Racial and Ethnic Tensions in American Communities: Poverty, Inequality, and Discrimination—Volume VII: The Mississippi Delta Report
Voting Rights and Political Representation in the Mississippi Delta
VOTING RIGHTS LEGISLATION AND LITIGATION
Following the end of the Civil War, two constitutional provisions were ratified to protect the right of African Americans to vote. 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:
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.
The Congress shall have power to enforce this article by appropriate legislation.
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. As a result, approximately 700,000 blacks, mostly former slaves, registered to vote. 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,” 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. The act also provided penalties for obstruction of the right to vote by election officials or other citizens. 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.
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. 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 In two cases decided in 1875, the Supreme Court severely restricted use of the Enforcement Act, and in 1894 Congress repealed many of the remaining sections.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. 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.”
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.”
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. 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, 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. The 1957 act also created the Commission on Civil Rights to investigate deprivations of the right to vote.
Three years later Congress passed the Civil Rights Act of 1960, which mandated the retention, preservation, reproduction, and inspection of voting records. 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.
The Civil Rights Act of 1964 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. 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. 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.
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. Among its provisions, the act:
prohibited the use, by any state or political subdivision, of any qualification or prerequisite to voting, or any standard, practice or procedure, to deny or abridge the right of any citizen to vote on account of race or color.
provided authority to the courts, in any proceeding instituted by the Attorney General to enforce the 15th Amendment, to suspend the use of any test or device that the court had found to have been used to deny or abridge the right to vote.
provided for the automatic suspension of literacy tests and other devices for five years in states and subdivisions where such tests and devices were maintained on November 1, 1964, and where less than 50 percent of the voting-age population was registered or had voted in the presidential election of 1964. Any state or subdivision could be exempted from this provision by obtaining a declaratory judgment that such tests or devices had not been used to accomplish discrimination in the preceding five years.
required that covered states and political subdivisions submit to the Attorney General any new or changed voting requirement. The Attorney General then had 60 days to interpose any objections. Alternatively, the state could enforce the new requirement by obtaining a declaratory judgment that it did not have the purpose or effect of denying or abridging rights protected by the 15th Amendment.
declared Congress’ finding that the collection of a poll tax as a precondition to register or to vote in state or local elections denied the constitutional rights of citizens and authorized the Attorney General to institute actions against the enforcement of any requirement of the payment of a poll tax.
provided for the appointment of federal election examiners and poll watchers upon the order of a court or the Attorney General.
contained criminal penalties for any official who abridged the right to vote or failed to count the vote of any person, or for anyone who intimidated or threatened any person attempting to vote.
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. 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. 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. The 1975 amendments also expanded the coverage of the act to include language minorities.
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. 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. 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. In Mobile v. Bolden, 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.
1982 Amendments to the Voting Rights Act
In response to the Mobile decision, the Voting Rights Act was amended again in 1982. 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.
The Senate Judiciary Committee report elaborated on typical factors probative of a section 2 violation:
The extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, vote, or otherwise participate in the democratic process.
The extent to which voting in the elections of the state or political subdivision is racially polarized.
The extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single-shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group.
If there is a candidate slating process, whether the members of the minority group have been denied access to that process.
The extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process.
Whether political campaigns have been characterized by overt or subtle racial appeals.
The extent to which members of the minority group have been elected to public office in the jurisdiction.
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.
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.
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. 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.
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.”
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.
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. 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.
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.
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.
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. 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.’” 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. 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.
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. 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.
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. 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. Black voter registration in Mississippi, which had reached 22,000 citizens in 1954, dropped to 12,000 the next year.
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. 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.” 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.” The clerk reportedly indicated that voter law restrictions, including the poll tax and a literacy test, were keeping “riffraff” off the voting rolls.
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. 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. 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.
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. 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.
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. Racial gerrymandering also occurred with respect to county supervisor districts, preventing the election of black supervisors even with the existence of single-member districts.
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. 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.
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. 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.” 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. 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.
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. 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. The Department of Justice continued to monitor changes in election procedures in Mississippi, entering 48 section 5 objections to redistricting plans in 28 counties.
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.
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.
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. 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.
Testimony given at the Commission’s hearing indicated that Mississippi now has more black elected officials than anywhere else in the United States. By the end of 1992, there were more than 825 black elected officials in Mississippi. Overall, nearly 200 black elected officials were women. 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.”
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. White lawmakers counter that black lawmakers “can’t deliver politically . . . simply because they are not in step with a majority of voters in Mississippi.” 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.
In 1949, political scientist V.O. Key stated that “the beginning and the end of Mississippi politics is the Negro.” 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. 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.”
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. 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. 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.
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. In his first bid for the seat, however, former Congressman Espy received little white support. 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.”
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.” 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.
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. 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.” He expressed concern that voter apathy would lead to the loss of black elected officials. 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.” 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.
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.” 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.”
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. In contrast, only 13.2 percent of the white population had income below the poverty level in 1989.
$50,000 and over
Source: U.S. Department of Commerce, Bureau of the Census, “Characteristics of the Voting-Age Population Reported Having Registered or Voted: November 1994,” <http://www.census.gov/population/socdemo/voting/profile/ptable>.
Less than high school
Some high school
High school graduate
Some college, including
bachelor’s degree or higher
Source: U.S. Department of Commerce, Bureau of the Census, “Voting and Registration: November 1996,” table 23, <http://www.census.gov/population/socdemo/voting/history/vot23>.
Census figures also demonstrate a strong correlation between educational attainment and voter participation (see table 3.2). For example, in the November 1996 election, voter turnout among those with only some high school education was 33.8 percent, compared with a 72.6 percent turnout among persons with at least a bachelor’s degree.
In Mississippi, there are discrepancies in educational attainment among blacks and whites. Among persons 18 to 24 years old, the percentage of whites with a high school degree or better is 78.1 percent; the percentage of blacks who have achieved at least a high school degree is 65.7 percent. The discrepancy becomes wider among older persons. For example, 71.7 percent of whites and 47.3 percent of blacks who are 25 years old and over have at least a high school degree. Among persons over 24 years old, the percentage of whites having a bachelor’s degree is nearly twice that of blacks. Among persons 25 to 34 years of age, the percentage of white and black males who have a bachelor’s degree is 19.6 percent and 6.6 percent, respectively. The percentage of white and black females who have a bachelor’s degree is 19.9 percent and 10.3 percent, respectively.
