Racial and Ethnic Tensions in American Communities: Poverty, Inequality, and Discrimination—Volume VII: The Mississippi Delta Report

Chapter 3

Voting Rights and Political Representation in the Mississippi Delta

VOTING RIGHTS LEGISLATION AND LITIGATION

Reconstruction

Following the end of the Civil War, two constitutional provisions were ratified to protect the right of African Americans to vote.[1] The 14th Amendment to the Constitution, which in part guaranteed equal protection of the laws, was ratified in 1868 and the 15th Amendment was ratified in 1870. The 15th Amendment provided:

  1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

  2. The Congress shall have power to enforce this article by appropriate legislation.[2]

During Reconstruction, several statutes also were passed in an attempt to safeguard the franchise rights of the newly freed slaves. The Military Reconstruction Acts of 1867 mandated that the southern states, as a condition of readmission to the Union, adopt new constitutions providing suffrage rights for African American males.[3] As a result, approximately 700,000 blacks, mostly former slaves, registered to vote.[4] Similarly, following ratification of the 15th Amendment, Congress passed “an Act to enforce the Rights of Citizens of the United States to vote in the several States of this Union, and for other Purposes,”[5] commonly known as the Enforcement Act of 1870. This act mandated that any citizen, otherwise qualified to vote, shall be entitled to vote without distinction to race, color, or previous condition of servitude.[6] The act also provided penalties for obstruction of the right to vote by election officials or other citizens.[7] In 1871, the act was amended to strengthen the penalties for fraudulent registration or failure or refusal to register entitled persons. The act also established election supervisors for cities or towns with more than 20,000 inhabitants.[8]

For a brief time, these protections afforded African Americans the ability to vote and elect representatives of their choice. The state of Mississippi for example, from 1869 to 1901, elected a total of three black U.S. congressmen and 64 black state legislators.[9] The electoral success of African Americans was short-lived, however. In two cases decided in 1875, the Supreme Court severely restricted use of the Enforcement Act,[10] and in 1894 Congress repealed many of the remaining sections. The only provisions of the act that survived were two sections creating civil liability on the part of persons who interfered with the right to vote (now 42 U.S.C. §§ 1983, 1985) and two sections imposing criminal sanctions for hindering a citizen in the exercise of the right to vote (now 18 U.S.C. §§ 241, 242).

Litigation Prior to 1965

Congress did not address the issue of voting rights again until passage of the Civil Rights Act of 1957.[11] Prior to that legislation or enactment of the Voting Rights Act, litigation to protect the rights of people of color to vote was brought under the Constitution, specifically the 15th Amendment and the equal protection clause of the 14th Amendment. The first of these cases challenged impediments to voting that states erected to prevent the exercise of franchise rights by African Americans.

Guinn v. United States, 238 U.S. 347 (1915): The Court in this case considered the constitutionality of an amendment to the Oklahoma Constitution, which established a literacy test as a condition for registering to vote or for voting, but exempted from the requirement people who had been entitled to vote before January 1, 1866, or their lineal descendants (known generally as a grandfather clause). The Court found that there could be no reason for the grandfather clause other than to create a standard of voting that revitalized conditions existing prior to the adoption of the 15th Amendment. Thus, it was void under the 15th Amendment to the Constitution. The Court also held that the literacy test itself was so connected to the grandfather clause that the unconstitutionality of the latter rendered the entire amendment invalid.

Nixon v. Herndon, 273 U.S. 536 (1927): The Supreme Court in this case held unconstitutional under the 14th Amendment a Texas statute that barred blacks from voting in Democratic Party primary elections. Although the statute was challenged under both the 14th and 15th Amendments, the Court did not consider the 15th Amendment claim because it found it “hard to imagine a more direct and obvious infringement of the Fourteenth [Amendment].”

Grovey v. Townsend, 295 U.S. 45 (l935), overruled by Smith v. Allwright, Election Judge, 321 U.S. 649 (1944): In this case, the Court upheld a resolution adopted by the Texas Democratic Party at its state convention that restricted membership in the party and participation in its deliberations to white citizens of Texas. Based on this resolution, the black plaintiff was denied a ballot in the primary election. The Supreme Court held that action by the party’s state convention was not state action under the 14th or 15th Amendments, and denial of the right to vote in a primary, versus a general election, was merely refusal of party membership and did not violate the Constitution.

Breedlove v. Suttles, Tax Collector, 302 U.S. 277 (1937), overruled by Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966): This case considered the constitutionality of a Georgia poll tax of $1, which applied to all inhabitants of the state between the ages of 21 and 60, but not to blind persons or to women who did not register to vote. Payment of the tax was required in order to register and vote in any election. A white male challenged the statute as unconstitutional under the equal protection and privileges and immunities clauses of the 14th Amendment and the 19th Amendment. The Court upheld the poll tax and found it violated neither the 14th nor the 19th Amendments.

Smith v. Allwright, Election Judge, 321 U.S. 649 (1944): The Court in this case overruled its previous decision in Grovey v. Townsend, and held the right to vote in primary elections was protected by the Constitution. This case again concerned the Texas Democratic Party’s resolution that restricted membership to white citizens of Texas. The Court found that primary elections were conducted by the party under state statutory authority and were a part of the machinery for choosing officials. Although recognizing that generally membership in a party was not a concern of the state, the Court held that when membership was a qualification for voting in a primary to select nominees for the general election, it became an action of the state, and in this case violated the 15th Amendment.

Terry v. Adams, 345 U.S. 461 (1953): This case also concerned the voting procedures of the Democratic Party in Texas. The Jaybird Association, a county political organization, excluded blacks from its membership and from its primaries. The Jaybirds held elections each year to select candidates for county offices to run for nomination in the official Democratic primary, but these elections did not use any state machinery or funds. For the previous 60 years, the Jaybird candidate entered the Democratic primary without opposition and eventually won the general election. The Court thus held that the combined election machinery of the Jaybird Association and the Democratic Party deprived petitioners the right to vote because of their race, in violation of the 15th Amendment.

