Should it be renewed, amended, or allowed to expire?

The current state of the Voting Rights Act: should it be renewed, amended, or allowed to expire?

Senator Mitchell:

This will be a panel discussion on the topic: “The Current State of the Voting Rights Act: Should it be Renewed, Amended or Allowed to Expire?” This fall, the United States Congress will begin debating whether to renew one of the most significant and controversial civil rights laws ever passed. (1) Section 5 of the Voting Rights Act (2) requires certain state and local governments, mostly in the Deep South, to ask the federal government’s permission before making any change, no matter how small, in the way they run elections. (3) This is known as a “pre-clearance procedure” and has been used many times in the State of Alabama. (4)

I see a number of lawyers in our audience who have been active in cases involving the Voting Rights Act. Section 5, which will sunset in 2007 (5) unless Congress renews it, has both supporters and detractors. I had the privilege of going to Washington as an aide to a United States congressman less than two years after the Voting Rights Act passed. The Act was really new when I was first exposed to it, and one of the first things I did was get a copy of the Congressional Record. The Congressional Record, as most of you know, is the verbatim record of the proceedings of both the United States Senate and United States House. Except for the debate on the Panama Canal Treaty, (6) and more recently on NAFTA, (7) the largest recorded debate in the Congressional Record was that on the debate of the Voting Rights Act, which we are going to discuss today.

We are privileged at this symposium to have a group of outstanding panelists whom I will briefly introduce at this time. After I introduce them, each panelist will have ten minutes to make an opening statement on our general subject. Following that, I will field a number of questions, some of which have already been submitted. In turn, each panelist will have the opportunity to respond to these questions.

The first panelist, to my far right, is a legend in his own time. He is Fred Gray, Sr., for whom this symposium is named. Mr. Gray received his law degree from Case Western Reserve University in Ohio. He is a partner with the firm of Gray, Langford, Sapp, McGowan, Gray and Nathanson with offices in Tuskegee and Montgomery, Alabama. Mr. Gray represented Rosa Parks and Martin Luther King, Jr. and has had extensive experience trying Civil Rights cases. (8) He also served as the first African American President of the Alabama Bar Association. For those of us here at Faulkner University’s Jones School of Law, we are grateful for his continued support of all of our programs at the Law School.

On my immediate right is John Park. I have had the privilege of knowing him for a number of years now, and it may be that one reason I am still in office is because of Mr. Park. He represented me in a lawsuit when they tried to toss me out of the Alabama State Senate on a gerrymandering case about six years ago. (9) Mr. Park received his law degree from Yale University. He is currently an Assistant Attorney General for the State of Alabama with long tenure, and he is highly respected in the field of elections.

Next to me is Dr. Gwen Patton. Dr. Patton earned her Ph.D. from Union Graduate School, her Masters in Education from Antioch, and her Bachelor of Science degree from Tuskegee University. Dr. Patton also received an Honorary Doctor of Letters from the Interdenominational Institute of Theology. You may have heard or seen her recently on C-Span. (10) She testified before the National Commission on the Voting Rights Act recently, and we are quite privileged to have her very knowledgeable background on this panel. (11)

Next to her is Charles Campbell. Mr. Campbell received his law degree from the University of Virginia, one of the founding universities of this country and established by one of our great forefathers. (12) He is also currently an Assistant Attorney General for the State of Alabama.

On the end, to my far left, is Professor Bryan Fair. Professor Fair received his law degree from the University of California at Los Angeles. He is a Professor of Law with the University of Alabama School of Law, and I have heard his name many, many times in a very positive way. He teaches “Race, Racism and the Law” and “Gender of the Law.”

We are also honored to have with us my colleague in the Alabama Senate, the honorable Hank Sanders. Hank is one of the most highly respected members of the Legislature and has been such for many, many years. He is also one of the–I hate to use the word powerful–but most powerful members of the Legislature in that he is Chairman of one of our major committees. (13) He is one of the leaders of the Alabama Senate. I do not know of anybody who has a greater work ethic than Senator Hank Sanders. It is a privilege to serve and work with him. Hank, we are delighted to have you on the panel today.

As you can tell from these brief biographies, we have an outstanding group to discuss a very important contemporary issue with roots that go back almost fifty years. At this time, and in the order in which I introduced them, I will call on each panelist to make a ten-minute statement as an opening part of this discussion. Mr. Gray.

Fred Gray:

Thank you very much, Senator. You heard from me this morning, so I may not even take my ten minutes. What I tried to do during that period of time was to give you a history of why it became necessary for the Voting Rights Act to be passed. As I concluded, I gave you some details about all of the activities that occurred in and around Macon County, Alabama, which really led to the passage of a lot of the bills, including the Boswell Amendment. (14) The testimony that ultimately went before Congress resulted in the Voting Rights Act. I only want to conclude at this time, as I told you at the end of my earlier discussion, that I am in favor of extending the Voting Rights Act.

I think the Voting Rights Act has been responsible for thousands of minorities being elected to public office. But for that Act, we would not have that type of representation. Let me just tell you, because some of you do not know, that on July 16, 1957, bills to abolish Macon County were jointly sponsored by Senator Engelhardt and Representative J. J. Rogers. (15) Representative Rogers was House Representative from Macon County, and Senator Engelhardt was our State Senator. It is the only county in this State, that I know of, which because of the activities that I explained to you this morning including efforts to get persons registered, resulted in a legislative attempt to get rid of a whole county. That commission went to work and they took testimony. Most representatives, from all of the surrounding counties, testified in favor of abolishing the county. I understand they probably would have abolished the county, and various surrounding counties were willing to accept certain parts of it. Then the question came up, “What are we going to do with Tuskegee Institute?” Nobody wanted it, so they did not abolish the county.