Brenda Wright offered another reason contributing to a lack of political participation: a decrease in grassroots organizing. She stated:
There’s so much attention on spending money and buying TV ads and so much less attention on grassroots and knocking on doors, even by the major political parties, calling up voters and finding out, you know, are you going to the polls. . . . I know some nationwide studies have looked at that as a possible cause of declining voter participation.
Ellis Turnage offered the Commission some suggestions on increasing black political participation. He noted that hotly contested races draw minorities out to vote. Some come to the polls on election day because “they’re too ashamed on election day to say I’m not registered, and they’ll come down anyway and vote an affidavit ballot.” He suggested that Mississippi allow these people to register for the next election. He also advocated that at-large districts be eliminated throughout Mississippi. Finally, he suggested that the state provide money for “get out the vote” efforts.
Remnants of the former dual registration system still affect some citizens. As noted earlier, Mississippi voters previously had to register for municipal elections with the municipal clerk after having registered at the office of the county register. Because elimination of the dual system was not retroactive, persons who registered at the county before 1988 would still be unregistered for municipal elections.
Another issue affecting black voter registration is the disenfranchisement of African American voters because of felony convictions. As more young blacks are being put through the criminal justice system, they are losing the right to vote. A recent study by the National Sentencing Project reported that about 4.2 million voting-age Americans cannot vote because they are in prison, on parole, or have permanently lost the right to vote because of their convictions. Of that number, about 1.4 million are black males, which means that one in seven otherwise eligible black males cannot vote. In Mississippi, one who has been convicted of certain crimes as listed in the state’s constitution may not vote even if he has already served his term. In 1997, Representative John Conyers (D-MI) introduced legislation that would give former offenders who are otherwise qualified the right to vote in federal elections once they have been released from prison.
African Americans running for office also encounter obstacles. Ms. Blackwell testified as to the importance of money in elections. Black candidates in Mississippi are not as well financed as white candidates and have difficulty raising money. White candidates often have the ability to hire poll watchers, a luxury few black candidates can afford. Robert Clark noted, “When I ran for Congress in ‘82 and ‘84, if we had gotten three more votes in each box throughout the district, we would have been the winner. But when we analyzed our votes we analyzed certain areas that had the same minority percentages, where we had poll watchers we won in those areas. And in similar areas where we did not have the poll watchers, we lost.”
Impact of Black Political Power in Mississippi
Although African Americans in Mississippi have achieved substantial electoral success, the ability to translate that success into economic gain and power has been less certain. According to Children’s Defense Fund figures, more than half the state’s black children lived below the poverty line in 1990. Census figures also indicate that black per capita income was less than half that of whites in Mississippi. With respect to the Mississippi Delta, 53 percent of its black residents live in poverty, compared with 13.1 percent for the nation as a whole.
Robert Clark testified that “the greatest deterrent to progress in the state of Mississippi is the lack of economic development.” He noted, “We have the black political power. We have the greatest number of black elected officials, but we have not transformed that into economic development.” Mr. Clark posited that the black members of the Legislature “have not successfully united to use our force the way we should. We’re too hung up on individual personalities, rather than forgetting that and uniting for the cause.”
Ellis Turnage, an attorney from Cleveland, Mississippi, was even more critical in assessing the failure of black political representation in improving the quality of life for Mississippi’s black citizens. In response to a question regarding whether any change has occurred, he replied, “Very little.” In following up, Mr. Turnage noted:
If it was my . . . intention to increase the quality of life for voters or citizens in my political subdivision, if that was my goal or my aim, then you’d all be able to see evidence in the quality of life, improvements in housing, education, the likes. I see very little of that. . . . I listened to my fellow comrade from Cleveland, Mr. Griffin, talk eloquently about the progressiveness and how they had the first county administrator in Mississippi and all of the jobs that they have brought to Bolivar County and everything. . . . I haven’t been able to see the same changes that he sees. . . .
If . . . my stated objective and intent is to increase the economic attainment of black voters in this country, then you ought to be able to produce statistical evidence to document that. And I’m not seeing it.
As noted above, the increase in black representation in Mississippi’s Legislature has been accompanied by increased racial polarization in the Legislature. This polarization has hindered the effectiveness of black legislators. For example, State Representative Barney Scobey noted in 1993 that white lawmakers did not appoint blacks to key committee posts commensurate with their numbers and frustrated legislative initiatives introduced by blacks. In contrast, the 1980s saw black legislators wielding considerable influence by allying themselves with moderate white Democrats. The efforts of the biracial coalition resulted in doubling state spending on education, tripling Medicare funding, adopting landlord-tenant reforms, and passing affirmative action legislation with respect to state contracts.
Moreover, others point out some steps toward progress. When Unita Blackwell was elected mayor of Mayersville in Issaquena County, she had four sets of public housing built. It was the first time that the federal housing program had ever been in that county. Problems of water shortages and clean water access in the Delta have been addressed through increasingly effective federal representation, beginning with Mike Espy and continuing with Bennie Thompson. Their action has brought in federal grants and low interest loans for water projects and other programs that are trying to reach into these pockets of poverty and provide sewage control, sanitation, and infrastructure. Further, as discussed in chapter 1, the Delta also is the location of an empowerment zone that residents hope will spawn greater economic development.
Some have pointed toward other noneconomic benefits to black political empowerment in Mississippi. Frank Parker noted that racial violence against blacks in Mississippi, while not eliminated, has dramatically declined since the increase in black voter registration after 1965. Moreover, he noted that racial rhetoric in political campaigns has been curtailed. Further, Parker also found that the influence of black voters, though not a statewide black majority, has changed the white state leadership. In addition, Robert Clark noted that the attitude of the Legislature has become more considerate toward black members and to black Mississippians since the increase in black political representation.