Anderson v. Martin, 375 U.S. 399 (1964): In this case, the Supreme Court held that a Louisiana statute requiring that nomination papers and ballots in all primaries and elections designate the race of the candidate violated the equal protection clause of the 14th Amendment.

Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966): The Court in this case considered a challenge to the constitutionality of Virginia’s poll tax. The Court held that a state violates the equal protection clause of the 14th Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. The Court thus expressly overruled Breedlove v. Suttles, Tax Collector.

Prior to the passage of the Voting Rights Act, constitutional claims also were raised to challenge the size and shape of voting districts. At first, the courts declined to become involved in an area viewed either as part of the political domain or under the exclusive control of the states, but later they began to adjudicate these cases.

Colegrove v. Green, 328 U.S. 549 (1946): This case involved an action brought by citizens of Illinois alleging that because of substantial changes in population, congressional districts in the state lacked compactness of territory and equality of population. The Court affirmed the decision of the district court dismissing the complaint, holding that Congress had exclusive authority to secure fair representation by the states in the House of Representatives and the “[c]ourts ought not to enter this political thicket.”[12]

Gomillion v. Lightfoot, 364 U.S. 339 (1960): Black residents of Alabama brought an action under the 14th and 15th Amendments of the Constitution challenging a legislative action that changed the boundaries of the city of Tuskegee from a square to an irregular 28-sided figure. This change resulted in removing from the city’s boundaries all but four or five of its 400 black voters. The district court had dismissed the action on the grounds that it had no authority to change the boundaries of a municipal corporation established by a state’s legislative body. The Supreme Court reversed, holding that although the exercise of a state power wholly within the domain of state interest is insulated from federal judicial review, that insulation “is not carried over when state power is used as an instrument for circumventing a federally protected right.”[13]

Baker v. Carr, 369 U.S. 186 (1962): In this case, citizens of Tennessee brought an action claiming they had suffered a debasement of their votes, in violation of the equal protection clause of the 14th Amendment. These allegations were based on the state’s continued application of a 1901 reapportionment act, and its failure to account for the fact that the population of Tennessee had grown substantially and been redistributed. The district court, relying primarily on Colegrove v. Green, had dismissed the claim based on lack of subject-matter jurisdiction and failure to state a claim upon which relief could be granted. The Supreme Court reversed, rejecting the notion that this was a nonjusticiable political question, and held that the allegation of a denial of equal protection presented a justiciable constitutional cause of action.

Reynolds v. Sims, 377 U.S. 533 (1964): In this case, the plaintiffs claimed that the apportionment of the Alabama Legislature deprived them of their rights under the equal protection clause of the 14th Amendment. The 1900 census continued to form the basis of the Alabama legislative apportionment at that time, despite the fact that populations in some counties had grown substantially more than in others. The Court held the equal protection clause requires the seats in both houses of the State Legislature be apportioned on a population basis. The Court recognized the right to vote can be infringed by dilution of voting power in addition to an absolute prohibition on voting, and held any dilution of a person’s right to vote in comparison with someone living in another part of the state violates the equal protection clause. This case is commonly referred to as the “one person, one vote” case.

The Voting Rights Act

Litigation proved to be a useful weapon in the battle to destroy discriminatory voting procedures and practices. It was a weapon that could only be used in limited circumstances, however, because it required a substantial commitment of time and money. Ultimately, litigation alone could not effect the significant changes needed to secure the right to vote for eligible African Americans. Black voter registration, particularly in the South, was very low, and in Mississippi only 6.7 percent of eligible blacks were registered to vote in 1964.[14] In response, Congress began to pass important new civil rights legislation, all of which contained some provisions addressing voting rights.

Congress first passed the Civil Rights Act of 1957,[15] which, among other things, authorized the Attorney General to institute civil actions for injunctive relief on behalf of individuals deprived of the right to vote in federal elections and provided penalties for interference with federal voting rights.[16] The 1957 act also created the Commission on Civil Rights to investigate deprivations of the right to vote.[17]

Three years later Congress passed the Civil Rights Act of 1960,[18] which mandated the retention, preservation, reproduction, and inspection of voting records.[19] The act also provided that if injunctive relief was granted in a suit brought by the Attorney General, the Attorney General could ask the court to find a pattern or practice of discrimination, and individuals in the jurisdiction could apply to the court for a finding that they were qualified to vote.[20]

The Civil Rights Act of 1964[21] also contained provisions relating to voting rights. It required that uniform standards, practices, and procedures be applied in determining qualifications to vote in any federal election; forbid denying the right to vote because of immaterial errors or omissions on registration forms; and mandated that if literacy tests were used, they must be administered to every applicant in writing and a certified copy be provided to the applicant.[22] The act also created a presumption, in any proceeding brought by the Attorney General, that anyone with at least a sixth-grade education possessed sufficient literacy to vote.[23] To expedite voting cases, the act provided that the Attorney General could request a hearing before a three-judge court, with appeal directly to the Supreme Court.[24]

Despite the enactment of these various civil rights laws, the most significant piece of legislation affecting the right to vote was the Voting Rights Act of 1965.[25] Among its provisions, the act:

In 1970, the preclearance and other provisions of the Voting Rights Act were extended for another five years, and coverage of the act was expanded to include any state or political subdivision that maintained a test or device on November 1, 1968, and had less than a 50 percent turnout or registration rate in the 1968 presidential election.[33] The act also established a five-year nationwide ban on the use of literacy tests or other devices, prohibited the use of durational residency requirements for presidential elections, and reduced the voting age to 18.[34] In 1975, the act was extended for an additional seven years, and the temporary nationwide ban on the use of literacy tests and other devices was made permanent.[35] The 1975 amendments also expanded the coverage of the act to include language minorities.[36] 

The Voting Rights Act thus provided a new cause of action to challenge discriminatory voting practices. One of the most important provisions of the act was section 5, which required approval by the Attorney General of any new voting qualification or prerequisite or any new standard, practice, or procedure with respect to voting in the covered jurisdictions (which included almost all southern states). The Court’s broad reading of the application of section 5 was instrumental in preventing new roadblocks to minority voter participation. 