I am not prepared to trust Alabama, or to trust my two Senators present here today, who are very nice persons, or to trust the Governor, or the Attorney General with whether minorities continue to enjoy the right to vote. The Voting Rights Act has worked well since it was enacted, and if it is not broken, do not fix it.

Senator Mitchell:

Thank you, Fred. Mr. Park is next, please.

Jack Park:

I am honored to join you here today. For the past seven years, I have worked on the civil side with the State of Alabama Attorney General’s Office. I have been involved in nearly every redistricting, election, and Section 5 litigation that we have had. I have also participated in preparing some of the pre-clearance submissions. Any views that I express today are mine and not those of my office.

I would like to suggest that Congress give serious consideration, to not renewing Section 5 of the Voting Rights Act. It was renewed in 1982, (16) and since 1982, there have been a limited number of objections to submissions by the State of Alabama. The most recent litigation record partakes of political “gotcha” litigations that flashback to pre-clearance submissions, years after they were made, and other misguided attempts to invoke the Act. We could do just fine with some precedents, at the very least, to say what is and what is not a valid Section 5 claim. The rest of the Act survives past 2007. In particular, Section 2 of the Voting Rights Act is the basis for the Dilution Claims. (17)

With respect to Section 5, one change that could possibly be made is the date of the baseline, because the way that it works right now, the baseline dates are from the voting standard practice or procedure on November 1, 1964. (18) There are not any state election officials around today who were working in 1964. We really do not have a good grasp on what we were doing in 1964. That is a good thing, because what was going on was not generally a good thing. Any change since then that has gone into effect has been pre-cleared. Any change since then has been determined not to be retrogressive.

If Congress does decide to re-authorize the Act, it should not reauthorize it for twenty-five years; Congress should reauthorize it for a shorter term and should likewise pull the date of any baseline forward to the present. That way, we can take advantage of the institutional memory of the people who run elections today. In 2005, election officials are primarily motivated to pull off elections with the least amount of disruption.

Dr. Patton:

I am going to try to do this briefly. First of all, I am in favor of the extension of the Voting Rights Act for another twenty-five years. In 1965, we had 300 black elected officials across the country. (19) In 2005, we have 9,100 black elected officials, including the forty-three in Congress. (20)

The voting rights movement and the Act that came in the aftermath were not for black people only. It opened up the franchise to Spanish-speaking people, to Chinese people, to Asian people, and to others as well. Its impact is not concentrated mainly in the Deep South, but also in parts of the Southwest. (21) Parts of the Voting Rights Act are also applicable in other sections of the country. (22) For instance, just recently in Boston, compliance with the Voting Rights Act required the local ballots to be primed in Chinese, because of the significant Chinese population there. (23)

There are three provisions that are very, very crucial in the Voting Rights Act. We have heard about Section 5, which is the pre-clearance part, and I think our Senator Mitchell gave an explanation of what that means. But since its last extension, we have had over a thousand objections levied, across a spectrum of people, objecting to the actions of voting officials and government officials trying to re-arrange and trying to exclude blacks and other people of color and poor people from the voting process.

The Act is not just limited to Alabama. We are talking about a national Voting Rights Act. Alabama has especially benefited from Sections 6 through 9, (24) and in Alabama we have more black elected officials per capita as a result. Mississippi has more elected officials in terms of numbers, but Mississippi also has more blacks than we have here in Alabama. Alabama has more black elected officials per capita than any state in the Union. It is because Sections 6 through 9 draw a big line to maximize representations for all American citizens. The Act also calls for Federal Election Examiners and Observers. (25) In Florida, in the 2000 national election, it was because of the Voting Rights Act that we could send examiners and observers down there to see what went wrong.

The other important section is Section 203, (26) which talks about bilingual or multilingual languages on the ballot. I think that section is very important for Alabama, because we are getting new citizens every day from south of the border. Our Hispanic friends are becoming our new neighbors. We need to bring them into the political process so that they can understand democracy. I think it would do a lot in terms of just being inclusive. It speaks through e pluribus unum (27) that we are responsible as patriotic American citizens to see to it that the franchise is given to everybody.

Last, I would like to say that we all know about the voting rights movement and the march from Selma. It was done through the blood and sweat of many people. Not only black people, but people of conscience, people of all creeds, all colors, and all nationalities came down here. Fifty thousand of us participated so that we could make democracy work. I think that if we remove the law, we will revert to the old ways. I do not know what it is about the human nature of some people, particularly when they have power, but they just seem to forget ethics and fairness. We just simply cannot go back to poll taxes, the literacy test, the Boswell Amendment, gerrymandering, or white-only primaries.

I do not want to take too much time, but you know that in the past white citizens were put into primaries where only whites could vote. (28) Then, we had the opportunity to vote only after the white citizens had made their decision of which white citizens we were going to vote for. We cannot do that. The “grandfather clause” (29) in the city, all of the at-large voting, (30) and other devices, were used to intimidate and to lock out not only black people, but also other people of color and poor people. I vote for the extension.

Charles Campbell:

I, like Jack, work in the Attorney General’s office, and I handle pre-clearance matters. I also pitch in on some of the redistricting litigation and have worked on some of those cases with Jack. But mainly, my interaction with the Voting Rights Act is in making pre-clearance submissions. Before I state anything further, I need to make the caveat that any opinions I express here are my own and not necessarily those of the Attorney General’s office.

I am torn between two minds on the Voting Rights Act, because I think it is important, as Professor Fair mentioned. Section 2 (31) is not up for renewal; it is permanent. The provision that requires that minority-voting rights are not to be denied or abridged is a permanent part of law, because of the Fourteenth, Fifteenth, and Thirteenth Amendments. (32)

The most significant area of the Voting Rights Act that is up for renewal in 2007 is Section 5. (33) Section 5 is the provision that requires certain states, certain counties in some states, and certain townships in other states to have any change in voting pre-cleared by the Department of Justice. (34) Section 5 was recognized at the time as an extraordinary piece of legislation that was brought about by an extraordinarily recalcitrant white establishment in the South. I think Section 5 of the Act was critical to stopping the cat-and-mouse game that the power structure was playing with the Federal Government.

