanagers, or po11 clerks; tvhrr blacks

the failr:re t,o apooint any

of bl aclcs as election of f icials



Scisodic barriers, 9

harln't been in other parts of the Election orocess.
I'tre took a stab and asked hin '^rhat he traced it to,

anrL he said , .

(300) I'IelI, it's jrrst the 'uav it has alwav been
here in ECaefield County. T\e r'rhites do this
anC theblacks do that. "

$erfner then points out that tlre Judcre found for <
the plaintiffs on the basis of this and ot]ler i-."r""./

Submi,ssion entitled"I.lemorandum : Sailout Provision,
UnCer S. 199?" (submitted by Derfner)

7(333) Ef" bailout provisions require that juris-
dictio""J"affirmatively ... eliminate voting procedures

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

(ftis is basicalllr quoted from the statute.
The senate report indicates that thi.s is the same

standarrl applred under t\e ner^r section 2, although
here the burden of proof is on t'1e jurisdiction
seel<inq to l:aiL out. Thus, to the extent that practices
are cited as -:nacceptable under t\is crovision of
section 5, !{€ can use this in 'seetion 2 arqurnents.)



?P'st5 
-l+

{or'sodic Bc'nnitxs

ts %^ Se,r' ak I*""AKSS

/ fire DurDooe of my testimony is to ehare with you -eramplee of
/ aiecrim'ina-tory attitideg and practicea as told to ug b.y our local

[r"suee in c6vered luriedictidns. Bssed on their findinga, .thae
iffi; tiir"-coi.l"dea tn"t their local gove_rn-Eent8 are etiU un-
;tffi; t" ;;s"i*-or "ccipt 

the conceft of full participation of
minor{ty citizens in the poli"tical progeos.
-tfiiiirrriitinfi;it .1 fo tH rait ttrat the Voting 4gttt Act and
*&b; il;*i""d musu continue to.play 9.mqlg.r rol,e in.our elec-

U"-rii--ryit"- in-6'ia* to ri*ore eubttb ana inviaiogs barriers to ef'
fective-minority represe-ntation. :^^-- ^L-^

ical participation.
These

ion. i

i6 ana attitudes are indicative of a climate thst is ITheeo DfACtfCeE AIfd atEftuoeg arre UlqlsaLrYc, ul .l suru.ar., u
.tiif-tro"thJ to-tt o idea of minqritry participation and- lepresenta'l* -'rh;;";; 

"h" i^Aatirt of thri contiiruing need for epecialtion. Ttrey are aleo indicative contiiruing need foi tPecisl

il;tdili" to preaerve the fragile gains made irmiaority registra-
tiou and votii:Gili" Eovered jurisdictions Ppor! that barrieT P f-"qr1fg:
uoffi iiiir,Gh:1;;d;;"6"t-gislrationti-e,il{p_l_ryT:lTl
of outreach to- minority communitiea, and on the

clouDt. or voluntaruy Ean(e EurIJa tl' ulli[lt lE6E]rasvu rvrs vv'
ffi J- ut.-osibl"'corrtir,o"'to discourage mgqrity registration.

Btops to

il tilUt""i t oetUitv of eome officials to minority

e€nrice are all too
me give you two erarD-

"'ii" firet one involvea the obetructive attitudes minoritie'- often

""ii*i"i- i. tu" "ditritioo 
procTs. The--Leaqge .of \f,Iomen

rn-r^- ^r Now v^.L-Cifv tnld irn that in New York. mingrity\6;;;i Nl* io"[-eitv t"ta irc that in New York-, minsrisv
*"lI; that requeeiq"r"iiUo of the voter registrqtign forus.for a

itanirea registration drive.report that the board of electrons ," un'
willinc to cooperatJ*ittr tt 

"rio 
or comply with their reqggst. Yet, a

;t;tffi;tt};[,[ *re t*"s"e of W6den Voters gsusrly suffrces
to obtain the form.--1h" 

r"c";d a,,*aote ie an erarnple-gf. the H"d of 
's"btle 

hP"??
ment common in the voting prooeso. This lncrdent waa re-Porceo u)

ffidtt Bii"burg'y.*tn, Texas League of women voters aE

t'ectryo mtnorr8y repre8aBEaEron.'-I;;rtJ;;icuiiiii-titi to Potng out.to the eubcommitt€€ thst
o"-" i-aidi"bt"nitt ma"y of the criteria in the propoeed bail-
out oroced