NATIONAL VOTER REGISTRATION ACT
In 1993, Congress passed the National Voter Registration Act (NVRA), commonly known as the motor voter law, which requires states to make registration more accessible through motor vehicle administrations, welfare and disability agencies, libraries, the U.S. mail, military recruitment offices, and other outlets. A report by Human SERVE, a nonprofit lobby for voter registration reform, estimates that a record 11.2 million Americans registered to vote in 1995, a greater number than at any time since voter registration practice was established in the late 19th century. The Christian Science Monitor reported that between the 1994 midterm elections and October 1996, more than 22 million Americans had registered or reregistered to vote under the motor voter law. In Mississippi, an estimated 10,000 citizens registered under the law. According to Brenda Wright, Mississippi had one of the lowest percentages of NVRA transactions relative to its voting-age population from January 1995 through June 1996, the first 18 months of the NVRA’s operation, than any other state.
Prior to the implementation of the motor voter law, Mississippi had a unified system for voter registration in which a person was eligible to vote in any election, whether federal, state, or local, upon registering to vote. The unified system included voter registration by mail, availability of state voter registration forms at drivers’ license offices, and fairly uniform local voter registration procedures. Mississippi had implemented the unified system following federal court decisions that the previous dual registration requirement violated section 2 of the Voting Rights Act because it had resulted in a “denial or abridgment of the right of black citizens in Mississippi to vote and participate in the electoral process.”
Upon first implementing the motor voter law, Mississippi continued to maintain the unified system for those registering to vote in both federal and state elections for those voters registering pursuant to the state’s pre-existing procedures. Those voters registering at motor vehicle or other locations pursuant to the motor voter law, however, are allowed to vote only for federal offices. Those who wished to vote for state and local offices have to register under the state’s pre-existing procedures. Mississippi is the only state in the nation with separate registration procedures for federal and state elections for those registering under the NVRA. Unita Blackwell spoke of her 1965 appearance before the U.S. Commission on Civil Rights: “At that particular time I came to talk about that I could not register to vote, and I am here today with that same concern about registering to vote.”
Four Mississippians challenged the legitimacy of the two registration systems, alleging that the confusion engendered by separate registration systems may result in discrimination against black voters. Specifically, they argued that Mississippi should be required to preclear its dual registration system with the Justice Department. Brenda Wright, attorney for the plaintiffs in Young v. Fordice, testified at the Commission’s hearing that:
Congress enacted the NVRA in an effort to make voter registration easier and more convenient. . . . We filed the . . . lawsuit in 1995, because Mississippi has chosen to implement the NVRA in a manner that creates burdens and obstacles to voter participation, where none should exist. Mississippi alone, among all other states that have implemented the NVRA, allows NVRA registrants to vote only in federal elections, and it requires them to register again separately under different procedures to be eligible for state and local elections. This takes Mississippi back to the days of dual registration requirements, the type of requirement that was found to be racially discriminatory in a federal court decision as recently as 1987.
In its response to the lawsuit, Mississippi countered that it had no duty to submit its system for Justice Department approval because it never underwent the kind of change requiring preclearance under the Voting Rights Act of 1965. In its answer to the petitioner’s complaint, Mississippi stated it was “merely administering its existing, and precleared, state election system, while, at the same time, administering the requirements for federal elections as imposed upon it by the federal government.”
Brenda Wright told the Commission that Mississippi’s refusal to implement a unified registration system under the NVRA must be viewed in the historical context of the prior dual registration requirement. As noted above, until 1987, Mississippi maintained a dual registration system for municipal and state elections; citizens who wished to vote in municipal elections had to first register with the circuit clerk of the county and then register separately with the municipal court. In 1987, a district court ruled that “Mississippi’s statutory dual registration requirement. . . . [was] adopted for a racially discriminatory purpose.”
Ellis Turnage testified that he had examined the rolls of voters registered in Bolivar County under the NVRA. Based on his personal knowledge and experience as legal counsel to the Bolivar County Board of Election Commission, Mr. Turnage testified, “I can tell you or represent to you that the people who are using motor voter in my county are overwhelmingly black.” The Department of Justice, in its preclearance objection letter, stated that “it appears likely that a majority of the applicants for voter registration under the NVRA in Mississippi are black.”
Shortly after the Commission’s hearing, the Supreme Court handed down its decision in Young v. Fordice. The District Court for the Southern District of Mississippi had ruled that Mississippi’s maintenance of dual registration rolls for federal and state elections, in contrast to its previous unitary system, is a creation of the federal government through the National Voter Registration Act. Because it was not the state’s creation, the district court ruled it did not require preclearance under section 5. The Court reversed the district court’s decision and held that Mississippi must preclear the dual system that was put into place in an effort to satisfy the NVRA. The Court noted the confusion resulting from the separate registration systems “probably would have led [NVRA registrants] . . . to believe that NVRA registration permitted them to vote in all elections” and “might well mislead if they cannot in fact be used to register for state elections.” In fact, the Justice Department noted that there appeared to be widespread agreement among election officials in Mississippi that NVRA voters were significantly confused about their inability to vote in state and local elections under the separate registration system.
Luther Alexander testified that the chairman of the election committee in Mississippi’s Senate refused to pass the motor voter bill (allowing for registration of state, local, and federal elections under the NVRA) because:
it is tied up in court. And historically when something has been in court, historically we have not taken it up. . . . [H]e is saying if we pass the bill, then Mississippi is going to be liable for paying the fees of the lawyers that file the suit. And that’s his reason, but it shouldn’t ever have had to go to court.
Mr. Sanders voiced another concern with respect to implementing the NVRA in Mississippi. He noted that once Mississippi allowed NVRA registrants to vote in state and local elections, the NVRA would become the benchmark for voting in Mississippi. He presented a scenario in which Congress decided to change the NVRA to provide for same day registration:
If the individuals in the Mississippi Legislature were to say . . . we want to decouple from the NVRA . . . because we just don’t like the direction that the Congress has gone . . . we’d have to pass legislation and submit that decoupling legislation to the attorney general for preclearance and I doubt very seriously that we would ever get preclearance, and I doubt that we would be successful in a declaratory judgment action with the district court.
The effect of being unable to decouple would simply be in the view of many people . . . to cede authority or control of Mississippi registration law to the Congress, and that is a step that many people in the Legislature are very hesitant to take. And that is a fundamental concern because we think obviously voting is a core right and any political unit’s authority to control the registration of voters is also a core function of state government . . .