The problem with whether to renew the Act or not is that we do not know how the current system would operate if the pre-clearance requirement was removed. We are all behind a veil of ignorance. Do we not trust ourselves, or do we trust the leadership or not trust the leadership? As long as the pre-clearance requirement is in place, we will never know how the structure would operate if it was removed. So I am not convinced that it needs to be ended.

However, I do think from my experience in handling pre-clearance submissions that there is some mending of the Act that can be done. In particular, I think that we ought to focus Section 5 more narrowly on those changes that our history has shown have the greatest potential for retrogression in voting rights. One of those areas is the area of redistricting. Redistricting ought to be subject to pre-clearance.

There are other minor changes to the Act that should be made. Every time we change the absentee ballot forms, we have to submit the changes for pre-clearance. I can never remember getting an objection on it, and I think we actually may be engaged in over-submission of some things. If a change was made to the pre-clearance provision, I think it could be teamed with some form of automatic injunctive relief under Section 2. Any change that is pre-cleared under Section 5 is nonetheless subject to Section 2. If Section 5 was amended and its coverage narrowed, Section 2 could also be amended. That way if someone saw a potential problem, they would have the option of litigation, and they also would have an option to put an automatic stay on the change. I do not know how that would operate so that the protections of Section 5 would not evaporate entirely.

Finally, it is certainly an anomaly that if you live in Ardmore, Alabama, you are subject to the pre-clearance requirement of Section 5, but if you live across the state line in Ardmore, Tennessee, you are not. I think we actually might consider the idea that everyone should be subject to a more narrowed form of Section 5.

Bryan Fair:

I appreciate all the remarks of the prior panelists, and I look forward to hearing from Senator Sanders. I will just make a couple of points, since I, too, had an opportunity this morning to share some of my thoughts. I am reminded of a line from Justice Holmes, perhaps seventy years ago, when he wrote that, “A page of history is worth a volume of logic.” (35) What Mr. Gray, this morning, and what Dr. Patton, this afternoon, reminded me that we have a long history of what we do without controlling law. And so, while I agree with some of what Charles said, I remain very skeptical that we can trust ourselves without the protection of the law captured in the Voting Rights Act.

I think the incentives are often too great for citizens to cheat. When Charles described the cat-and-mouse game of voting in our history, I was reminded of the long practice of the “Grandfather Clause” followed by the long practice of the governmentally sponsored white primaries, followed by the private association that took over the primaries, followed by the literacy test, followed the poll tax, and followed by the registrar who is not there or who will not allow people to vote. (36)

I think that we, as people, have proven that we are capable of broad deceptions and of very clever devices to achieve various kinds of ends, including an end of discriminating against other citizens. We had the right to vote; it was granted by the Fifteenth Amendment in 1870. (37) And, as Mr. Gray said this morning, because the right to vote was part of our Constitution, we never should have needed a Voting Rights Act. Some people in the country had to wait ninety-five plus years for the protection of the Federal Government. That should be unacceptable. That experience alone informs me, in my judgment, that we should not only extend the protections of Section 5, but we should also extend the protections of Section 203 (38) and Sections 6 through 9, (39) as described by Dr. Patton.

Again, we should think more broadly rather than more narrowly about what we can accomplish through this federal law. As I said this morning, for me the proposition is simple: Are we a nation committed to a “one-person-one-vote” principle, an equal vote for every citizen? Historically, some Americans have not been committed to that principle, and other Americans have had to wait for the law to catch up. Thank you.

Senator Sanders:

At the risk of doing Senator Mitchell some damage, I want to claim him as my friend. He is an outstanding Senator.

When passed, the 1965 Voting Rights Act contained an extraordinary remedy for seven years. (40) The feeling was that after seven years, it would not be needed. That extraordinary remedy is the pre-clearance provision.

The reason pre-clearance is so important is that without it, if a state or county or any other entity were to take a discriminatory action, then you would have to go into court to challenge it. Going to court may take two, three, four, or five years before it runs its course. Meanwhile, the damage is done by the discriminatory action while the case is in court. But when you have the pre-clearance provision, the changes do not go into effect until they have been submitted to the Justice Department and in fact have been pre-cleared. (41) The pre-clearance provision not only has a powerful impact on what is actually passed, but it stops a lot of bad proposals from ever coming to the table. If bad proposals came to the table and the pre-clearance provision were not there, it would take you two, three, four, or five years in court to challenge it.

As I previously said, there was a gross underestimation of the power of race in this entire situation. The legislators felt seven years would be enough. So in 1972, they came back and said that seven years obviously was not enough. (42) Then in 1982, they came back and said clearly it is worse than we had ever thought, so we need to extend it for twenty-five years. (43)

From all the experiences that I have had, many of those feelings towards race are still there. I have no doubt that if the pre-clearance provision expires in 2007, by 2008, Alabama, and many other places, will have a whole lot of laws proposed that will restrict voting rights in one way or another. Somebody said that times could change so we do not need it. A constitutional amendment is the most powerful law you can have, and if a constitutional amendment does not stop the taking away of some citizens’ rights to vote. The mere fact that the rest of the sections of the 1965 Voting Rights Act would be still in place simply will not protect it.

There are two other factors that create a problem here. Most African Americans are involved in the Democratic primary and the Democratic party. That makes it very easy to find ways to manipulate this entire situation. If you look at the situation in Florida in the 2000 presidential election and in Ohio in the 2004 presidential election, all kinds of actions were taken while the Voting Rights Act was in place that caused all kinds of damages. The citizens who control the voting process do not have to do big things. They can do things that appear insignificant, but have a very powerful impact. We still need an extension of the Act, because the feelings on race are still very powerful.