South Carolina v. Katzenbach, 383 U.S. 301 (1966): In this case, the Supreme Court considered the constitutionality of certain provisions of the Voting Rights Act of 1965. The state of South Carolina challenged these provisions on the grounds that they exceeded the powers of Congress and encroached on an area reserved to the states. The Court upheld the constitutional­ity of the act, finding that it was a valid means of carrying out the commands of the 15th Amendment.

Allen v. State Board of Elections, 393 U.S. 544 (1969): Here, the Supreme Court addressed the applicability of section 5 of the Voting Rights Act to recently passed laws and regulations in Mississippi and Virginia. The changes instituted by the states included a change from district to at-large voting for county supervisors; a change that made superintendents of education in 11 counties appointive instead of elective; changes in the requirements for independent candidates running in general elections; and new procedures for casting write-in votes. The Court held that the Voting Rights Act should be given the broadest scope possible and that all the above changes were subject to the section 5 preclearance requirements.[37] The Court also acknowledged a private right of action, holding that citizens are entitled to seek declaratory judgment that a state has failed to comply with the Voting Rights Act.

Connor v. Johnson, 402 U.S. 690 (1971): In this challenge to a Mississippi reapportionment statute, the Court held that a decree of the district court is not within the reach of section 5 of the Voting Rights Act. The Court also held that when district courts are forced to fashion apportionment plans, single-member districts are preferable to large multimember districts as a general matter.

Perkins v. Matthews, 400 U.S. 379 (1971): The Court considered the applicability of section 5 to several changes in voting procedures instituted by the city of Canton, Mississippi. The Court held that all of the changes, i.e., (1) changes in the locations of polling places, (2) annexations of adjacent areas, and (3) a change from ward to at-large voting for the election of aldermen, were subject to section 5 clearance.

Beer v. United States, 425 U.S. 130 (1976): The city of New Orleans brought this action under section 5 of the Voting Rights Act, seeking a declaratory judgment that a reapportionment of the councilman districts did not have the purpose or effect of denying or abridging the right to vote. Under the city’s previous apportionment plan, none of the five districts had a black majority of registered voters. Under the new plan, blacks would constitute a majority of registered voters in one of the five districts. Based on the fact that blacks constituted 35 percent of registered voters in New Orleans, the lower court found that the new plan failed to provide blacks the opportunity to elect council members in proportion to their share of the city’s registered voters, and thus it violated section 5. The Supreme Court reversed, holding that the purpose of section 5 was to ensure that there was no retrogression in the position of minorities. Because the new plan enhanced the position of minorities, it could not be found to have the effect of diluting or abridging the right to vote.

Morris v. Gressette, 432 U.S. 491 (1977): In this case, the Supreme Court held that judicial review of the Attorney General’s action under section 5 of the Voting Rights Act is precluded.

Presley v. Etowah County Commission, 502 U.S. 491 (1992): Here, the Supreme Court was presented with two consolidated appeals concerning changes in the decisionmaking authority of the elected members of two different county commissions in Alabama. In Etowah County, the commission passed a resolution shortly before the first black member was elected following the commission’s restructuring pursuant to a consent decree. Where the commissioners had previously controlled the moneys for road repairs, maintenance, and improvement for their own district, the resolution provided that all such moneys be maintained in a common account for the use of the entire county. In Russell County, the commission passed a resolution delegating control over road construction, maintenance, and inventory to the county engineer, an official appointed by the entire commission and responsible to it. Formerly, the commissioners themselves had exercised such control. The Court reviewed its section 5 cases and determined that there are four contexts in which section 5 applies: (1) changes involving the manner of voting, (2) changes in candidacy requirements and qualifications, (3) changes in the composition of the electorate that may vote, and (4) changes affecting the creation or abolition of an elective office. The Court held that neither of the resolutions at issue fell within the four contexts of changes “with respect to voting,” which would make section 5 applicable. Rather, the changes were more in the nature of changes “with respect to governance.”

Morse v. Republican Party of Virginia, 517 U.S. 186 (1996): Here, the Supreme Court held that Virginia’s Republican Party acted under authority of Virginia when it picked its candidate for United States senator at the party’s convention. Therefore, its imposition of a registration fee for voters to become delegates to the convention was subject to section 5 preclearance.

In addition to litigation under section 5 of the Voting Rights Act that challenged changes to voting procedures enacted by states, vote dilution claims continued under the Constitution and section 2 of the Voting Rights Act.[38] These cases often challenged practices such as multimember districts or at-large voting that functioned to minimize the voting strength of minorities.

White v. Regester, 412 U.S. 755 (1973): This case involved a 14th Amendment challenge to two multimember districts in the Texas House of Representatives, claiming that they diluted the voting strength of racial and ethnic minorities. The Court noted it is not enough to allege a population has not had legislative seats in proportion to its voting potential, but the plaintiffs must prove the political process was not equally open to participation by the particular group. The Court upheld the lower court’s decision that the districts invidiously discriminated against black and Mexican American voters, finding the evidence of historical political discrimination against these groups and the residual effects of that discrimination sufficient to sustain the judgment.

Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973), aff’d, East Carrol Parish School Board v. Marshall, 424 U.S. 636 (1976): The Fifth Circuit in this case considered a constitutional challenge to at-large elections for school board and police juries in East Carroll Parish, Louisiana. The Court held that while at-large and multimember districting schemes are not per se unconstitutional, they are unconstitutional if it is demonstrated that minorities have less opportunity to participate in the political process and elect legislators of their choice. The Court then delineated a number of factors to be considered in making such a determination, including lack of access to the slating process; unresponsiveness of legislators to the needs of the minority community; a tenuous policy underlying the preference for multimember or at-large voting; the existence of past discrimination; or the existence of large districts, majority vote requirements, and anti-single-shot voting provisions.

