The 15th Amendment, ratified in 1870, provides that "The rights 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." As with so many sweeping promises, it wasn't until the Voting Rights Act was passed in 1965 that these voting guarantees began to have substantial impact. The act made illegal certain tests (literacy, property, good character, etc.) that were used to deny blacks access to the electoral process, but it went even further: it required that those areas that had utilized such tests or devices (primarily the Old Confederacy) now "pre-clear" any proposed changes in their election laws with the Deparment of Justice or, alternatively, secure approval for them from the U.S. District Court in the District of Columbia. This extreme measure of requiring Justice Department pre-clearance of election law changes was held constitutional by the Supreme Court in subsequent test.
But since pre-clearance applies only to a few "selected" areas of the country, and because in 1970 and again in 1975 Congress chose to prolong its mandate by extending a virtual prohibition against escape from the act's coverage (or "bail-out") until Aug. 6, 1982, the question that now confronts Congress is this: shall we extend the mandatory pre-clearance for these "selected areas" another 10 years (as Rep. Peter Rodino's bill does), or is 17 years in the political penalty box enough?
As the ranking Republican member of the House Judiciary Committee's subcommittee on civil and constitutional rights, I came to this issue with the expressed conviction that, indeed, 17 years was enough, and that if voting rights abuses persisted in these areas, then resort to court action was a sufficient remedy under the act. It was my strong opinion that pre-clearance is an administrative process was an unwarranted intrusion on the federal system -- a system that upholds state sovereignty and insists that states and local political subdivisions ought not to be treated as branch offices or agencies of the federal government in Washington.
Other questions troubled me as well -- whether the ends of justice on such an important issue are truly served by bypassing the federal courts and resorting to the expeditious and even summary process of administrataive pre-clearance. What about politics? Doesn't this power in the hands of employees of the Justice Department lend itself to politicization?
All of thse considerations helped shape my initial hostility to another 10-year extension and my preference for substituting access to our federal court system as the proper corrective for voting rights abuses.
Then came the hearings. Witness after witness testified to continuing and pervasive denials of ready access to the electoral process for blacks. As I listened to testimony before the subcommittee, I was appalled by much of what I heard.
Witnesses in Montgomery, Ala., described an atmosphere that was painfully saturated with discrimination. Maggie Boseman of Aliceville, Ala., complained that in many of the predominatly black counties of Alabama, there is no such thing as a "secret" ballot: voters are forced to fill out their ballots on a table, in the presence of white poll-watchers. There are no booths, no curtains, no efforts to provide privacy. She also said that policemen take photographs of persons who attempt to assist illiterate black voters, and that this has a considerable chilling effect.
Sheriff Prince Arnold, of Wilcox County, Ala., testified that, in 1978, 72 federal observers were called in to monitor the election, which he won. State troopers were also present. Arnold claimed both were necessary to ensure that black voters were able to proceed safely to the polls. Nevertheless, there was intimidation. Frequently, he said, black voters were turned away or discouraged from participating by white polling officials. One such person, Arnold recalled, said, "Old lady, if you can't see, if you can't hear, you should have stayed at home." Witnesses told of "re-identification bills" designed to affect predominatly black counties while sparing white voters the inconvenience.
Michael Brown, field coordinator for the Virginia NAACP, outlined the voter registration procedures in rural areas of Virginia, where many black residents work in the fields during the day. In Pulaski County, he testified, the only place to register is the registrar's office, and then only during regular office hours. In Matthews County, the sole registration facility is in a furniture store, and there is no sign or other notice to indicate that voters may register there. Furthermore, Brown noted that there are "17 cities and counties [in Virginia] where the general registrar's office is open only one day a week" and most of them "are closed lduring the normal lunch hour." In Emporia, Va., where blacks make up 40 percent of the population, the registrar's office "is closed during some regularly scheduled hours."
In some areas, re-identification of voters can only take place between the hours of 9 a.m. and 4 p.m. City re-identification occurs in one location, and county re-identification in another, some distance away.
Victor McTeer, of Greenville, Miss., noted that the Mississippi delta has the highest concentration of blacks outside of Africa and that there continues to exist a "clear-cut pride on the part of many whites that so few whites could control so many blacks." One state, South Carolina, has a 38 percent black population, but no black state senator.
The cumulative effect of this testimony gradually forced me to several conclusions:
Blacks have made considerable progress toward significant participation in the South's political process since passage of the Voting Rights Act in 1965. For example, Alabama's black registration in 1964 was 23.1 percent, but by 1976 it was 58.1 percent. Greatest progress has been in Mississippi, where only 6.8 percent of blacks were registered to vote in 1964 but 67.4 percent were registered in 1976. In the same time span, South Carolina's 38.8 percent has increased to 60.6 percent, and several major cities have elected black majors, including Atlanta, Richmond, Roanoke and Birmingham. In the six southern states now covered by the act, there were 156 black public officials; today there are 1,803. Indeed, we are halfway up the mountain -- but we have some climbing to do.
Court proceedings, desirable as they are, are too slow and too costly to protect the great number of people -- most without adequate resources -- who still need protection.
Administrative pre-clearance hasn't always worked, but it has improved things in many areas. It could work even better if the penalty section (Sec. 12) of the act were employed.
The act already, in many respects, has effective nationwide application. For example, under Sec. 3(c), court action can be brought anywhere in the country, and if voting rights abuses can be shown, the court can order pre-clearance as one of its remedial actions.
Those jurisdicitons presently covered, in all justice, ought to have available to them a procedure whereby they can seek a judgment from an appropraite federal court upon proving that for the past, say, 10 years they have complied fully with the letter and spirit of the law and hence no longer shall be required to pre-clear their election law changes. This would recognize compliance where it has occurred and provide an incentive to comply where improvement is still needed.
I still believe in the federal system. I regret and resist the accretions of power to the federal government that have occurred in recent years. I want to reverse the flow of power and responsibility back to local governments, as I believe there is a real danger in increasing the authority of the federal government over every aspect of our lives. Concentrations of power have always been dangerous, whether in business, labor or government. They are particularly invidious in government, as history keeps teaching us.
And yet, and yet -- who can deny the right to vote is superior even to the right of free speech? What good is all the political rhetoric if you can't express your ideas and values at the polls?
As long as the majestic pledge our nation made in 1870 by ratifying the 15the Amendment remains unredeemed, then its redemption must come first.