Now, the last point I want to make is that any issue dealing with race is a powerful issue, and any issue dealing with power is a powerful issue. When you deal with voting, you are dealing with both race and power, and whenever they come together, the effect is multiplied. If there is an all out effort to be able to have this power, and everybody who is in the process feels like that they ought to have it, then it becomes very easy to take all kinds of steps that would circumscribe the right to vote.

As I hand this microphone over, I have to say this: We have to go back and look beyond the issue with African Americans. From the very beginning of this country, we have had a powerful history of limiting the right to vote. At first, the king limited the right by granting only certain people the right to vote. Then some white men got to vote. (44) Then, they immediately circumscribed it by excluding other white men who did not own land. (45) Then, white men who had been in the militia got added, but women were still excluded. It took hundreds of years just for women to get the right to vote. (46) That is how powerful this thing is around this. It took several hundred years for African Americans, Indians, and others to get that right to vote.

I took a longer time than I meant to take, but I wanted to put the allure of power in perspective. There is something about power; whoever gets power, thinks they ought to have power. History has shown that those in power will use race as an element to control the right to vote in order to insure that they maintain the power. That is what would happen again if the Voting Rights Act is limited.

Senator Mitchell:

Thank you, Senator. I thank all of you panelists for those remarks, and I want to start with the questions now. I will call on the primary person to respond, and then each panelist is invited to participate, if they so desire. These questions have been submitted by the students from Faulkner University’s Jones School of Law.

Because of the nature of this first question, I am going to direct it to Mr. Gray. The first question is as follows: What are the specific obstacles that were posed to keep blacks from voting, and how burdensome were those requirements?

Fred Gray:

I think those of you who were here this morning saw Mr. Campbell’s presentation. He indicated on the screen some of those provisions. We talked about gerrymandering. We talked this morning about the Boswell Amendment. (47) There are just so many, and I think in my presentation this morning, I dealt with quite a few of those. There may be some other panelists here who want to deal with it.

Dr. Patton:

I would invite you to visit Trenholm Technical archives online. (48) You can see copies of the Literacy Test, which was the result of the Boswell Amendment. The various States and localities were different; Birmingham’s Literacy Test was just outrageous. Even if you had a degree in political science, you might not have been able to pass it. Montgomery’s Literacy Test was also quite difficult, but not as difficult as the test given in Birmingham.

I would like to share a little anecdote that has to do with the Poll Tax. White women also suffered under the Poll Tax because their husbands paid the Poll Taxes most of the time. Because he had paid, the husband would tell his wife how she should vote. I am sure there were lots of discussions in the household around election time. With that in mind, I would like you to know, especially since Alabama and Montgomery have such rich histories, how we got rid of the Poll Tax. The story centers on a woman named Virginia Durr. (49) Virginia was working for Attorney Craig in the Roosevelt Administration. Virginia was just dead set to get rid of the poll tax, because she thought it was anti-woman and was oppressive. She kept pestering Franklin, President Roosevelt, and especially Eleanor, who was her friend, to get rid of the poll tax. Virginia pushed Eleanor to tell Franklin to get rid of the poll tax. Eleanor would say to Virginia, “Franklin has told me to say you need to stop talking about this poll tax, because it doesn’t do anything but aggravate those Southerners down there. You know we’re about to go to War, and you know Southern citizens love fighting. We have got to keep them in line now, because we have got to go to World War II with Germany.” So it dawned on Virginia, and if you know her you know she was such a cuss of a lady; she was wonderful. She said, “Well go back and tell Franklin to get rid of the poll tax for all of the soldiers and the veterans.” And so Franklin put that in motion by executive order. (50) I just wanted to share that little history with you.

Senator Mitchell:

Thank you. Anyone else care to comment on this question? Senator Sanders.

Senator Sanders:

Yes, I just wanted to point out, even with the Voting Rights Act, how difficult it is to be able to exercise the full power of that right to vote. For example, let us consider the Voting Rights Act passed in 1965 and the situation in Lowndes County, Alabama the next year. I went to Lowndes County in 1966, a county that was seventy-six percent black, to try to help elect some African American candidates. Not one was elected, even with the Voting Rights Act in place, because there were so many other things that came into play. They put citizens off their land; they threatened citizens with all kinds of things that the Voting Rights Act did not cover.

In 1968, there was another effort to elect some blacks, but not one was elected. In 1970, there was yet another effort to elect; still not one was elected. In 1972, finally, one county commissioner was elected. (51) It took until 1982, with our entire combined struggle and all our combined fight, to elect a majority county commission of African Americans and Board of Education in a county that was seventy-six percent black. That was how powerful all of the other factors involved in suppressing the black votes were.

One of the things that still comes up and is still very prevalent is the use of laws that stop blacks from voting when they have a criminal record. (52) One example is the thought that black men beat their wives more than white men. The legislature made that one of the things that forfeits your right to vote. (53) I am against beating women period; I am against beating anybody, but that law was designed with that purpose in mind. Even crimes as minor as loitering can come into play. (54) Until recently, innocent people would be given probation if they pied guilty as a device to keep citizens off the voting rolls. Even today, when somebody is faced with the possibility of going to jail, and they know they are innocent, they may plead guilty even knowing they will lose their right to vote. I just wanted an opportunity to mention that. That may not be responsive to the question, but I may not get another chance to comment on the topic.

Senator Mitchell:

Thank you, Senator. Professor Fair, may I direct this next question to you? Do the election problems of the 2000, 2002, and 2004 elections prove that we have not made as much progress as we think and demonstrate that Section 5 of the Voting Rights Act needs to be extended? If Section 5 is extended, for how long should it be extended?