The standards from the above cases and the factors outlined in the Zimmer decision were used in evaluating and adjudicating claims of minority vote dilution under the Constitution and the Voting Rights Act until a Supreme Court decision in 1980.[39] In Mobile v. Bolden,[40] the Court considered whether the at-large system for electing the Mobile, Alabama, City Commission violated the rights of black voters in the city under section 2 of the Voting Rights Act and the 14th and 15th Amendments. A plurality of the Court reversed the decisions of the lower courts, which had found that the at-large system violated the plaintiffs’ rights and held that the plaintiffs must demonstrate discriminatory intent to prevail on vote dilution claims.[41]

1982 Amendments to the Voting Rights Act

In response to the Mobile decision, the Voting Rights Act was amended again in 1982.[42] The amendments restored the results standard prior to the Supreme Court’s decision in Mobile v. Bolden and made clear that proof of discriminatory purpose was not necessary to establish a violation of section 2. The new language of the statute read:

No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color. . . . 

A violation of subsection (a) is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the state or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.[43]

The Senate Judiciary Committee report elaborated on typical factors probative of a section 2 violation:

Additional factors that in some cases have had probative value as part of plaintiffs’ evidence to establish a violation are:

whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group; whether the policy underlying the state or political subdivision’s use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.[44] 

The reinstitution of the results tests was particularly significant with respect to vote dilution claims, where proof of discriminatory motive in the adoption of voting schemes such as multimember districts was increasingly difficult. The elements of proof necessary for a section 2 claim after the 1982 amendments were later clarified by the Supreme Court.

Thornburg v. Gingles, 478 U.S. 30 (1986): In this case, the Supreme Court for the first time addressed the 1982 amendments to the Voting Rights Act. The Court considered a claim that multimember districts for the North Carolina Legislature diluted black voting strength in violation of section 2. In addition to consideration of the relevant factors delineated in the Senate report accompanying the section 2 amendments, the Court held that the following three factors must be established to prove claims of vote dilution under section 2: (1) the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) the minority group must be able to show that it is politically cohesive; and (3) the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it usually to defeat the minority’s preferred candidate.

Chisom v. Roemer, 501 U.S. 380 (1991): The Supreme Court in this case held that section 2 of the Voting Rights Act applies to judicial elections.

Growe v. Emison, 507 U.S. 25 (1993): In this case, the Supreme Court held that the three prerequisites identified in Thornburg v. Gingles as necessary to establish a vote dilution claim with respect to a multimember districting plan are also necessary to establish a vote fragmentation claim with respect to a single-member district.

Voinovich v. Quilter, 507 U.S. 146 (1993): The Supreme Court recognized that manipulation of district lines can dilute the voting strength of politically cohesive minority group members, whether by fragmenting the minority voters among several districts where a bloc-voting majority can routinely out-vote them, or by packing them into one or a small number of districts to minimize their influence in the neighboring districts. In 1996, however, the Court vacated its earlier decision based upon its holdings in Shaw v. Hunt, 517 U.S. 899 (1996), and Bush v. Vera 517 U.S. 952 (1996) (below), and remanded the case to the district court. Applying rational basis scrutiny, the district court upheld the redistricting plan, finding that it did not violate the equal protection clause.[45]

Holder v. Hall, 512 U.S. 874 (1994): This case involved a section 2 vote dilution challenge by black plaintiffs against Bleckley County, Georgia’s single-commissioner form of government. The plaintiffs claimed that the county should have a commission of sufficient size so that, with single-member districts, the county’s black citizens could constitute a majority in one of the districts. The Supreme Court held that, because there was no objective and workable benchmark against which to compare the existing practice, a challenge to the size of a governing authority could not be maintained under section 2.

Johnson v. De Grandy, 512 U.S. 997 (1994): Addressing a redistricting plan in Florida, the Supreme Court held that the proportionality (the percentage of majority-minority districts compared with the percentage of minorities throughout the state) of race was a relevant consideration in redistricting decisions. The Court also noted that the ultimate goal of section 2 is equality of proportionality, not a guarantee of electoral success for minority preferred candidates of whatever race.

In 1997, the Supreme Court addressed the interplay between sections 2 and 5 of the Voting Rights Act. In Reno v. Bossier Parish, the Supreme Court addressed the issue of whether the Justice Department may consider if a legislative plan violates section 2 of the Voting Rights Act in determining whether to grant preclearance under section 5 of the act.[46] The Court held that preclearance may not be denied solely on the basis that the voting plan violates section 2 but left open the Department’s ability to use evidence of a section 2 violation in some degree when deciding whether there is retrogression in the position of minorities.[47]

Challenges to Majority-Minority Districts

For most of this century, voting rights actions brought under the Constitution have challenged practices that either were intended to or had the effect of abridging or denying the rights of minorities to vote. Often in vote dilution cases challenging at-large or multimember districts, the remedy ordered by the court or agreed to by the parties involved the creation of single-member election districts with majority voting-age populations. More recently, 14th Amendment claims have been raised in opposition to the creation of majority-minority districts.

United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144 (1977): In this case, a group of Hasidic Jews challenged a New York State reapportionment plan, alleging that their 14th and 15th Amendment rights were violated when a portion of their community was reassigned to an adjoining district in an alleged effort to achieve a racial quota in districts. The Supreme Court held that the use of racial criteria by the state in attempting to comply with section 5 of the Voting Rights Act did not violate the 14th or 15th Amendments. The Court further held that compliance with the act often requires the use of racial considerations in drawing district lines, and the Constitution does not prevent the state from deliberately creating or preserving black majorities in particular districts in order to comply with section 5.

Shaw v. Reno, 509 U.S. 630 (1993): In this case, the Court considered a 14th Amendment challenge by white voters to the creation of two majority-black congressional districts in North Carolina. The Supreme Court held that the plaintiffs stated a cognizable claim under the equal protection clause of the 14th Amendment by “alleging that the legislation, though race neutral on its face, rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race, and that the separation lacks sufficient justification.”[48]

DeWitt v. Wilson, 856 F. Supp. 1409 (E.D. Cal. 1994), aff’d in part and appeal dismissed in part, 515 U.S. 1170 (1995): The court in this case considered a challenge under the 14th and 15th Amendments to California’s redistricting plan claiming that it was a racial gerrymander and diluted white voter strength. The court rejected the claim, finding that the plan was not a racial gerrymander, but instead properly considered race as one of many factors along with traditional redistricting principles and the requirements of the Voting Rights Act. The court found that strict scrutiny is not required. The court found, however, that even if strict scrutiny were required, the California plan was narrowly tailored to meet a compelling state interest.

