Volume 2, Number 1
JUSTICE CONTINUES ITS ATTACK ON THE VOTING RIGHTS ACT
Having failed in Congress and the Supreme Court to weaken the protections of the Voting Rights Act, the Justice Department is trying again, this time by changing its own Section 5 regulations. Under the Voting Rights Act, jurisdictions that are covered by Section 5 (those with a history of low registration and voting) must submit all proposed electoral changes to the Department, which is required to veto any that are discriminatory. In a speech to the American Political Science Forum on August 29, William Bradford Reynolds, Assistant Attorney General for Civil Rights, stated that the Department of Justice will no longer object to some voting changes that have a discriminatory result.
The new policy means that the Justice Department, in reviewing proposed voting changes from jurisdictions with a history of discrimination, will allow a voting change that has a discriminatory result on minority voters if it replaces a similarly discriminatory practice and the extent of the discrimination remains the same or decreases somewhat. This is contrary to directions given by Congress in amending the Voting Rights Act in 1982. In the 1982 amendments, Congress made clear that a "results standard" was to be used in judging proposed election changes under Section 5 as well as other types of electoral practices covered by Section 2 of the law. Application of that standard would cause Justice to object to a proposed voting change that provides minority voters with less opportunity then other members of the electorate to participate in the political process and to elect representatives of their choice. A proposed change would succeed or fail on its own, not through a comparison with the practice it would re place.
Frank R. Parker, Director, Voting Rights Project, Lawyers' Committee for Civil Rights, called the plan "a dramatic retreat from the policy the Justice Department has been implementing since 1982. It's a flouting of the intent of Congress. It would mean the Justice Department would be approving a large number of racially discriminatory voting law changes that would violate the Voting Rights Act" (Wash Post, Aug., 30, 1986, Al). And, the only recourse minority voters would have is to challenge the practice in court, during which time the discriminatory practice would remain in effect. Section 5 was enacted in 1965 to deal effectively with the tactics of some Southern jurisdictions which kept black citizens disenfranchised by replacing one discriminatory practice with another as soon as the first was struck down by the courts. Under Section 5, a change is not to go into effect if DOJ determines that it is discriminatory. Further, under Section 5, the burden is on the jurisdiction to prove that the practice is no t discriminatory. In litigation the burden is on the plaintiff minority voters to prove discrimination.