Bryan Fair:

I did not want to answer the questions directly. As I said this morning, it seems to me that the problems that we are seeing in districts and in counties throughout the country are related to the problems we have seen in the high profile coverage of Florida and Ohio. I am told by others in the Justice Department and other lawyers working for the Civil Rights Division of the NAACP Defense Fund that these problems are occurring across the country. While a particular state may apparently decide an election, because Florida apparently decided the election in 2000 and Ohio in 2004, the kinds of problems I described this morning are widespread and prevalent.

I assume that if we as a nation were committed to seeing people vote, it would actually happen. We have the resources; we have the intelligence. If we have the will to see that people could vote, we could have almost universal voting. But that is not what we have. We have people seeking to vote, who in effect do not get to exercise their franchise.

As Senator Sanders said just a moment ago, in some jurisdictions, if you are an ex-felon, you are permanently excluded from voting. (55) That is a problem that we can address as a nation. It seems to me if any issue goes to voting, we can address it as we consider a re-extension of the Voting Rights Act. We can expand our voting rights apparatus to include the felony voting problems Senator Sanders did not specifically mention, but referred to, as well as other kinds of obstacles that we still face in jurisdictions throughout the country.

In some places (and less so in Alabama today but in some jurisdictions), we still have at-large elections. Within at-large election jurisdictions, a majority of the people decides essentially the entire commission or the entire council. (56) This contrasts with single member districts, drawn usually around neighborhood lines, which insure some measure of individual representation or individual choice, and where smaller groups of people have an opportunity to elect a candidate with whom they can connect.

I am not suggesting that the problems we have observed in Florida and Ohio and elsewhere only relate to the Voting Rights Act. What I am suggesting is that we are currently having a constructive discussion, at least in some circles in the country, about the extension and whether or not it is essential to extend the Voting Rights Act. I am suggesting that the recurring problems Dr. Patton referred to and over a thousand different kinds of pre-clearance claims coming forward should concern all of us. It impacts millions of people in the United States.

My goal, at the end of the day, is to see that people who want to vote can vote. I do not have any other agenda. So, yes, I do think that what we have witnessed is evidence of a continuing problem necessitating the extension of the Voting Rights Act.

Jack Park:

Part of the question was, “What effect does Section 5 have on all of that?” Section 5 of the Voting Rights Act applies to standard practices and procedures. In the 2004 cycle, both the Democrats and the Republicans disqualified a candidate. The Republicans disqualified a white female and the Democrats disqualified an African American female. Both parties have pre-cleared rules and procedures. Each of the disqualified candidates filed suit, and they alleged Section 5 claims. What they were really complaining about was the application of a previously pre-cleared standard practice of procedure.

We were successful in the district court in persuading two separate district courts that this was not a Section 5 issue. It may be something else. It may be the denial of the right to vote on the basis of race or gender. But that is a different claim. That is not a Section 5 claim. And that is what I am pointing to in some of the litigation.

These examples are not really reflective of the purposes of the Section 5. The notion that extending the coverage of Section 5 will cure some of the problems that citizens are talking about is not necessarily the case.

Senator Mitchell:

All right, we have time for one more question from the audience, and then I am going to let our panel have a brief closing comment. After that, Dean Nelson is going to come forward and give a token of appreciation to our panelists, but let’s take this last question. Please?

Audience Member:

I am a third year law student here at Faulkner University’s Jones School of Law, and this question was given to me by Professor Thurston Reynolds to ask on his behalf. Should the Internal Revenue Code be amended to make clear that recoveries of damages or attorney’s fees under the Voting Rights Act, or other civil right statutes, be excluded from gross income?

Charles Campbell:

Just this last term, the Supreme Court held that settlement proceeds, or the attorneys’ fee component of settlement proceeds, are gross income to the plaintiff. (57) What is likely to happen is that it is going to get so that the plaintiff has to declare it as income. The market is going to correct over that. It is just a question of where it is allocated, but people know how to deal with that. The structure of any settlement is going to change. For Professor Reynolds’s question, I do not know that we really care, because one way or another, the market is going to correct for it.

Senator Mitchell:

I sincerely want to thank all of our panelists, and thank our audience, and thank those of you who supported this symposium, particularly this special session we had now. I would like to give any panelist who would care to, the opportunity to make a brief closing statement. We will start on that end with Senator Sanders and just go down the line.

Senator Sanders:

First, I want to commend this school for holding this panel. The right to vote is so precious that we have to find ways to protect it at every opportunity, and we cannot protect it, unless we are well informed. I think just holding this symposium, so people can talk about it and hear about it from citizens who are involved in that struggle in one way or another, is a great thing. The last thing has already been said. I believe that this right to vote, that this Voting Rights Act and Section 5, and other sections that would expire, need to be extended, and they need to be extended for twenty-five years. (58) I think the issues of race and power and voting are just so powerful that we cannot leave it to be treated otherwise.

Fred Gray:

The right to vote, as we all have said here today, is indeed precious. It is a right that we all cherish. It just happens to be one of the civil rights that for years, persons of color and other minorities have had to work really hard, suffer, and sometimes die that we obtain it. For those persons who have never been denied their constitutional right to vote, you do not really know how it is unless you really have that experience and, fortunately, you probably never will. But this Act has worked; it has proven itself. It is one of the most important acts that have been enacted. It is doing well. Let’s extend it for the next twenty-five years and hope it really improves conditions, not only in the voting rights field, but across the hoard.

Jack Park:

Thank you. I am honored and pleased to have joined you today, and I hope that I have made some contribution to this debate. As I indicated, but without providing a lot of details, the record over the last twenty-five years, in my judgment, may not support extension of the Act for another twenty-five years. The number of objections of the State of Alabama is small. The record in litigation, increasingly litigation over Section 5 issues, is diverted from its central core issue. Section 5 was designed to stop, as Charles Campbell put it, the “cat-and-mouse game” and to put an end to the state staying one-step ahead of the Federal Court. I do not think that, in the political system as it works now, we are likely to want to or to be able to replicate what was done in 1964. I think times have substantially changed.