Miller v. Johnson, 515 U.S. 900 (1995): The Court in this case considered the constitutionality of Georgia’s 11th Congressional District, which was one of three majority-black districts created as a result of the Georgia Legislature’s 1992 congressional redistricting plan. The Court first upheld the lower court’s finding that race was the predominant factor motivating the drawing of the 11th District, thus mandating the application of strict scrutiny. The Court found that the state’s true interest in designing the 11th District was not to remedy previous discrimination, but was to create a third majority-black district to satisfy the Justice Department’s preclearance demands. The Court, assuming arguendo that satisfying the Justice Department’s preclearance demand was a compelling interest, held that the adopted plan was not narrowly tailored to meet that interest since Georgia’s two previous plans could not have violated section 2 of the Voting Rights Act.[49]

Shaw v. Hunt, 517 U.S. 899 (1996): In this case, the Court again considered the equal protection challenge to North Carolina’s redistricting plan, which created two majority-black districts. On remand from Shaw v. Reno, the district court upheld the constitutionality of the plan, finding that it was narrowly tailored to further the compelling interest of complying with sections 2 and 5 of the Voting Rights Act. The Supreme Court reversed the lower court decision, holding that the plan was not narrowly tailored to further a compelling state interest. The Court assumed, but did not decide, that compliance with section 2 could be a compelling state interest. The Court held that to be narrowly tailored the action must remedy the anticipated violation or achieve compliance. In this case, the Court found that the district could not remedy a potential violation of section 2 because the district did not contain a geographically compact population.

Bush v. Vera, 517 U.S. 952 (1996): The Court in this case considered an equal protection challenge to three majority-minority voting districts in Texas. The Court found that the districts were subject to strict scrutiny, and that they were not narrowly tailored to serve a compelling state interest. Again, the Court assumed that compliance with section 2 could be a compelling state interest, but held that the districts in this case were not narrowly tailored because they were bizarrely shaped and far from compact, which was attributable to racially motivated gerrymandering that subordinated traditional districting principles to race substantially more than was reasonably necessary. The Court also held that for an interest in remedying discrimination to be compelling, the discrimination must be specific and identified.

Lawyer v. Department of Justice, 521 U.S. 567 (1997): The Court reviewed a legislative district of the Florida Legislature. In holding that the district was constitutional, the Court noted that the evidence supports the trial court’s opinion that race did not predominate Florida’s districting decision. The appellants had argued that there was a subordination of traditional districting principles evidenced by the facts that the district encompassed more than one county, crossed a body of water, was irregular in shape, and contained a percentage of black voters higher than the overall black population in the constituent counties. The Court found that on each of the points, the district was no different from what Florida’s traditional districting principles could be expected to produce. 

In the midst of the litigation regarding redistricting and the Voting Rights Act, another issue affecting redistricting has garnered attention. Subsequent to the 1990 census, the Census Bureau found that it had undercounted the population. Based on the results of a “post-enumeration survey,” which attempted to measure the rate at which people were omitted or erroneously enumerated by the census, the Census Bureau determined that the 1990 census resulted in a national undercount of 2.1 percent, or approximately 5.3 million persons out of a total population of approximately 255 million.[50] The undercount was greater for members of racial and ethnic minorities. Hispanics were undercounted by 5.2 percent, African Americans by 4.8 percent and Asian and Pacific Islanders by 3.1 percent.[51] 

HISTORY OF VOTING RIGHTS IN MISSISSIPPI

The state of Mississippi was particularly resistant, even among southern states, to the provision and protection of voting rights for African Americans following the Civil War. Blacks in Mississippi did enjoy quick but short-lived political participation during Reconstruction. In 1870, for example, 30 of the 107 members of the Mississippi State House of Representatives were African American, as were five of the 30 state senators. At that time, African Americans represented a majority of registered voters in Mississippi.[52]

This progress though did not last long. Those who were against black suffrage resorted to various means to restrict the black vote. In 1890, Judge J.J. Chrisman stated:

It is no secret that there has not been a full vote and a fair count in Mississippi since 1875—that we have been preserving the ascendancy of the white people by revolutionary methods. In plain words we have been stuffing the ballot boxes, committing perjury, and . . . carrying the elections by fraud and violence until the whole machinery was about to rot down. No man can be in favor of the election methods which have prevailed . . . who is not a moral idiot.[53] 

Further, although the Military Reconstruction Acts of 1867 had required southern states to adopt new constitutions granting suffrage rights to African American males, the states were not prevented from later changing their constitutions. At Mississippi’s constitutional convention in 1890, the so-called Mississippi plan was adopted, which included several provisions intended to deny blacks the right to vote, including a poll tax; a literacy test; a durational residency requirement; a disenfranchising crimes provision; and a dual registration system, which required separate voter registration for municipal elections.[54] The goal of the convention was to “devise such measures, consistent with the Constitution of the United States, as will enable us to maintain a home government, under the control of the white people of the state.’”[55] The Supreme Court upheld the constitutionality of Mississippi’s new constitutional provisions, finding that the restrictions on voting did not violate the 14th Amendment, because they did not, on their face, discriminate between the races and because it had not been shown that the actual administration was evil.[56] These restrictions were codified by the Mississippi Legislature in 1892, and thereafter, the number of blacks registered to vote dropped to 6 percent of the eligible population.[57]

Efforts in Mississippi to increase and maintain black disenfranchisement continued throughout the 20th century. With the inception of primaries in 1902, the Democratic Party permitted only white Democrats to participate.[58] After the Supreme Court outlawed the whites-only primaries, the Mississippi State Democratic Party passed a resolution in 1947 requiring those citizens who wished to vote in the primaries to swear allegiance to the principles of the party, which included opposition to federal legislation abolishing the poll tax, punishing lynching, and establishing a fair employment practice commission.[59]