The Secretary of State’s Office reported that 78 of the 82 circuit clerks in Mississippi indicated they wanted the state to pass a motor voter law. Moreover, Mississippi incurs “roughly a half million dollar cost per election year . . . for keeping separate books and for putting forth the efforts required to maintain the voting place in the proper way.”
In September 1997, the Justice Department determined that Mississippi’s separate registration system discriminated against black voters and refused preclearance under section 5 of the Voting Rights Act. Among other things, DOJ noted that public assistance clients were given the opportunity to vote solely through the NVRA forms, which only register voters for federal elections. The majority of these clients are black. In contrast, the drivers’ license offices of the Mississippi Department of Public Safety are offered a choice between state forms and NVRA forms; many voters choose the state forms. According to statistics reported by the state, it appears that persons who obtain drivers’ licenses and picture identification cards at drivers’ license offices in Mississippi are predominantly white. DOJ noted, “The state has administered this new dual registration requirement in such a way that discriminatory effects on black voters were not just foreseeable but almost certain to follow.”
The Mississippi Senate passed a bill in January 1998 which provides that those registered through the NVRA will be registered for state and local elections as well. The House Apportionment and Elections Committee, voting to reject amendments by the chairman that would have required Mississippi voters to present identification upon voting, sent the Senate bill to the full House. In his State of the State Address, Governor Kirk Fordice promised to veto motor voter legislation that did not require all citizens to provide identification at the polls. In the same address, he called the NVRA “an unwarranted federal intrusion” into “one of the most open voter registration processes in the country” and said that it opened the door to fraud. Governor Fordice reportedly has also called the NVRA the “welfare-voter.”
Governor Fordice fulfilled his promise to veto motor voter legislation without provisions for identification at the polls. In late February 1998, Governor Fordice vetoed a motor voter bill sent to him by the Legislature that did not include voter identification requirements. Some black Mississippians are reportedly against such a measure because they remember obstacles erected by the state to keep them from voting in the past. Responding to charges of racism, Governor Fordice stated, “Vote fraud is an equal-opportunity election stealer. It is certainly not, by any stretch of the imagination, a black issue or a white issue.” He angered many lawmakers who opposed voter identification by saying, “It took me a while to come to that realization. Those who oppose us on this, many of them are here because of voter fraud.”
The plaintiffs who had opposed the separate registration system returned to court to request that the court impose a remedy similar to the legislation that had been vetoed by the governor. The U.S. District Court for the Southern District of Mississippi issued an order in Young v. Fordice on October 5, 1998, enjoining the state of Mississippi from denying the right to vote in any state, county, or municipal election to any voter who is registered and qualified to vote in federal elections under the NVRA. On April 18, 2000, Mississippi ended its history of resistance to the motor voter law when recently elected Governor Ronnie Musgrove approved House bill 763, which adopted the provisions of the NVRA.
More specifically, the constitutional provisions addressed the right of
African American men to vote. Women were not guaranteed the right to vote
until ratification of the 19th Amendment to the Constitution in 1920.
U.S. Const. amend. XV.
Chandler Davidson, “The Recent Evolution of Voting Rights Laws Affecting
Racial and Language Minorities,” in Quiet
Revolution in the South, eds. Chandler Davidson and Bernard Grofman
(Princeton, NJ: Princeton University Press, 1994), p. 21.
Steven F. Lawson, Black Ballots:
Voting Rights in the South, 1944–1969 (New York: Columbia University
Press, 1976), p. 2.
Enforcement Act of 1870, 16 Stat. 140 (1870).
Enforcement Act of 1870, 16 Stat. 142 (1870).
Amendment to the Enforcement Act of 1870, 16 Stat. 433 (1871).
Jessie Carney Smith and Carroll Peterson Horton, eds., Historical Statistics of Black America: Volume II (Gale Research,
Inc., 1995), p. 1289.
United States v. Reese, 92 U.S. 214 (1875); United States v. Cruikshank, 92
U.S. 542 (1875).
Civil Rights Act of 1957, Pub. L. No. 85-315, 71 Stat. 634.
Colegrove v. Green, 328 U.S. 549, 555 (1946).
Gomillion v. Lightfoot, 364 U.S. 339, 347 (1960).
U.S. Commission on Civil Rights, The Voting Rights Act: Ten Years After,
January 1975, p. 43 (hereafter cited as USCCR, Voting Rights Act).
Civil Rights Act of 1957, Pub. L. No. 85-315, 71 Stat. 634.
42 U.S.C. § 1971(b)(c) (1994).
The section of the Civil Rights Act of 1957 that created the Commission on
Civil Rights was superseded by the U.S. Commission on Civil Rights Act of
1983, which begins at 42 U.S.C. § 1975 (1994).
Civil Rights Act of 1960, Pub. L. No. 86-449, 74 Stat. 86.
42 U.S.C. §§ 1974, 1974b (1994).
42 U.S.C. § 1971(e) (1994).
Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241.
42 U.S.C. § 1971(a) (1994).
42 U.S.C. § 1971(c) (1994).
42 U.S.C. § 1971(g) (1994).
Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437.
42 U.S.C. § 1973 (1994).
42 U.S.C. § 1973a(b) (1994).
42 U.S.C. § 1973b (1994).
42 U.S.C. § 1973c (1994).
42 U.S.C. § 1973h (1994).
42 U.S.C. §§ 1973a, 1973b (1994).
42 U.S.C. § 1973i (1994).
42 U.S.C. § 1973b (1994).
42 U.S.C. §§ 1973aa, 1973aa-1 (1994). The voting age reduction to age 18
was passed in the Voting Rights Act Amendments of 1970, Pub. L. No. 91-285,
§ 301, 84 Stat. 301. The 26th Amendment later became law on July 1, 1991.
The 26th Amendment states, in part, that “[t]he right of citizens of the
United States, who are eighteen years of age or older, to vote shall not be
denied or abridged by the United States or by any State on account of age.”
U.S. Const. amend XXVI. The
current version of § 301 deals with the enforcement of the 26th Amendment.
42 U.S.C. § 1973bb (1994).
Voting Rights Act of 1965, amendments, Pub. L. No. 94-73, 89 Stat. 400.