Dr. Patton:

I want to thank this University’s Law School for inviting me and taking a risk. I am the only one up here who is not a lawyer. So, I was a little intimidated when I looked at all the panel and saw “Esquire” behind all of the names. But thank you, it is worthwhile having this discussion. The voting rights movement and the Voting Rights Act were not for black people only. It is for all Americans to make our democracy work for all of us. The vote is so precious, because it is not simply the passive thing of putting up a piece of paper or using an electronic machine; it is the arena where policies and procedures in all matters covering our nation begin. It all starts with our voting.

Charles Campbell:

Thank you, Dr. Patton. It is an honor for me to be up here at the same table with Mr. Gray. I hope that this discussion has been helpful, especially for the students. I know that I have learned a lot. I also hope that you will give some thought to the amount of time we have spent talking about the right to vote, which ends up being an unexercised right by nearly half of the population. (59) We need to be devoting time not just to the fairness of the votes but making sure that it does get exercised. Thank you.

Bryan Fair:

Thanks, Charles. I too want to thank the Law School, the University President for a wonderful lunch, the Law Review, and the Black Law Students Association for inviting me. As I said this morning, I am honored to share the dais with Mr. Gray and the other distinguished panelists. I am delighted that you would honor Mr. Gray with this civil rights seminar. He is one of the great American heroes living among us, and the opportunity to spend the morning and afternoon with him has been a personal honor.

As I said previously, I disagree with the panelists who questioned the need to extend the Voting Rights Act. I do not know how much history one needs. There are those on the Supreme Court, and I think some on the panel, who think that we need to document discrimination in our society based on relatively recent history. My view is quite different. We have had discrimination in our society, as Mr. Gray and other panelists have said, for hundreds of years without the protection of the law. What some of the panelists are suggesting is that we should go back to a time when we have fewer laws. If the discrimination returns, presumably we should place the burden on those who are most likely to be subject to that discrimination to re-file new lawsuits to make the case a second time. That seems grossly unfair to citizens of the United States, and I am opposed to that.

Senator Mitchell:

Let us all give our panelists a nice hand. Thank you all. At this time I am going to turn the microphone over to our Dean, Charles Nelson.

Dean Nelson:

Thank you. On behalf of the University and the Law School, particularly on behalf of the Black Law Students Association and the Law Review, we wanted to give each of our panelists just a small memento of the occasion.

Most of you know that we decided to dedicate this Civil Rights Symposium to Fred Gray for all of his work, on behalf of all of us, in assuring the civil fights of our citizens. One of the great honors I had was, shortly after I arrived in Alabama, to go to Atlanta during the American Bar Association meeting where Mr. Gray was presented the Thurgood Marshall Award, one of the highest awards that can be given to a Champion of Civil Rights. And so, we have this special memento here presented to Fred Gray, Sr.: “Thank you for your leadership and dedication to the community, 2005.”

Fred Gray:

Thank you, Dean. For those who were not here earlier when I made my presentation, I thanked the groups then. I have watched this school grow from when it was Alabama Bible College on North Street with some frame houses. (60) That goes back long before most of you realized. I am happy to say that I have seen it grow, and I have seen it develop. I am just happy to be a part of it, happy to be on its Board, and happy to see the progress it is making with this law school, particularly given the history of the one who founded it. It is indeed a privilege, and I want to thank you very much.

(1) While the Voting Rights Act was extended for twenty-five more years on July 17, 2006, at the time of this symposium several provisions of the Voting Rights were set to expire in August 2007. Section 5, which requires jurisdictions in sixteen states to demonstrate to the United States Department of Justice that any voting changes are not for a discriminatory purpose and will not have a discriminatory effect on minority voters before the changes can be made, would have expired in 2007. Section 203, which requires more than 450 counties and municipalities with large numbers of citizens who speak limited English to have access to ballots in other languages, was also set to expire. The examiner and observer portions of Sections of 6 through 9, which require the Department of Justice to appoint examiners and observers in polls covered by Section 5, will also expire. National Commission on the Voting Rights Act, http://www.votingrightsact.org/vra_info/infoimages/pdf/vrabackground.pdf (last visited April 23, 2006).

(2) Voting Rights Act of 1965, [section] 5, Pub. L. No. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. [section] 1973c (2006)).

(3) Section 5 applies to nine states, including Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia. It also applies to certain counties and municipalities within seven other states, including California, Florida, New York, North Carolina, South Dakota, Michigan, and New Hampshire. U.S. Department of Justice, Civil Rights Division, http://www.votingrightsact.org/vra_info/infoimages/pdf/ section5%20 cover.pdf (last visited April 23, 2006).

(4) Voting Rights Act of 1965, [section] 5, Pub. L. No. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. [section] 1973c).

(5) Section 5 expires on August 1, 2007. Id.

(6) Panama Canal Treaty, U.S.-Pan., June 16, 1978, 17 I.L.M. 817 (1978).

(7) North American Free Trade Agreement, U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M. 289 (1993).

(8) Mr. Gray was the attorney for the plaintiffs in Browder v. Gayle, 352 U.S. 903 (1956), and Gomillion v. Lightfoot, 364 U.S. 339 (1960).

(9) See Kelly v. Bennett, 96 F. Supp. 1301 (M.D. Ala. 2000).

(10) Interview by CSPAN-1 with Dr. Gwendolyn Patton, Archivist, Trenholm State Technical College Library, National Commission on the Voting Rights Act, in Washington, D.C. (April 1, 2005).