In response to the beginnings of the voter registration movement in the 1950s, the Mississippi Legislature in 1955 enacted several provisions intended to prevent black voter registration, including a prohibition on satellite registration and removal of the voter registration book from the county registrar’s office.[60] This measure eliminated a previous statutory requirement that registrars visit each precinct in the county to register voters, and meant that citizens had to travel to the county courthouse to register to vote, often many miles away—a burden much more difficult for blacks, who tended to be poorer and had less access to transportation.[61] Black voter registration in Mississippi, which had reached 22,000 citizens in 1954, dropped to 12,000 the next year.[62]

In 1960, the Mississippi Constitution was amended to require “good moral character” as a qualification for voting, and in 1962 the Mississippi Legislature passed a series of provisions to stop black voter registration. These measures included a “good moral character” requirement and a procedure for challenging the moral character of any applicant; a prohibition on any assistance in filling out voter registration forms; a ban on registrars providing applicants with reasons for rejecting their applications for registration; a requirement that the names and addresses of all applicants be published in the local paper; a requirement that the applicant copy a section of the constitution selected by the registrar and write an interpretation of the section and a statement of the duties and obligations of citizenship; and a requirement that no application be approved unless all the blanks on the form were properly and responsively filled out and both the oath and the application form signed separately.[63] In 1962, the State Legislature also enacted a statute requiring all municipalities with a mayor-board of alderman form of government to elect their aldermen on an at-large basis. The purported purpose of this law was “to maintain our southern way of life.”[64] Recently opened records of the Mississippi Sovereignty Commission reveal that one circuit clerk in Union County remarked to an investigator to the Sovereignty Commission that black registration was going well because the people signing up were “good Negroes, not riffraff.”[65] The clerk reportedly indicated that voter law restrictions, including the poll tax and a literacy test, were keeping “riffraff” off the voting rolls.[66]

As a result of these statutory and constitutional restrictions, along with extensive and brutal voter intimidation and violence, only 6.7 percent of the eligible blacks in Mississippi were registered to vote in 1964.[67] In the Delta county of Sunflower there were 13,000 eligible black voters, but fewer than 200 were registered. Similarly, in Leflore County, only 250 blacks were registered out of a black population of approximately 30,000.[68] The Mississippi State Legislature remained all white, in a state with a 42 percent black population, and the only black elected officials in the state were the mayor and city council of the all-black town of Mound Bayou.[69]

Voter registration rates for African Americans changed dramatically following passage of the Voting Rights Act, with the black registration rate in Mississippi rising to 59.8 percent of eligible voters by 1967.[70] In response to the Voting Rights Act, the Mississippi Legislature in its 1966 session passed a series of measures changing the state’s election laws, including switching from district to countywide elections; increasing filing requirements for independent candidates; changing elected positions to appointed ones; and combining majority-black counties with majority-whites ones. As a result, 14 counties replaced district elections with at-large elections for county boards of supervisors, 22 counties switched from district to at-large elections for county boards of supervisors, 22 counties switched from district to at-large elections for county school board races, and 46 towns and cities in Mississippi changed to at-large elections for city council races.[71]

State officials also engaged in racial gerrymandering in the years following passage of the Voting Rights Act, particularly with respect to Mississippi’s five congressional districts. The Mississippi Delta region, which has always had the largest population of blacks in the state, historically constituted a single congressional district, beginning in 1882 and continuing through redistricting plans adopted in 1932, 1952, and 1962. In 1966, however, the Legislature redrew the lines of the district and divided the Delta region among three congressional districts, resulting in a majority white voting-age population in all five districts.[72] Racial gerrymandering also occurred with respect to county supervisor districts, preventing the election of black supervisors even with the existence of single-member districts.[73]

Obstacles to black voting and candidacy continued in Mississippi, as documented by the Commission during the 1970s. Blacks attempting to register and vote faced dual registration requirements, erratic hours at the clerks’ offices, intimidation and humiliation by registration officials, purging of voter registration rolls, denials of ballots, and the location of polling places in all-white clubs and lodges.[74] African Americans seeking elective office also encountered barriers that made running for office and winning extremely difficult. These barriers included filing fees; obstruction by officials in obtaining information about qualifying to run and lists of registered voters; restrictions on and interference with the use of poll watchers by black candidates; discrimination in vote counting; limited access to the white community during campaigns; and restrictions on independent and third-party candidates.[75]

Litigation under the Constitution and the Voting Rights Act, in addition to section 5 objections entered by the Department of Justice, were instrumental in increasing access to the political process for black citizens of Mississippi and preventing implementation of laws enacted by the Mississippi Legislature intended to prevent black voter registration and participation.

Dyer v. Love, 307 F. Supp. 974 (N.D. Miss. 1969): This case concerned the districts for the Washington County Board of Supervisors. The court held that absent clearance by the Attorney General under section 5 of the Voting Rights Act, the board of supervisors for Washington County did not have the authority to order at-large elections for county supervisor positions.

Moore v. Leflore County Board of Election Commissioners, 502 F.2d 621 (5th Cir. 1974): The court in this case upheld the decision of the lower court, which ordered the county to hold district elections rather than at-large elections for the Leflore County Board of Supervisors because at-large elections diluted black voting strength and failed to take into consideration legitimate planning objectives. The court also rejected a county reapportionment scheme that diluted black voting strength and adopted another plan that created a majority-black voting-age population in four out of the five districts.

Stewart v. Waller, 404 F. Supp. 206 (N.D. Miss. 1975): This case involved a challenge under the 14th and 15th Amendments to the 1962 Mississippi statute that required at-large elections for all aldermen and city council positions in municipalities, where they formerly had been elected from wards. The court held that the statute violated the 14th and the 15th Amendments as a purposeful device conceived and operated to further racial discrimination in voting.

O’Neal v. Simpson, 350 So. 2d 998 (Miss. 1977), cert. denied, 435 U.S. 934 (1978): The Mississippi Supreme Court in this case considered a challenge to a Mississippi statutory provision that dictated that illiterate voters could receive assistance only from election managers whereas blind and disabled voters could receive assistance from any person of their choice. The court held that the provision violated the equal protection clause of the 14th Amendment.