42 U.S.C. 1973b(f)(1) (1994).
See also B.C. Foreman v. Dallas County, Tex., 521 U.S. 979 (1997)
(holding that preclearance was necessary despite the fact that the county
was exercising its “discretion” pursuant to state statute when it
adjusted the procedure for appointing election judges according to party
power); NAACP v. Hampton County Election Comm’n, 470 U.S. 166, 178 (1985)
(holding that even administrative efforts to comply with a precleared
statute may require separate preclearance because section 5 reaches informal
as well as formal changes).
This section provides that “[n]o 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. . . .” 42 U.S.C. § 1973 (1994).
Mobile v. Bolden, 446 U.S. 55 (1980).
Id. at 74.
Voting Rights Act Amendments of 1982, Pub. L. No 97-205, 96 Stat. 131.
42 U.S.C. § 1973(a)–(b) (1994).
S. Rep. No. 97-417. 97th Cong., 2d Sess. 28–29 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 206–07.
Quilter v. Voinovich, 981 F. Supp. 1032 (N.D. Ohio 1997), aff’d, 523 U.S. 1043 (1998).
Reno v. Bossier Parish Sch. Bd., 520 U.S. 471 (1997).
Id. at 486–90.
Shaw v. Reno, 509 U.S. 630, 649 (1993), rev’d,
Shaw v. Reno, 517 U.S. 899 (1996).
The case was remanded to the district court, which deferred to the State
Legislature. After the Legislature was unable to reach agreement, the court
drew its own plan, containing one majority-black district. The district
court’s plan was challenged by voters and by the United States alleging
that the plan did not adequately take into account the interests of Georgia’s
black population. The Supreme Court upheld the district court’s plan in
Abrams v. Johnson, 521 U.S. 74 (1997).
City of New York v. U.S. Dept. of Commerce, 34 F.3d 1114, 1121 (2d Cir.
1994), rev’d, 517 U.S. 1 (1996).
Id. at 1121–1122. Reversing the Second Circuit’s opinion, the
Supreme Court held that the decision by the Secretary of Commerce not to
statistically adjust the census using the postenumeration survey violated
neither the Constitution nor federal law. Wisconsin v. City of New York, 517
U.S. 1, 24 (1996).
Frank R. Parker, David C. Colby, and Minion K.C. Morrison, “Mississippi,”
in Quiet Revolution in the South,
eds. Chandler Davidson and Bernard Grofman (Princeton, NJ: Princeton
University Press, 1994), pp. 136–37.
James W. Silver, Mississippi: The
Closed Society (New York: Harcourt, Brace & World, Inc., 1964), p.
Mississippi State Chapter, Operation PUSH v. Allain, 674 F. Supp. 1245, 1251
(N.D. Miss. 1987) aff’d sub nom.,
Mississippi State Chapter, Operation PUSH v. Mabus, 932 F.2d 400 (5th Cir.
1991) (citing Miss. Const.
of 1890, art. 12, §§ 241, 243, 244). The dual registration requirement
remained until it was finally overturned in 1987. At that time, Mississippi
was the only state to have such a requirement.
United States v. Mississippi, 229 F. Supp. 925, 985 (S.D. Miss. 1964), rev’d, 380 U.S. 128 (1965) (Judge Brown dissenting) (quoting Senator
Williams v. Mississippi, 170 U.S. 213, 225 (1898).
Chandler Davidson, “The Voting Rights Act: A Brief History,” in Controversies
in Minority Voting: The Voting Rights Act in Perspective, eds. Bernard
Grofman and Chandler Davidson (Washington, DC: The Brookings Institution,
1992), p. 11.
United States v. Mississippi, 229 F. Supp. at 988.
Id. at 988–89; Steven F. Lawson, Black
Ballots: Voting Rights in the South, 1944–1969 (New York: Columbia
University Press, 1976), p. 2.
Mississippi State Chapter, Operation PUSH v. Allain, 674 F. Supp. 1245, 1251–52
(N.D. Miss. 1987), aff’d sub nom.,
Mississippi State Chapter, Operation PUSH v. Mabus, 932 F.2d 400 (5th Cir.
Id.; John Dittmer, Local
People: The Struggle for Civil
Rights in Mississippi (Urbana, IL: University of Illinois Press, 1994),
Mississippi State Chapter, Operation PUSH v. Allain, 674 F. Supp. 1245, 1252
(N.D. Miss. 1987), aff’d sub nom.,
Mississippi State Chapter, Operation PUSH v. Mabus, 932 F.2d 400 (5th Cir.
1991); Dittmer, Local People, pp.
Operation PUSH, 674 F. Supp. at 1252 (citing 1962 Miss. Laws 570, 575);
United States v. Mississippi, 229 F. Supp. at 996–97.
Frank Parker, Black Votes Count
(Chapel Hill, NC: University of North Carolina Press, 1990), p. 161.
“Racist Agency’s Records Revealed,” The Washington Times, Mar. 18, 1998, p. A6.
USCCR, Voting Rights Act, p. 43, table 3. This registration rate was
low even in comparison to other southern states, where the black
registration rates were as follows: Alabama, 19.3 percent; Georgia, 27.4
percent, Louisiana, 31.6 percent; North Carolina, 46.8 percent; South
Carolina, 37.3 percent; and Virginia, 38.3 percent. Even though the
registration rates for African Americans in these states were higher in
comparison to Mississippi, they still were 30 to 50 percentage points lower
than white registration rates. Ibid.
Dittmer, Local People, pp. 70–71.
USCCR, Voting Rights Act, pp. 128–29.
Ibid., p. 43.
Parker, Black Votes Count, pp. 34–35.
Ibid., pp. 41–43.
Ibid., pp. 152–56.
USCCR, Voting Rights Act, pp. 69–130.
Ibid., pp. 131–72.
Parker, Black Votes Count, p. 72; The
Commercial Appeal, Jan. 3, 1993, p. A9.
Robert Clark, testimony before the U.S. Commission on Civil Rights, hearing,
Greenville, MS, Mar. 6–8, 1997, transcript,
(hereafter cited as Hearing Transcript).
USCCR, Voting Rights Act, pp. 50–51, 63.
Parker, Black Votes Count, pp. 122–26.