(11) Id. The National Commission on the Voting Rights Act met and conducted a “panel discussion over the pending reauthorization of the Voting Rights Act that was signed into law in 1965.” CSPAN-1 aired the segment nationally on April 1, 2005, Friday from 2:00 p.m. to 4:00 p.m. Eastern time. Hearing before the Southern Region on the Voting Rights Act, http://www.votingrightsact.org/hearings/31105hearing/agenda.html (2005).

(12) The University of Virginia in Charlottesville, Va. was founded in 1819 by Thomas Jefferson.

(13) Henry “Hank” Sanders is Chairperson of the Finance and Taxation Education Committee.

(14) ALA. CONST. art. VIII, [section] 181. ALA. CONST. of 1901, amend. 55 (1946), ruled unconstitutional by Davis v. Schnell, 81 F. Supp. 872 (S.D. Ala. 1949), amended by ALA. CONST. of 1901, amend. 91 (1951), repealed by ALA. CONST. of 1901, amend. 223 (1965)). Amendment 55 is also known as the Boswell Amendment; it changed the requirements for the registration of electors so that only those who could “understand and explain” any article of the U.S. Constitution could be registered to vote.

(15) See ALA. CONST. of 1901, amend. 132 (1957) (establishing a legislative committee with the purpose of altering or abolishing Macon County, if necessary), repealed by ALA. CONST. of 1901, amend. 406 (1982).

(16) The pre-clearance provision of Section 5 was extended in 1982 for an additional twenty-five years and was set to expire on November 1, 2007. See Public L. No. 97-205 [section] 2.

(17) Voting Rights Act of 1965, [section] 2, Pub. L. No. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. [section] 1973).

That section provides:

(a) 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 abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section

(b) A violation of subsection (a) of this section is established if, based on the totality of 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) of this section 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 extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

Id.

(18) See Voting Rights Act of 1965, [section] 5, Pub. L. No. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. [section] 1973c) (using a baseline of November 1, 1964).

(19) See generally Ralph Conner, Is the Voting Rights Act a Smokescreen?, NEW COALITION NEWS & VIEWS, Oct. 1, 2005, available at http://www.newcoalition.org/Article.cfm?artId =17892 (pointing out that in 1965, there were fewer than 300 black elected officials in the United States).

(20) See id (noting that today there are more than 150 black state senators and 450 black state representatives across the country).

(21) See supra note 3.

(22) Id.

(23) The Department of Justice filed suit against the city of Boston, alleging voter discrimination against Chinese speaking voters. In a settlement reached September 15, 2005, Boston agreed to provide ballots, registration notices, and other voting materials in Spanish, Chinese, and Vietnamese, as well as provide translators for voters and trained poll workers.

(24) Voting Rights Act of 1965, [subsection] 6-9, Pub. L. No. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. [subsection] 1973d-1973g).

(25) 42 U.S.C. [subsection] 1973a(a), 1973d, 1973f (2006). The Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437, established that the court should authorize the appointment of federal examiners to enforce constitutional voting guarantees ([section] 3(a)), that the U.S. Attorney General should certify the need for federal examiners in certain instances ([section] 6), and that observers should be commissioned to go to polling stations to ensure voters’ rights and voting tabulations were carried out ([section] 8).

(26) Voting Rights Act of 1965, Amendments, Pub. L. No. 94-73, [section] 203, 89 Stat. 400 (codified as amended at 42 U.S.C. [section] 1973aa-1a (1992)). That section provides in part:

(c) Requirement of voting notices, forms, instructions, assistance, or other materials and ballots in minority language. Whenever any State or political subdivision … provides any registration or voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots, it shall provide them in the language of the applicable minority group as well as in the English language: Provided, That where the language of the applicable minority group is oral or unwritten or in the case of Alaskan natives and American Indians, if the predominant language is historically unwritten, the State or political subdivision is only required to furnish oral instructions, assistance, or other information relating to registration and voting.

(d) Action for declaratory judgment permitting English-only materials. Any State or political subdivision subject to the prohibition of subsection (b) of this section, which seeks to provide English-only registration or voting materials or information, including ballots, may file an action against the United States in the United States District Court for a declaratory judgment permitting such provision. The court shall grant the requested relief if it determines that the illiteracy rate of the applicable language minority group within the State or political subdivision is equal to or less than the national illiteracy rate.

Id.

(27) The Latin Motto “E Pluribus Unum” means “Out of one, many.” The motto was selected by the first Great Seal committee in 1776, at the beginning of the American Revolution. In 1956, “In God We Trust” replaced “E Pluribus Unum” as the national motto.

(28) See Terry v. Adams, 345 U.S. 461 (1953) (invalidating a “white-only” pre-primary). In white-only primaries, a “private” political organization would hold a pre-primary to select the candidate for the ballot and only whites were allowed to vote. The selected candidate would then have the virtually undivided support of the white population in the official primary and would often run unopposed in the official primary, thus effectively negating the votes of black citizens.

(29) See generally Burton D. Wechsler, Black and White Disenfranchisement: Populism, Race, and Class, 52 AM. U. L. REV. 23, 36-57 (2002) (discussing Alabama’s “grandfather clause” which refers to a temporary provision in the Alabama Constitution of 1901, which bestowed voting eligibility on males whose ancestors had served in the American military).

(30) See Thornburg v. Gingles, 478 U.S. 30, 46-47 (1986) (discussing the dilution effect on minority votes in at-large districts in comparison to single-member districts). At-large districts dilute the minority vote by “the dispersal of blacks into districts in which they constitute an ineffective minority of voters or from the concentration of blacks into districts where they constitute an excessive majority.” Id. at n. 11.

(31) Voting Rights Act of 1965, Pub. L. No. 89-110, [section] 2, 79 Star. 437 (codified as amended at 42 U.S.C. [section] 1973 (2006)).