=f;ffiloc"t 
t""g,res in-areaE covered by-section 5 to detor-

-i;; tfi ;iiil; ir *-t ictr voter registration.and voting ia conduct'
a-i" afu; co--""ilft. BaEed 6'n their information, we have

i"u"tr"d-iiri co"iGion that the percistence of diecriminatory nrac'
tices and attitudee toward regrstering mhorities m covered JUnEF

ildrio*ititi-i"triUits progre$ Ioward -the goal of full minority polit,

Th',;;;;*ti"""-*otf, 
-[r"t-a"tip" * a[ fotantial yirtpra' b.u.t the

1,,ifihi;lain&t tei"Ui oi the minririty population which ig
i6"" f$iy t" U" o*".t","r,6jp"tr *a ""a" ,------- -:One doea not nor a language mi
nority to recofrnize the lat€nE noEEurfy oI_EoIDo {rlllclu.rs rA, Iuerr!,
;l;ii;i#fi;'d p"riiical panicipation. PatEonizins treatment, and
loJoo'd genriec nre all too familiar tactics for discotiraSug mrDor



(7bodr\Baw'-i*s 1

follom "fD north lflisdon [Teras], fig [rrrinsso manager of the
rchml district ordercd only one [voting] 6sshins, even though_t]re
tsiaout w1u predicted to be high. lhat machine waa frlled up by
8:80 p.m. For about 4$ minutea, until another machine was brought
rn" voten wsrs not able to vote in the school election. The election
judSo for the *hool told us alt the trouble started l88t
ttm Mcricrnr rtartad to yoto.,, f6 rnanv 6led,ion
clerks ars urtraind and raciEt; theffi

E[],waY."
League also report€d t}at even when local election sffiginh arn

empowercd by State law to authorize deputy regirtration, institute
Sat-urday or evet'ingi regiotration houre, or aot up aatellite registra-
tion sitos, all stape t}at would make registration easier anil more
acceaible to minoritien they rarely choee to ererciso this option.

t@]!e_!geb s-qrrrpl€s Eay not be erpres8 vioLationa -of the act, I
na crrYnaE€ ul
which voter registratisa is ndrninictcred in covercd jurirdictions de
epite the act'a ptutactions.

The factors which contribute ts thin slirnate ars very inportant
in conaidering whether or not a community ie hdeod ready to come
out fiom under thp protoction of eection 5. Violations of Eection 5
do occur, of @ure, yet eection 5 continuea to earve a paitive func-
tion in projcting minority voting rights, as i[uEtrat€d by receut
svents in IIE Kalb County, Ga- In thFt county, tJre board of ele
tions traE persistently 8ct€d to reatrict the registration of rninofify
citizens, contnry to the purpc€E of the Voting Rights Act.

lf,heo we tctified before the Houee Subcor','nittee on Civil and
Constitutioasl Rights l,aot May, we deecribed in detail one euch fut-
cidenL For eeveral yesrq the league and other citizen groups-
mat notably the NAACP-have conducted registration drive in
IIB lhlb County. thce &ives, conducted in more acceagible loca-
tions atrd at more convenient timee than registration provided by
the county board of elections, have result€d in significant increas€s
in voter regietration.

For eranple, league volunteers registered over 1,3(X) citizens at 4
mqhr ahoppins centerg on I day, February 2, 1980, while only 2,700
were registared at the 115 etabliahed county Eits in the whole
oonth of Jaauary of that year.

Duriry ths 1980 general election year, the board of elections
abruptly discontinuod ite practice of authorizing the League and
other civic groups to regiater voters in auch placea as supermarkets
and libraric. thiE policy ghnnSo had the effect of making voter
regiotration leas acccible, particularly to minority citi"ens.

the Dg Ihlb C.ounty board of elections, in defiaace of aection 5 of
the Voting Rights Act, had fail€d to submit thin change in policy to
the Ilepartment of Justico. lbe De IGlb County League of lf,omen
Votera and tlre I)s Kalb County chapter of the NAACP filed a law-
auit aad in Juae, 1980, obtpi'.ed an iqiunction bas€d on the pre'
clearance violation. [Ihen the board finally submitt€d the chaage,
the Department of JusticE rejectad it, and the board recinded itE
policy.



(pi*r,Arii-Bavra'cla 3

/ Wfr"o.rde testifred before the HousE eubcommittee in May, we
'as did the De Kalb league, that this waE the end of

remarkable Euccesa it has had h increasing minority regi
and removing many of the barriers to minority potitical pr
tion.