See Jordan v. Winter, 604
F. Supp. 807 (N.D. Miss.), aff’d,
469 U.S. 1002 (1984), in which the court held that the interim congressional
redistricting plan, which divided the black population of the state into two
high-impact districts rather than concentrating it into one district,
violated section 2 by diluting minority voting strength. The court then
approved a new plan that provided for a black voting-age majority in one of
Mississippi’s five congressional districts.
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.
Parker, Black Votes Count, p. 152.
Each county in Mississippi is governed by a five-member board of
supervisors. The districts from which the supervisors are elected also
function as election districts for school board members, election
commissioners, justices of the peace, and constables. Ibid., pp. 152–53.
Ibid., p. 156.
The district court gave the Mississippi Legislature the opportunity to cure
the violation. In its 1988 session, the Legislature enacted legislation
eliminating the dual registration requirement and establishing satellite
registration. The district court determined that the legislation cured the
violations of the Voting Rights Act. Mississippi State Chapter, Operation
PUSH v. Mabus, 717 F. Supp. 1189 (N.D. Miss. 1990), aff’d,
932 F.2d 400 (5th Cir. 1991).
Clark Testimony, Hearing Transcript, p. 706.
Ibid., pp. 706–07.
Unita Blackwell Testimony, Hearing Transcript, pp. 686–87; Clark
Testimony, Hearing Transcript, p. 687.
Dittmer, Local People, p. 426.
Ibid., p. 427.
Blackwell Testimony, Hearing Transcript, p. 688. The first black female
legislator in Mississippi was not elected until a special election in 1985
to fill a vacancy. In 1987, Mississippi became one of the first Deep South
states to have a black woman in the State Senate when Senator Alice Hardin
was elected, in Parker, Black Votes
Count, pp. 142–43.
National Public Radio, “Black Caucus Unable to Get Bills in Mississippi
Passed,” Morning Edition, Apr. 30, 1993.
Ibid. (quoting Mississippi State Senator Mike Gunn).
“No Money for Rights Slayings,” The Washington
Post, Mar. 5, 1998, p. A8.
V.O. Key Jr., Southern Politics in
State and Nation (New York: Knopf, 1949), p. 229 (cited in Parker, Black
Votes Count, p. 161).
Valerie Buckingham, “Stories Differ On What Went Down in Mayor’s Office,”
The Delta Gazette, Nov. 2, 1995,
Parker, Black Votes Count, p. 136.
See Martin v. Allain, 658 F. Supp. 1183, 1195 (S.D. Miss. 1987) (four
blacks elected from majority-white districts); Martin v. Mabus, 700 F. Supp.
327, 333–34 n. 1 (S.D. Miss. 1988) (19 black officials elected from
majority-black districts with less than 65 percent black). The “65-percent
rule” has been widely recognized by courts as the percentage at which
black voters will be able to elect the candidates of their choice. The
figure reflects the reality that blacks generally constitute a smaller
proportion of the voting-age population than of the total population, are
registered to vote at lower rates than whites, and turn out to vote at lower
rates than whites. See, e.g., Ketchum v. Byrne, 740 F.2d 1398, 1415–17
(7th Cir. 1984), cert. denied, 471
U.S. 1135 (1985) (indicating that the 65-percent rule is widely recognized
and accepted). But see James v. City of Sarasota, Fla., 611 F. Supp.
25, 32–33 (M.D. Fla. 1985) (appending a letter from Justice Department
explaining that “[t]here is no 65% threshold population figure applied as
a rule of thumb by the Department in redistricting matters reviewed under
Lisa Handley and Bernard Grofman, “The Impact of the Voting Rights Act on
Minority Representation: Black Officeholding in Southern State Legislatures
and Congressional Delegations,” in Quiet
Revolution in the South: The Impact of the Voting Rights Act, 1965–1990,
eds. Chandler Davidson and Bernard Grofman (Princeton, NJ: Princeton
University Press, 1994), pp. 335, 337.
Benjamin Griffith Testimony, Hearing Transcript, p. 698. Espy won the
respect of the white planters in his Delta district by supporting their
interests as a member of the House Agriculture Committee. He received 40
percent of the white vote in his re-election. Dittmer, Local
People, p. 426. In 1995, the district court in Northern Mississippi
noted racial bloc voting in Calhoun County but also noted a diminution of
racially polarized voting. Clark v. Calhoun County, Miss., 881 F. Supp. 252
(N.D. Miss. 1995), rev’d, 88 F.3d 1393 (5th Cir. 1996).
Griffith Testimony, Hearing Transcript, p. 698. In 1986, Mike Espy ran as a
Democrat and challenged white Republican incumbent Webb Franklin. Espy
narrowly won, receiving 97 percent of the black vote and 12 percent of the
white vote. Martin v. Allain, 658 F. Supp. 1183, 1194 (S.D. Miss. 1987). In
the 1996 congressional elections, five incumbent black representatives who
had originally won election from majority-black districts retained their
seats despite changes to their districts following wrongful districting
challenges. Despite their victories, however, it should be noted that the
races still exhibited racially polarized voting. For example, only 31
percent of white voters from Georgia’s 11th District voted for black
incumbent Cynthia McKinney and only 36 percent of white voters in the state’s
Second District voted for black incumbent Sanford Bishop. Moreover, in two
districts, black voters still constituted a plurality of voters.
Martin v. Allain, 658 F. Supp. 1183, 1194 (S.D. Miss. 1987). Moreover,
sociologist James Loewen analyzed the results of the voting in a citywide
referendum regarding whether the city should reform its at-large commission
form of government or replace it with a council whereby nine council members
would be elected from single-member districts. Loewen found that, if one
knew the voter’s race, one could predict the direction of the vote with
95.7 percent accuracy. Whites voted to keep the commission form; blacks
voted to change to the council form. Jerry Himelstein, “Rhetorical
Continuities in the Politics of Race: The Closed Society Revisited,”
The Southern Speech Communication Journal, vol. 48 (Winter 1983), p.
Griffith Testimony, Hearing Transcript, p. 694.
Ibid., pp. 695–97.
See, e.g., Blackwell Testimony, Hearing Transcript, pp. 688–89 (“I
think that we have to take a look at . . . what is the situation in our
country that makes us not appreciate this great right to vote”).
