The Leadership Conference on Civil and Human Rights

• Table of Contents
• Acknowledgements
• Foreword
• Introduction
• I. Voting Rights
• II. Education
• III. Employment Discrimination
• IV.Fair Housing
• V. Public Accommodations
• VI. Policing the Police and Prosecuting the Klan
• Recommendations
  • A. De-Politicize the Civil Rights Division
  • B. Promote Access to Voting
  • C. Enforce Fair Housing Laws
  • D. Ensure Compliance with the Americans with Disability Act (ADA)
  • E. Combat Employment Discrimination
  • F. Promote and Maintain Integrated, High Quality Schools
  • G. Prosecute Police Misconduct and Hate Crimes
• Conclusion

Voting Rights

We cannot, we must not, refuse to protect the right of every American to vote... But even if we pass this bill, the battle will not be over. What happened in Selma is part of a far larger movement which reaches into every section and State of America...It is all of us, who must overcome the crippling legacy of bigotry and injustice. And we shall overcome.

- President Lyndon Baines Johnson, 1965 ⁶

In 2004 and 2005, Forbes magazine ranked Secretary of State Condoleezza Rice the most powerful woman in the world. A Phi Beta Kappa at age 19, with a doctorate degree in the politics of the former Soviet Union, she was the first female, first minority, and youngest Provost at Stanford University before serving in President George H.W. Bush's administration as Soviet and East European advisor. She served the current President Bush first as National Security Advisor and then Secretary of State. As the first African-American woman and the second woman ever to head the United States Department of State, Secretary Rice's race and gender are always noted but rarely invoke surprise. But 50 years ago, an African-American Secretary of State, from Birmingham, Alabama, would have been impossible.

In mid-twentieth century America, African Americans were regarded both socially and politically as second-class citizens. Prior to the Civil War, Blacks were disenfranchised throughout the states - Blacks in the South were still enslaved and their Northern counterparts were, for the most part, denied the rights of citizenship. Latino voters faced similar barriers to voting in Texas and other parts of the Southwest, as did Native American and Asian-American voters in the West. Fifty years ago, the vast majority of Blacks living in the South, like Secretary Rice's parents in Birmingham, Alabama, were barred from voting.

Americans born after the civil rights era of the 1960s may find it difficult to imagine that there was ever a period in which advocating the right to vote for African Americans and other racial minorities provoked controversy. Yet, in Alabama and throughout the South, it generated widespread hostility and even violence. In 1963, Birmingham Police Commissioner Eugene "Bull" Connor ordered police to open fire hoses on hundreds of young, nonviolent Blacks - both children and adults - who were protesting for their civil rights. Later that year, members of the Ku Klux Klan planted a dynamite bomb in the basement of Birmingham's 16th Street Baptist Church, a center for those resisting segregation and demanding the vote. The explosion killed four young girls, including one of Secretary Rice's classmates - 11-year old Denise McNair.

Far from intimidating the Black community and its many supporters, the deaths of innocent children shocked the nation and the world. Then, in March 1965, on a bridge outside Selma, Alabama, civil rights activists, led by Dr. Martin Luther King, Jr., and others, took to the streets in a peaceful protest for voting rights. They were met with clubs and violence. Many were beaten and severely injured, including a young activist named John Lewis - now Congressman Lewis. But the activists did not march in vain. Television brought this conflict of angry violence against peaceful, moral, protest into living rooms across America. Five days later, President Johnson announced to a joint session of Congress that he would bring them an effective voting rights bill. Echoing the spiritual anthem of the civil rights movement, he said simply, "We shall overcome." Shortly thereafter, Congress passed the Voting Rights Act.

This landmark legislation, called the most effective civil rights law ever enacted, would not have passed without the stirring words of Martin Luther King, Jr., the daily local struggles of civil rights activists, and the congressional arm-twisting of President Johnson. But it was the early cases under the 1957 and 1960 Civil Rights Acts, brought both by the Civil Rights Division and a core of private civil rights lawyers, that ultimately shaped the contents of the 1965 Voting Rights Act. ⁷

From 1960 to 1964, Division attorneys traveled throughout the South to investigate voting discrimination and compiled overwhelming evidence of inequity. In a county-by-county and state-by-state campaign in Alabama, Georgia, Louisiana, and Mississippi, the Division challenged voting discrimination in federal courts. The Division faced hostile judges, defiant state and local officials, and widespread tactics of violence and intimidation toward Blacks attempting to register to vote.

In statewide cases against Louisiana and Mississippi in 1961 and 1962, respectively, the Civil Rights Division argued that some state laws were designed with discriminatory intent while others had the effect of preventing Blacks from voting. In Mississippi, for example, state provisions required Blacks applying to vote to copy and interpret provisions of the state constitution to the satisfaction of the White registrars, which allowed them to summarily deny qualified Black residents the opportunity to register. In Louisiana, District Judge John Minor Wisdom ruled that parishes could no longer give Blacks any tests more onerous than those that had previously been given to Whites - which generally meant no tests at all. ⁸ The Supreme Court upheld the decision, ruling that a court not only has "the power but the duty to render a decree which will, so far as possible, eliminate the discriminatory effects of the past as well as bar like discrimination in the future." ⁹

Even when the Division obtained favorable rulings from some federal judges, striking down discriminatory voting practices, new barriers were quickly put into place. Those struggling for voting equality could not keep up with those fighting against it. The limits of the 1957 and 1960 Civil Rights Acts and the inability of the Division's case-by-case litigation to secure and enforce the necessary changes to local practices, pushed Congress to consider more rigorous, ground-breaking provisions in the final voting rights bill, including Section 5 of the Act, which required states and counties with the most egregious histories of entrenched discrimination against minority voters to have their voting changes pre-approved by the federal government before they could be implemented. The Act also prohibited discrimination against racial minorities in voting and authorized the Department of Justice to appoint federal examiners to register voters where local officials refused and to monitor whether elections were being conducted fairly. Civil Rights Division lawyers, particularly Harold Greene - who later became a federal judge in D.C. - drafted the initial proposal and language to be included in the final version of the Voting Rights Act.

