Memorandum from Lani Guinier to Jack Greenberg RE: Voting Rights Activity

    Memorandum

To : Jack Greenberg

From: '-Lani Gui-nier

Re : Voting Rights, Activity
Date: February 5, l-9g2

You asked me to report briefly on LDF'|s voting rights'activity in the last year. r will summarize wrrat LDF has
been doing in the legislative and ritigative arenas. rnaddition, r will attempt to address two questions: (1) whyis there still a probrem in view of the apparent regisla-tive momentum to extend the 1965 voting nigrrts Act? (z) whatremains to be done?

A. LDF Voting Rights Litigatj-on program

rir the past year we have concentrated on challenges todiscriminatory legisrative reapportionment pursuant to the1980 census in jurisdictions covered by the voting RightsAct. we determined, in consultation with other votingrights experts, that it was important to make fuI1 use ofthe 1965 voting Rights Act before it was due to expire inAugust L982. We are participating, therefore, in ironitoringthe civil Rights Division of the Department of Justice inits review of redi-stricting propggals submitted for precrear-
ance under Section 5 0f the Act.Y we filed comment-s withthe Department on the North Carolina and Louisiana Congressionbland state reapportionment plans, showing how the plans werediscriminatory and providing nondiscriminatory allernatives

L/ under section 5, the submitting jurisdictj-on has theburden of proving that erection law -hanges have neither thepurpose nor the effect of discriminating. This statutory stand-ard is easier to meet for minorities whose voting strenglh hasbeen diluted by a redj-stricting plan, for example, than theconstitutional stand,ard governing a court challenge.



prepared by our experts. We were able to convince the
Department to object to all four state submissions in
North Caro1ina. In North Carolina we also filed. a lawsuit
challenging both the legislature's redi-stricting as well
as a state constitutional provision that dj-1uted minority
voting strength and had never been submitted for preclear-
ance.

In addition to challenging state reapportionments in the
Southr w€ are involved in a constitutional challenge to
reapportionment in Dutchess County, New York. This year
LDF also participated in the retrial of Mobile v. Bolden,
presenting significant evidencer orl remaffid
States Supreme Court, of the city's discriminatory intent
in the genesis and maintenance of the at-1arge system of
government. LDF is also involved in other pending
challenges to discriminatory at-large election systems
(Nashvi11e, Tennesseei Florence, South Carolina; Georgetown
County, South Carolina; Augusta, Georgia). We achieved
victories in two voting rights cases in Florida, Jenkins v.
City of Pensacola and McMillan v. Escambia countylffil6d
an amicus brief on behalf of the Congressional Black Caucus
in ffiprme Court in Rogers v. Lodge, the fj-rst case since
Mobile to reach the Court or ttre i=sue of proving discrimina-
Eo[Tntent il"Tonstitutional and statutory challenges to
voting laws

B. Why is there still a problem?

Despite several court and. legislative victories, there
is still an enormous amount of work to be done before the prom-
ises of the 1965 Act and the Constitution are realized. It must
be understood that Mobile had a tremendous chilling effect on
voting rights 1itiga,ffi Not more than a handful of consti-
tutional challenges to at-large election systems have been
initiated nationwide since May 1980. The majority of cases
being activery litigated are those under section 5 of the Act,
where the effects test still governs. LDF is embroiled in an
uphilI battle about the other key provision of the Act, Section
2, as the senate d.ebates whether to amend it to permilrcourL
challenges based on proof of discriminatory effects. -

Z/ Sections 5 and 2 must be viewed in tandem. Section 5 only
reaches discriminatory election changes made after the Act be-
came law in 1965. Section 2 is needed to challenge pre-1965
election laws which were grandfathered. in by the prospective
nature of Section 5.

La/ tot is also working to obtain post-conviction relief in a
Eiminal case in Pickens County, Alabama in which two civil
rights workers were convicted of voting fraud.

-2-



Although the Houae approved such an amendment, Senate
support is uncertain. Two critical committee chairmen
are vehemently opposed to amending Section 2 and are
using scare tactics of unbelievable Proportion to dislodge
support for the House biIl. LDF is involved in a concerted
efiort to educate Senators and their staffs on the specific
provisions of the bill and to Prepare witnesses to testify
at the Senate hearings on the need for the provisions aS
passed by the House. The oppositionrwhich includes the White
House and Department of Justice, is digging in, however, fot
a real fight. We don't expect t,o get the type of bill we
need, passed , Lf at all, much before August L982.

LDF is playing a crucial role in this process. We helped
draft portions of the bilI, we are constantly asked to
interpret potential amendments, and we are briefing Senators,
at their requestr orl our exPerience litigating under the Act,
especially the difficulty of proving intent under Section 2.
Our expertise is invaluable at this stage because the debate
centers on technical lega1 and constitutional problems in
amending the Act and overturning the Supreme Court.

C. What needs to be Done?

Our reapportionment challenges are still in the discovery
stage. Since we are forced to prove- the intent of the legisla-
ture which enacted the redj-stricting, the ordeal of deposing
the individual legislators is still ahead of us. We are also
preparing and revising alternate pIans, each of which requires
costly computer time and. expertise. We are reviewing requests
to file voting lawsuits in Chicago, Illinois, Goldsboro, North
Carolina, Baton Rouge, Louisiana and Greenville, Mississippi.
Finally, each of these cases will require a substantial com-
mitment of staff time and money because of the complexity of
the issues and the d.ifficulty of proving intent. LDE' is working
against the clock with other civil rights groups to extend the
Voting Rightq Act as passed by the House without crippling
amendments.3/

1/ Although
accepted, the

the need for a Voting
specr-tLc provl-saons

Rights Act is generally
are hotly contested.

-3-


	18 92
	18 93
	18 94