Luther Alexander Testimony, Hearing Transcript, pp. 702–03. Similarly,
Unita Blackwell testified that the Commission should examine whether young
people “[are] getting ready to vote, or are they getting to this climate
that’s in America that says . . . it’s not going to solve anything or
why should we go out and vote, and that kind of thing. And I think that we
have to take a look at . . . what is the situation in our country that makes
us not appreciate this great right to vote.” Blackwell Testimony, Hearing
Transcript, pp. 688–90.
Alexander Testimony, Hearing Transcript, p. 705.
Griffith Testimony, Hearing Transcript, p. 733. Interestingly, following
ratification of the 19th Amendment in 1919 until World War II, when women
began to enter the work force in unprecedented numbers, women registered and
voted at a much lower rate than did men. Even until the 1980s, the rate for
women still lagged behind that for men by at least 10 percentage points.
Karen McGill Arrington, “The Struggle to Gain the Right to Vote: 1787–1965,”
in Voting Rights in America, eds.
McGill Arrington and William L. Taylor (Washington, DC: Leadership
Conference Education Fund and the Joint Center for Political and Economic
Studies, Inc., 1992), pp. 32–33.
Robert Sanders Testimony, Hearing Transcript, p. 810.
Griffith Testimony, Hearing Transcript, p. 726. Griffith also noted, “We
will not be mobilized and will not have participation and will not have that
equal access and opportunity that the Voting Rights Act guarantees until we
deal with the poverty question through education. I think they are
inextricably related. Those are three things that I think you can’t deal
with singly or in isolation.” Ibid., p. 728.
Blackwell Testimony, Hearing Transcript, p. 722. See also Brenda Wright Testimony, Hearing Transcript, p. 809 (“Steps
that need to be taken to ameliorate the still very significant differences
between white and black citizens in terms of their access to jobs, to
economic security, to a good education. Those things are all tied up with
U.S. Department of Commerce, Bureau of the Census, Social and Economic Characteristics: Mississippi, 1990 Census of
Population, No. CP-2-26, pp. 7, 34. In 1989, the average poverty threshold
for a family of four persons was $12,674.
Ibid., p. 31.
See U.S. Department of Commerce,
Bureau of the Census, Social and
Economic Characteristics: Mississippi, 1990 Census of Population, No.
CP-2-26, p. 76.
Wright Testimony, Hearing Transcript, p. 810.
Ellis Turnage Testimony, Hearing Transcript, p. 815.
Ibid., p. 816.
Mississippi State Chapter, Operation PUSH v. Allain, 674 F. Supp. 1245, 1248–49
(N.D. Miss. 1987), aff’d sub nom.,
Mississippi State Chapter, Operation PUSH v. Mabus, 932 F.2d 400 (5th Cir.
Frank Green, “CURE Advised to Win Back Vote for Felons,” The
Richmond Times Dispatch, June 9, 1997, p. B3.
Miss. Const. art. 12, § 241
(1998). See also Miss. Code Ann.
§ 23-15-19 (1998). There have been resolutions introduced in the
Mississippi Legislature to broaden the class of felons to be precluded from
voting. See H.R. Con. Res. 6, 1998 Reg. Sess., 1998 M.S. H.C.R. 6
(1998). Mississippi had a history of selectively excluding certain felons
from voting in an effort to disqualify blacks; in 1890, Mississippi replaced
a constitutional provision disenfranchising citizens convicted of any crime
with one barring only those convicted of certain petty crimes that blacks
were supposedly more likely to commit than whites. See
Ratliff v. Beale, 20 So. 865, 868 (Miss. 1896). See also Andrew L.
Shapiro, “The Disenfranchised,” The
American Prospect, November–December 1997, p. 60. The Supreme Court
unanimously struck down an Alabama constitutional provision with a similar
history of racial discrimination. Hunter v. Underwood, 471 U.S. 222
H.R. 568, 105th Cong., 1st Sess. (1997). The bill was referred to the House
Judiciary Committee in February 1997 and has had no further activity since
“Another thing that’s here that we are talking about is that you have to
be rich, rich, rich to become an elected official. That is not always the
best elected official.” Blackwell Testimony, Hearing Transcript, p.
Similarly, it appears that members of the Congressional Black Caucus raise
significantly less money than the average House member. For example, during
the 1991–1992 election cycle, the average caucus member raised $370,000,
versus $543,000 for the average House member. David A. Bositis, The Congressional Black Caucus in the 103rd Congress (Washington,
DC: Joint Center for Political and Economic Studies, 1994), p. 28.
Clark Testimony, Hearing Transcript, pp. 713–14.
Dittmer, Local People, p. 427.
The per capita income for white persons was $12,183 as compared with $5,194
for black persons. U.S. Department of Commerce, Bureau of the Census, Social
and Economic Characteristics: Mississippi, 1990 Census of Population,
No. CP-2-26, p. 82.
Bositis, The Congressional
Black Caucus, p. 26.
Clark Testimony, Hearing Transcript, p. 681.
Ibid., p. 710.
Ibid., pp. 707–08.
Turnage Testimony, Hearing Transcript, p. 788.
Ibid., pp. 788–90.
National Public Radio, “Black Caucus Unable to Get Bills in Mississippi
Passed,” Morning Edition, Apr. 30, 1993.
Ibid. Others believe that Mississippi’s black legislators have made the
Legislature more responsive to black needs in the enactment of legislation
for educational reform, the establishment of state-financed kindergartens
for the first time in the history of the state, improvements in the state
education financing system, the enactment of salary increases for public
schoolteachers, improvements in the provision of health care under Medicaid,
and the blocking of an increase in the state sales tax. Parker, Black Votes Count, p. 134.
Reed Branson, “Black Son of Delta Carried Hopes to High Places,” The
Commercial Appeal, Aug. 28, 1997, p. A13. See also Sheryl
Stolberg, “New Housing for Poor Sprouts from Cotton Field; No More Rats or
Leaking Roofs,” The Record, Feb.
3, 1997, p. A19.
Parker, Black Votes Count, pp. 199–200.