On August 6, 1965, the day President Johnson signed the Voting Rights Act into law, he directed the Attorney General to file suit against the Mississippi poll tax. ¹⁰ The Attorney General immediately sent letters to every county registrar in every state covered by the Voting Rights Act to note the Act's suspension of discriminatory devices previously used to bar Blacks from voting. The following week, the Civil Rights Division brought poll tax suits against Texas, Alabama, and Virginia, and federal examiners were dispatched to 14 counties to register Black voters. During that first week alone, federal examiners registered over 15,000 Blacks, and another 27,000 by the end of the first month. ¹¹ As of June 30, 1966, over 117,000 African Americans were registered by federal examiners in Alabama, Mississippi, Louisiana, and South Carolina. Within 10 years of passing the Voting Rights Act, Black registration in the Deep South had increased by over 1 million people.

The priorities of the Civil Rights Division's Voting Section have shifted periodically since passage of the Voting Rights Act, concurrent with Supreme Court interpretations of its meaning. The Supreme Court ruled in 1969, for instance, that all voting changes in covered jurisdictions - including redistricting and reapportionment - were subject to Section 5 preclearance; is also ruled in 1973 that the 14th Amendment prohibited "vote dilution." ¹² In light of these decisions, the range of objections the Voting Section could raise - which subsequently included all voting changes with a discriminatory purpose or effect - became a powerful lever in prodding many jurisdictions to abandon at-large election systems, discriminatory annexations, and racial gerrymandering.

In 1980, however, the Supreme Court dealt voting rights enforcement a significant setback. In City of Mobile v. Bolden, ¹³ the Court held that in order to prove voting discrimination under Section 2 of the VRA, the plaintiff had to show that the policy or procedure in question was motivated by a discriminatory purpose. This temporarily limited the range of election practices to which the Voting Section could legally object. Thankfully, when it renewed the Voting Rights Act in 1982, Congress overturned the Bolden ruling, making clear that it is unnecessary to prove that certain registration and voting practices have been established with discriminatory intent. Instead, a Section 2 violation occurs if a court concludes that a voting practice has the effect of discriminating against minority voters, whether or not it was motivated by bias. The re-establishment of the discriminatory "results" test as the standard for bringing a Section 2 challenge again allowed the Civil Rights Division to intervene more effectively to combat discriminatory election policies.

From the late 1970s through the 1980s, the Section 5 preclearance requirement and the Voting Section's litigation under Section 2 of the Voting Rights Act curbed efforts to dilute minority voting strength. Following both the 1980 Census and the 1990 Census, Division efforts yielded remarkable gains in the ability of minority voters to participate in the political process. After the 1990 Census and the resulting round of redistricting, the number of Black and Latino representatives in Congress and in state houses across the country increased dramatically. Intervening when redistricting had a discriminatory purpose or effect has made voters increasingly able to elect candidates of their choice at every level of government. ¹⁴

While some voting enforcement has continued in recent years, most notably to ensure that the minority language provisions of the Act - Sections 203 and 4(f)(4) - are vigorously prosecuted, much of the core work of the Voting Section has been significantly diminished. In the last several years, the Section has brought only a handful of Section 2 cases on behalf of African Americans, Hispanics, Asian Americans, and Native Americans. Though Congress added the National Voter Registration Act (NVRA) - also known as the "Motor-Voter" bill ¹⁵ - to the Civil Rights Division's enforcement arsenal in 1993, the Section has been pressing states to purge the voter rolls rather than ensure that states allow registration at social service agencies. Moreover, in pursuing the newest voting legislation, the Help America Vote Act (HAVA), a political appointee in the Division urged Arizona to apply the most cramped interpretation. This restrictive view of the new law would have limited voters' opportunities to use provisional ballots, thus defying the position of the Election Assistance Commission, which has the principle role in implementing HAVA.

Ensuring the voting rights of all Americans in the twenty-first century demands more innovative tactics and approaches than were required during the period of overt segregation and racial discrimination. The Civil Rights Division, in changing its approach, must not stray from its original mission to ensure political equality.

6. President Lyndon B. Johnson. Speech Before Congress on Voting Rights. 15 March 1965.

7. See Landsberg, Brian K. Free at Last to Vote: The Alabama Origins of the 1965 Voting Rights Act. Lawrence: University Press of Kansas, 2007.

8. United States. v. Louisiana, 225 F. Supp. 353 (E.D. La. 1963), aff'd 380 U.S. 145 (1965).

9. United States. v. Louisiana, 380 U.S. 145 (1965).

10. Twice earlier, in 1937 and in 1951, the Supreme Court had upheld the poll tax as constitutional. It overruled these cases in 1965 in Harper v. Virginia, 383 U.S. 663 (1965).

11. In the first year after the Act went into effect, the Attorney General dispatched examiners to 43 counties and observers to another 23.

12. White v. Register, 412 U.S. 775 (1973).

13. 446 U.S. 55 (1980).

14. See Busbee v. Smith, 549 F. Supp. 494 (1982), regarding Georgia's legislative redistricting in 1981. See Garza v. County of Los Angeles, 756 F. Supp. 1298 (C.D. Cal. 1990), regarding Section 2 litigation in L.A. County that resulted in the creation of a Hispanic majority district and the first Hispanic County Commissioner in 1992.

15. The NVRA requires states to provide voter registration materials to departments of motor vehicles and offices that provide public assistance and/or disability benefits.