(32) See U.S. CONST. amend. XIV, [section] 1 (providing that “[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”); see U.S. CONST. amend. XV, [section] 1 (providing that “[t]he 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”); see U.S. CONST. amend. XIII, [section] 1 (providing that [n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction”).

(33) Voting Rights Act of 1965, Pub. L. No. 89-110, [section] 5, 79 Stat. 437 (codified as amended at 42 U.S.C. [section] 1973c (1975)).

(34) See supra note 3.

(35) This often quoted line is originally from an opinion authored by Justice Holmes in New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921). In that tax case, Justice Holmes and the Court refused to address questions of law, which had been “disposed of” in a previous decision. Id.

(36) See supra notes 32-34.

(37) See U.S. CONST. amend. XV (providing that “[t]he 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”).

(38) Voting Rights Act of 1965, Amendments, Pub. L. No. 94-73, [section] 203, 89 Stat. 400 (codified as amended at 42 U.S.C. [section] 1973aa-la (1992)).

(39) Voting Rights Act of 1965, [subsection] 6-9, Pub. L. No. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. [subsection] 1973d-1973g).

(40) The pre-clearance provision of Section 5 was originally supposed to expire on November 1, 1972. See Voting Rights Act of 1965, Pub. L. No. 89-110, [section] 5, 79 Stat. 437 (codified as amended at 42 U.S.C. [section] 1973c).

(41) See Voting Rights Act of 1965, Pub. L. No. 89-110, [section] 5, 79 Stat. 437 (codified as amended at 42 U.S.C. [section] 1973c) (providing that [w]henever a State or political subdivision … shall enact or seek to administer any voting qualification or prerequisite to voting … such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color….).

(42) The pre-clearance provision of Section 5 was extended in 1972 for an additional ten years and was set to expire on November 1, 1982. See Public L. No. 94-73 [section] 204.

(43) The pre-clearance provision of Section 5 was extended in 1982 for an additional twenty-five years and was set to expire on November l, 2007. See Public L. No. 97-205 [section] 2.

(44) The 1790 Naturalization Law explicitly stated that only “free white” immigrants can become naturalized citizens. Only naturalized citizens were allowed to vote. Voting Rights History, http://www.crmvet.org/info/votehist.htm (last modified Nov. 23, 2004).

(45) The last state to finally eliminate the property qualification was North Carolina in 1856. Voting Rights History, http://www.crmvet.org/info/votehist.htm (last modified Nov. 23, 2004).

(46) Women were not given the right to vote until the Nineteenth Amendment, which pro vided that 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 sex.” U.S. CONST. amend. XIX.

(47) See ALA. CONST. art. VIII, [section] 181. ALA. CONST. of 1901, amend. 55 (1946), ruled unconstitutional by Davis v. Schnell, 81 F. Supp. 872 (S.D. Ala. 1949), amended by ALA. CONST. of 1901, amend. 91 (1951), repealed by ALA. CONST. of 1901, amend. 223 (1965).

(48) Trenholm State Technical College Archives, http://www.trenholmtech.cc.al.us/library/ (last visited April 20, 2006).

(49) For additional information on Virginia Durr, visit http://www.wellesley.edu/Anniversary/durr.html (June 12, 2000).

(50) On June 25 1941, President Roosevelt signed Executive Order 8802 creating the Fair Employment Practices Committee (FEPC). The order banned racial discrimination in any defense industry receiving federal contracts by declaring “there shall be no discrimination in the employment of workers in defense industries or government because of race, creed, color, or national origin.” The order, however, did not entirely prohibit poll taxes. Despite constant lobbying by Eleanor Roosevelt, the poll tax continued to operate in many regions until 1964 when it was outlawed by the 24th Amendment and extended to state elections by the United States Supreme Court in Harper v. Virginia Board of Elections, 383 U.S. 663 (1966).

(51) In 1972, Charles Smith, Sr. became the first African American County Commissioner to be elected in Lowndes County, Alabama. See Alabama Legislature, http://www.legislature.state.al.us/searchableinstruments/ 2002RS/Resolutions/HR398.htm (last visited April 23, 2006).

(52) See ALA. CONST. of 1901, Art. VIII, [section] 182 (providing for the disenfranchisement of persons convicted of “treason, murder, arson, embezzlement, malfeasance in office, larceny, receiving stolen property, obtaining property or money under false pretenses, perjury, subornation of perjury, robbery, assault with intent to rob, burglary, forgery, bribery, assault and battery on the wife, bigamy, living in adultery, sodomy, incest, rape, miscegenation, crime against nature, or any crime punishable by imprisonment in the penitentiary, or of any infamous crime or crime involving moral turpitude”). That section was ruled unconstitutional by Hunter v. Underwood, 471 U.S. 222, 227 (1985) (holding that section 182 of the Alabama Constitution violated the Equal Protection Clause of the Fourteenth Amendment).

(53) Id.

(54) Id.

(55) Id.

(56) See supra note 30.

(57) See Commissioner v. Banks, 543 U.S. 426, 430 (2005) (holding that “when a litigant’s recovery constitutes income, the litigant’s income includes the portion of the recovery paid to the attorney as a contingent fee”).

(58) See supra note 1.

(59) In the 2004 Presidential Election, only sixty-four percent of voting age citizens actually voted. U.S. Census Bureau, Voting and Registration in the Election of November 2004, http://www.census.gov/prod/2006pubs/p20-556.pdf (March 2006).

(60) Alabama Bible College was founded in 1942.

Fred Gray, Sr., John (Jack) Park, Dr. Gwendolyn Patton, Charles Campbell, Bryan Fair, and Senator Henry (Hank) Sanders.

Moderated by Senator Wendell Mitchell

COPYRIGHT 2006 Thomas Goode Jones School of Law

COPYRIGHT 2008 Gale, Cengage Learning