Ibid., pp. 200–201. Parker argued that racial campaigning continued to
exist, however. For example, in a 1982 congressional race against Robert
Clark, who is black, Webb Franklin appealed to white voters with the slogan,
“He’s One of Us.” A Franklin television ad had the following
voice-over narrative: “‘You know, there’s something about Mississippi
that outsiders will never, ever understand. The way we feel about our family
and God, and the traditions that we have. There is a new Mississippi, a
Mississippi of new jobs and new opportunity for all our citizens [video pan
of black factory workers]. We welcome the new, but we must never, ever
forget what has gone before [video pan of Confederate monuments]. We cannot
forget a heritage that has been sacred through our generations.’” Ibid.,
p. 201. Webb Franklin won the race. In addition, a district court found
proof of racial appeals by white candidates in two 1986 elections. Indeed,
the racial appeals in one race “were overt and contained no subtlety.”
Martin v. Allain, 658 F. Supp. 1183, 1195 (S.D. Miss. 1987). See also
Jerry Himelstein, “Rhetorical Continuities in the Politics of Race: The
Closed Society Revisited,” The
Southern Speech Communication Journal, vol. 48 (Winter 1983), p. 153.
Parker, Black Votes Count, pp. 201–02.
Clark Testimony, Hearing Transcript, p. 707. See also Parker, Black Votes
Count, p. 202.
42 U.S.C. §§ 1973gg–1973gg-10 (1995).
“Record Numbers Register Under ‘Motor Voter’ Law,” The Washington
Post, Mar. 27, 1996, p. A16. According to the report, 5.7 million
registered or updated their registration while conducting motor vehicle
business and 1.3 million registered or updated at public-assistance
James L. Tyson, “Motor Voter Law Yields Results, Some Reproach,” Christian
Science Monitor, Oct. 11, 1996, p. 3.
“Mississippi, Clinton Administration Spar Before High Court on Motor Voter
Law,” The Commercial Appeal,
Jan. 7, 1997, p. A5.
Wright Testimony, Hearing Transcript, p. 776.
Complaint at para. 16, United States v. State of Mississippi, Civ. Action
No. 3:95CV197 (S.D. Miss. 1995).
Letter from Isabelle Katz Pinzler, acting assistant attorney general, U.S.
Department of Justice, to Sandra M. Shelson, special assistant attorney
general, State of Mississippi (Sept. 22, 1997), p. 3 (hereafter cited as DOJ
Mississippi State Chapter, Operation PUSH v. Allain, 674 F. Supp. 1245, 1253
(N.D. Miss. 1987), aff’d sub nom.,
Mississippi State Chapter, Operation PUSH v. Mabus, 932 F.2d 400 (5th Cir.
“Mississippi, Clinton Administration Spar Before High Court on Motor Voter
Law,” The Commercial Appeal,
Jan. 7, 1997, p. A5.
Richard Carelli, “High Court Hears Mississippi’s Voter System,” The
Rocky Mountain News, Jan. 7, 1997,
p. 26A. Until fall 1996, Illinois also did not allow those voters
registering through motor voter locations to vote in state and local
offices. “Voters Not Beating Path to Polls, Say Officials,” The St. Louis Post-Dispatch, Nov. 1, 1996, p. A2.
Blackwell Testimony, Hearing Transcript, p. 683.
Young v. Fordice, Civ. Action No. 3:95CV197 (S.D. Miss. 1995).
Wright Testimony, Hearing Transcript, pp. 774–75.
Answer at para. 56, Young v. Fordice, Civ. Action No. 3:95CV197 (S.D. Miss.
Mississippi State Chapter Operation PUSH v. Allain, 674 F. Supp. 1245, 1252
(N.D. Miss. 1987), aff’d sub nom.,
Mississippi State Chapter, Operation PUSH v. Mabus, 932 F.2d 400 (5th Cir.
Turnage Testimony, Hearing Transcript, p. 785.
DOJ Objection Letter, p. 3.
DOJ based its conclusion on statistics indicating that a majority of the
applications for voter registration in Mississippi have come from public
assistance offices and other statistics indicating that participants in
Mississippi’s public assistance programs are predominantly black.
See 65 U.S.L.W. 3023.
Young v. Fordice, 520 U.S. 273 (1997).
Id. at 1237.
DOJ Objection Letter, p. 4.
Alexander Testimony, Hearing Transcript, p. 708.
Sanders Testimony, Hearing Transcript, pp. 803–04.
See, e.g., Gina Holland, “Miss. Circuit Clerks Are Told of Potholes
in Motor Voter Law,” The Commercial
Appeal, Sept. 27, 1997.
Sanders Testimony, Hearing Transcript, p. 801.
DOJ Objection Letter.
Ibid., p. 3.
Ibid., pp. 3–4.
Ibid., p. 4. Early in 1995, the drivers’ license offices had abandoned
using the state’s mail-in voter registration forms they had offered prior
to implementation of the NVRA and instead offered only the NVRA forms. It
appears, however, that after voters registered under the NVRA were not
allowed to vote in state elections, the drivers’ license offices, unlike
the public assistance offices, resumed distributing state forms.
DOJ Objection Letter, p. 5.
S.B. 2115, 1998 Leg., 113th Reg. Sess. (Miss. 1998).
Reed Branson, “Motor Voter Bill Keeps on Rolling,” The Commercial Appeal, Jan. 30, 1998, p. A15.
Reed Branson, “Fordice Condemns Motor-Voter Bill, Promising a Veto,” The
Commercial Appeal, Jan. 15, 1998, p. A8.
Branson, “Motor Voter Bill Keeps on Rolling,” p. A15. The Justice
Department noted that several proposals aimed at mitigating the
discriminatory effects of the separate registration systems have been
rejected by state officials for “reasons [that] . . . have been
insubstantial, and in some cases have been couched in racially charged terms
indicating antipathy toward “welfare voters.” DOJ
Objection Letter, p. 5.
Reed Branson, “Motor-Voter Supporters Vow Return to Court if Veto Stands,”
The Commercial Appeal, Feb. 26,
1998, p. A13.
Reed Branson, “Fordice Uses Veto Against Motor-Voter,” The Commercial Appeal, Feb. 25, 1998, p. A6.
Reed Branson, “Lawmakers Demand Apology From Fordice; Incensed at ‘Fraud’
Remark on Voter ID Plan,” The
Commercial Appeal, Mar. 20, 1998, p. B1.
 Branson, “Motor-Voter Supporters Vow Return to Court if Veto Stands,” p. A13.