Although the etatiEtica ahow progreea, they also show that there
is eti,ll a long way to go before all traceo of the discrininstory Ey&
tems of the past are erased. If increas€d registration rate are to be1
meaningful, they m,'?t .go. hand-i&hand with iacreas€d participa-'

\tion in itt ri."ec ef *Er#"t t;

,/ R.olttrarton Dy rtmrltv (}oanlz.ttm3

I nr itmrtty ca.lg grlue. do r..l to 3arrtc. th. rlnorlty ca11lty rlth rrgis-

. \trIc were \f,Tong. In September, 1981, the county board
ith a new restriction on registration drives'bv civil orcon registration drives'by civil
This new policy would permit theae
cting their registration drivee in ek

prmit theae organizationg to contit
drivee in election yeare but would

allow them to conduct drivee in offolection,

registration lists are purged in odd-numbercd years,
g:ioups have been highly euccesoful in registering and r

E voters during theoe years. As an eranple, over 3,8(X)
regietered during a &month poriod in 1981, 3,0fi) of t
voters. The propoeed change haa been subnitt€d to th€
nt of Justice, and the De KaIb County League of W
has friled a lengthy objection.

The De Kalb County story'illlrstrates our mqior point, w
repeating. Even in the area of voter registration, wherg
that the great€Et progresE has boen made. it ig coveraeethat the greateet progresE has boen

5 that protecte and preaervee tho€o gaiu. Without it, the
it is coverage
. ltithout it,

in lle IkIb County atrd probably a-number of other
rry changes in policy, practicee, and procedurea woulicee, and prccedurea would

into effect.
lhe league believe that the beet argunent for retainins

act's higNy effective adrninistrative enforeement mechanigm iE

?repoh"l Sla+una^* o+ Rvlh j. lh,na.*)a

?P ZL$'L1
I ttr.3lo .lrtra a.d Et ? lnrbtrtlqr. tL, .r. fttq|Iltl, olrtrct d or ha.|t6 Dr

\ 91 rerttr rttlt1166 tia, ocouttrf frr tlt y rlqrratt lrSl3ta,rcr! o? rutiorlrltloa
\
\ flr llcttor offlct'I3' rh' col'rrbot!-r'r'n' co!nt,' 

'5rth 
crrcIlnr Lcegrr of

Ilu uotlr .rgl.lnt:
I

I 'L rttltudln.l 9rcllr.rl3t3. L.3t y..r. th. urrn Citlzco3
t 

I for ltlm?lty AftrlB r.nt d to bld r.glstrrtlon drlrGs throlgh-
II out tia co$ty .t rarloll3 int.raal3. Ugon dlscutslo.! rlth thc
\

\ lo."d of El.ctldls cll.liln, tha llactlcl supcrYlsor coElt d



€pi sod,,?- Ba"n' <fi f

-trcn 

(Ln) htcr Jr.t ocy.r. dorng. p h.y. m prool.c
rlti tln. vour paogla .at. 30 ran, lrrtoB. UtJ/ don,t you

Juri l.t tll. L..gL hold th. drtv.i?. Th. l.cf o, n$p.c!
anal oya?rll cooparttlm lr avidcnt to ilnorlty..grcupr.r

In b rort crtyi..arDrrty gro{g5 rrD i.rru!5t qu.ntrtraa of tfu vot.' ngr3tr.tto.r
forG fof r prri.r.d ltgr3tratro.r drrv. r.gort u.t th. !o.r{ o, Er.cflor 13 .,-
:llllng to cogar.t rlur ttn or caply rlu ut.lr rli|llst. ,.t r tal.pho.t. c.ll
tr!. tr. t .e.. ot bi btart ot b yort crty r..*rty rnfflca to oct ri ti.
fioil.

tliortt, cttlrgr3 *tetlng to ,tgtrt r or,j .r,--a, dtrg.?.glnl tnrrL.rt.
5'5t1. h.r.rt.t .,'d rntr-rd.ilo.r c.' b. .3 .ttacily. rn t,.ilbrttng .raorrt, 7q-
Irtratlo.r .3 tia ola o[rt tdro, trctlca md raprlralr. For rI.Th. Or Col6Dot\D-
Ir,.l coutr. rSrti cuon|u [.gr of rEr vot l! t 3ilfl.3 to tn g.rdDroercat
pr\a3au,r6 ti.t dortv i0l3t ar3t .ra fttqlfitt, coirtlat d r|Ul:

....prrron tn ta trm prEJ.ctr .lt f..rrul o,,telrt rlllg
to Et lcrL tlry frrl tntotr3lql olt furr! ,lll b. glu-
to tio tb.,rag artbrrty ..rd ur. ..g.rr.ot of s0ctrr srrrrc..

i ttr tr ur h!.dd.d for...hay nr.l p.rtcr3.n told b, thl?

\ 
qloyrr or l.ndlox a!.a to rtglrt r .ra Jlo to votr for.. 

/