Black political participation and registration in Mississippi began to increase slowly throughout the 1970s and 1980s. Mississippi elected 22 black candidates statewide in the 1967 elections, mostly in justice of the peace and constable offices.[76] Included in this number was the state’s first black state legislator elected since Reconstruction, Robert Clark, who testified, “I was elected November 1967. And, incidentally, when Mayor Blackwell was talking about not being able to vote, . . . the first time I voted, I voted for myself in 1967.”[77] In 1968, Mississippi had a total of 29 black elected officials, and by 1974, this number had risen to 191. As of 1974, however, Mississippi still had only one black state legislator, far fewer than other southern states, all of which had lower black populations. For example, Alabama had 15 black state legislators, Georgia 22, Louisiana 9, North Carolina 6, and South Carolina 13.[78] The primary reason for the dearth of black state legislators was the election plan in use at that time, which comprised mostly multimember districts. In 1971, 29 black candidates ran for office in multimember districts, and all but one of them were defeated. By 1979 Mississippi instituted a new single-member district plan for the Legislature, and 17 blacks were elected, 15 to the House and two to the Senate.[79]

A new plan for Mississippi’s congressional seats also led to the election of the state’s first black congressman. In 1981, the Department of Justice filed a section 5 objection to Mississippi’s congressional district plan. As a result, a federal judge developed a new plan, including the Second Congressional District, which encompassed the Delta region and created the only majority-black district.[80] In 1986, Mike Espy was elected from that district, becoming the first black congressman from Mississippi since Reconstruction.

During the 1980s, many battles were still being fought in Mississippi with respect to local election districts to ensure the protection of voting rights for African Americans. Litigation continued, with the filing of more than 30 county redistricting cases, and Mississippi’s dual registration system, in effect since 1890, was finally overturned.[81] The Department of Justice continued to monitor changes in election procedures in Mississippi, entering 48 section 5 objections to redistricting plans in 28 counties.[82]

Kirksey v. Board of Supervisors, of Hinds County, Mississippi, 554 F.2 139 (5th Cir.), cert. denied, 434 U.S. 968 (1977): This case involved a challenge by black plaintiffs to the establishment of a court-approved plan proposed by the Hinds County Board of Supervisors for voting districts in Hinds County, Mississippi. The plan created five districts that divided the predominately black city of Jackson, none of which had a majority voting-age population. Although the county had a black population of 39.1 percent, no black had ever been elected to a county office. The Fifth Circuit held that the plan violated the 14th and 15th Amendments because it canceled or minimized the voting strength of the black minority by fragmenting a geographically concentrated minority and perpetuating a history of denial of access. On remand, the district court in Kirksey v. Board of Supervisors, of Hinds County, Miss., 468 F. Supp. 285 (S.D. Miss. 1979), approved the new plan that created two districts that had black voting-age populations of 55 percent or more. In the 1979 county elections, two black candidates were elected as county supervisors. They were the first black county supervisors elected in Hinds County since Reconstruction.[83]

Jordan v. City of Greenwood, Mississippi, 599 F. Supp. 397 (N.D. Miss. 1984): In this case, the court found that Greenwood’s at-large commission form of government violated section 2 of the Voting Rights Act.

Mississippi State Chapter, Operation PUSH v. Allain, 674 F. Supp. 1245 (N.D. Miss. 1987), aff’d sub nom., Mississippi State Chapter, Operation PUSH v. Mabus, 932 F.2d 400 (5th Cir 1991): In this case, the court considered a section 2 challenge to a dual registration requirement and a prohibition on satellite voter registration. Under Mississippi statute, to be a qualified elector for all municipal elections, a resident was required to register with the municipal clerk after having registered at the office of the county registrar. In addition, only municipal clerks who had been appointed as deputy county registrars were eligible to register voters for county, state, and federal elections. This often required residents to travel long distances to a county seat in order to register for nonmunicipal elections and resulted in a black voter registration rate that was 25 percent below that of white citizens. The court found these practices to be in violation of section 2 of the Voting Rights Act.[84]

Martin v. Allain, 658 F. Supp. 1183 (S.D. Miss. 1987): In this case, the court considered a section 2 challenge to the at-large post-election methods and the multimember districts used to elect circuit, chancery, and county court judges. The court held that although many of the factors considered in the “totality of the circumstances” test applied to all the judicial districts, the plaintiffs proved a violation of section 2 only with respect to certain districts, those in which there was a sufficiently large and geographically compact minority group which could constitute a majority in a single-member district. In Martin v. Mabus, 700 F. Supp. 327 (S.D. Miss. 1988), the court ordered the creation of single-member subdistricts as a remedy for the section 2 violation in Martin v. Allain.

As a result of these and similar actions, the number of black elected officials in Mississippi began to rise gradually throughout the 1980s and into the 1990s. Many majority-black counties in the Mississippi Delta, that had no or only one black supervisor until the late 1980s, began to elect black representatives (see appendix A). Similar increases occurred with respect to black representation in municipal elected offices. Whereas in 1965 most cities and towns in Mississippi elected city council and board of aldermen members through at-large elections, by 1988 most had converted to ward or single-member district plans. As a result, the number of black elected officials on municipal governing bodies rose substantially throughout the 1980s, nearly doubling between 1984 and 1993 (see appendix B).

CURRENT POLITICAL REPRESENTATION IN MISSISSIPPI

Although progress was slow, by the mid-1990s Mississippi had more black elected officials than any other state. Particularly in the Delta, where all the counties are majority black, political representation for African Americans has risen significantly.

Redistricting at the state and local levels continued after the 1990 census. Litigation filed in 1991 resulted in reapportionment of the State Legislature after which the number of black representatives doubled. Before redistricting the State Legislature was 11 percent black in a state with a black voting-age population of 31.6 percent. By the time of the Commission’s hearing in March 1997, the State Legislature was 25.9 percent black, with 10 black senators, up from two, and 35 black representatives, up from 21.[85] Robert Clark testified that there were several majority-black districts that did not elect a black member due to political differences among the black voting population.[86]

Testimony given at the Commission’s hearing indicated that Mississippi now has more black elected officials than anywhere else in the United States.[87] By the end of 1992, there were more than 825 black elected officials in Mississippi.[88] Overall, nearly 200 black elected officials were women.[89] Unita Blackwell noted, however, that women are not adequately represented in leadership position: “We are the workers, but we [are] still . . . trying to come into our own. And I’m not just talking about black women; I’m talking about all women in the Mississippi Delta.”[90]

Some reports indicate that with the dramatic increase in black representation in the Mississippi Legislature, there has been racial polarization among the members of the Legislature. State Representative Barney Scobey stated he had never seen a session more divided along racial lines than the one ending in April 1993 in which black representation in the Mississippi Legislature had doubled.[91] White lawmakers counter that black lawmakers “can’t deliver politically . . . simply because they are not in step with a majority of voters in Mississippi.”[92] As recently as March 1998, the state Senate voted along racial lines, 39 to 9, rejecting a proposal to compensate the families of civil rights workers killed during Mississippi’s civil rights era.[93] 

In 1949, political scientist V.O. Key stated that “the beginning and the end of Mississippi politics is the Negro.”[94] Race and politics continue to be intertwined in Mississippi nearly half a century later. For example, in the 1995 mayoral election in Greenville, George Patton, a Greenville city councilman and mayoral candidate, accused Paul Artman, a fellow councilman and mayoral candidate, of conspiring to prevent a black majority on the council.[95] Both candidates were white. Artman and the others alleged to be involved denied the charges. Artman, who ultimately won the race, stated he was “greatly saddened for Greenville that everything must turn to race, especially when it comes to political gains.”[96] 

Racial Bloc Voting

The increase in the number of black elected officials in Mississippi can be attributed primarily to the creation of majority-black districts.[97] In the 1980s, almost 90 percent of the black southern legislators were elected from majority-black districts. Only four of the nearly 600 black elected officials in Mississippi in 1988 were elected from majority white districts, and only 19 were from districts that were less than 65 percent black.[98] Similarly, throughout the South, much of the increase in the number of black southern legislators has resulted from an increase in the number of majority-black districts.[99] 

Witnesses at the Commission’s hearing expressed some optimism that white crossover voting existed. Benjamin Griffith noted that Mike Espy received a substantial amount of white support in his re-election to the Congress in 1988.[100] In his first bid for the seat, however, former Congressman Espy received little white support.[101] Further, after hearing evidence in 1987 from both sides’ experts whose results and conclusions were “essentially the same,” the court in Martin v. Allain found that “racial polarization of voters exists throughout the State of Mississippi . . . blacks overwhelmingly tend to vote for blacks and whites almost unanimously for whites in most black versus white elections.”[102] 

Benjamin Griffith expressed concern that the gains made by enforcement of the Voting Rights Act will be “questioned because of a few—and I emphasize, a very few—instances of either local or statewide racially gerrymandered districts. This is not good. And I think it comes back to a concern that the Voting Rights Act through utilization of race-predominant districting has turned into a resegregation tool.”[103] Referring to the recent Supreme Court voting rights cases, Benjamin Griffith testified to the Commission that: 

Those cases have generated few racial gerrymander challenges, not in the Delta, but in counties that are peripheral to the Delta. And my concern is we’ve created in some cases unjustifiable majority/minority districts. In this context I mean unjustifiable in the sense of shape and race being the predominant motive for creating those. . . . Hopefully, that will not be the case in Mississippi, but I’ve got grave concerns about the Second Congressional District [in Mississippi] . . . We don’t need litigation over racially gerrymandered districts to start undercutting the massive and worthy gains that fighting and litigation and years of toil have led us. And these are good results that I’m afraid that, at least in some quarters, are being jeopardized.[104]

Barriers to Black Political Participation

Although significant progress has been made, subtle barriers to full political participation remain. Black voter registration and voting still lag behind that of white citizens.[105] Luther Alexander testified that “[v]oter registration hasn’t been a problem, but we have had problems in getting people to vote. So apathy is something we need to discuss this morning: why people don’t vote.”[106] He expressed concern that voter apathy would lead to the loss of black elected officials.[107] The primary reason for this shortfall appears to be cynicism among black citizens and a loss of confidence in government and in the ability of officials to change their lives. 

While some point to the historical condition of African Americans in Mississippi as affecting voter registration, Benjamin Griffith testified that the “extent to which there’s a direct relationship between past official discrimination against African American citizens, the extent of that relationship as it compares to black electoral participation is getting more and more tenuous, more and more attenuated.”[108] In a similar vein, Robert Sanders, assistant attorney general in Mississippi, stated: 

In every election . . . people are urged to [vote] . . . the media are flooded with requests to vote. In between elections all public officials that I know of are constantly going around and talking to high schools, even the junior highs, imploring kids to get interested in the process. It’s simply at some point, it’s a question of individual behavior, whether people want to vote or not . . . , there aren’t barriers to registering.[109]

Witnesses testified about the correlation between electoral participation, and poverty and education. Mr. Griffith testified as to his belief that “education is absolutely the key, without which we’ll make no progress in the Mississippi Delta. In electoral participation—minority access and mobilization—I think the two are directly related, and I think those also are directly related to poverty.”[110] Similarly, Ms. Blackwell testified that “when you study the poverty, economics, the education, all of that hooks in together [with voting]. You’ve got to have [all] of it going together. If you don’t have it all going together, you know, that’s how we fall down on this side.”[111] 

Census figures demonstrate that voter participation increases dramatically with family income (see table 3.1). For example, among families with income between $5,000 and $9,999, the percentages who were registered and those who actually voted in November 1994 were 40.6 percent and 20 percent, respectively. Similarly, among those whose income was between $10,000 and $14,999, 51 percent were registered and 33 percent voted in November 1994. In contrast, among those with a family income of at least $50,000, 76.8 percent were registered and 60.1 percent actually voted. While 25.2 percent of Mississippi’s population had income in 1989 below the poverty line, the percentage of the black population with income below the poverty line is much higher, at 46.4 percent.[112] In contrast, only 13.2 percent of the white population had income below the poverty level in 1989.[113]

TABLE 3.1
Voting and Family Income in the 1994 Election

 

% registered

% voted

Under $5,000

40.6

20.0

$5,000–$9,000

43.2