The Struggle for Equal Voting Rights
45 Years of the Voting Rights Act BY PATTY FERGUSON-BOHNEE
This is a new recurring feature
T
that sheds light on remarkable he landmark Supreme Court deci- education, public facilities and the voting
historical events whose anniver- sion in Brown v. Board of box for minorities across the country.
sary is upon us. In Law’s Attic, Education1 condemning race dis- Although the Fifteenth Amendment pro-
we will publish occasional short
essays on noteworthy cases, laws
crimination set the stage for the Civil vides that no citizen shall be denied the right
or legal events whose anniversary Rights Movement. This activism sought to to vote based on race, color or previous
is ripe—whether they occurred break down the racial barriers that servitude,3 enforcing this right for minority
10 years ago, or 500. If you have remained from the Post-Civil War Era. voters took almost a century. Although con-
suggestions for legal historical
events that we should cover in
As a child growing up in rural Louisiana, stitutionally, African Americans were part of
2011, contact the editor at I experienced firsthand the benefits of these the political framework,4 allowing them to
arizona.attorney@azbar.org. changes. For example, when I entered first vote would result in a redistribution of polit-
grade, it was the first year black and white ical power and resources. To preserve the
This month our author examines
the Voting Rights Act— schools integrated—more than 25 years status quo, states and local governments
45 years old this year. after the Supreme Court decided Brown.2 implemented various procedures to prevent
Change was deliberately slow, but the Civil blacks and other minorities from
Rights Movement transformed access to voting. Tactics such as literacy tests,
PROFESSOR PATTY FERGUSON-BOHNEE is the Director of the Indian
Legal Clinic at the Sandra Day O’Connor College of Law. She has sub-
stantial experience in Indian law, election law and policy matters, voting
rights and status clarification of tribes. She has testified before the United
States Senate Committee on Indian Affairs and the Louisiana State
Legislature regarding tribal recognition. Professor Ferguson-Bohnee
serves as the Native Vote Election Protection Coordinator for the State of
Arizona and has testified before Congress regarding Indian voting issues.
26 A R I Z O N A AT T O R N E Y N O V E M B E R 2 0 1 0
poll taxes, intimidation and violence were of Arizona’s Hispanic American and Native Tester’s Montana election in 2006.
used to dissuade minority voters across the American voters. Native Americans were not Today, the Voting Rights Act is still rele-
South from registering to vote. afforded Fifteenth Amendment privileges vant. It continues to spur litigation by pri-
In the early 1960s, places such as Dallas until the passage of the Indian Civil Rights vate parties, governments and the U.S.
County, Alabama, had low minority voter Act in 1924. However, shortly thereafter, Department of Justice Civil Rights Division.
registration; African American registration in the Arizona Supreme Court held that Native The framework of the act is still being tested
Dallas County was one percent. Active voter Americans were not allowed to register to when states refuse to abide by its provisions,
registration drives in Dallas County led to vote because the state constitution prohibit- resulting in litigation. Furthermore, where
arrests, firings, beatings and death threats. ed individuals under guardianship from vot- measures such as voter intimidation, lack of
The impetus for change happened in 1965, ing.6 It would not be until 1948 that the resources on Election Day, the purging of
when a march for African American voting Arizona Supreme Court would overturn voter rolls, and voter identification laws
rights in Selma (Dallas County), Alabama, this decision, when two Indian veterans attempt to suppress minority voters, the act
turned violent. State and local police unsuccessfully attempted to register to seeks to ensure equal access to the polls.
attacked 600 marchers with billy-clubs and vote.7 Although the decision was a victory, at With redistricting right around the corner,
tear gas. Images from the attack by law the time, the majority of Native Americans the act will be key to preventing voter disen-
enforcement on nonviolent protesters could not meet Arizona’s literacy require- franchisement.
helped to spur a sentiment that change was ment. This obstacle was finally lifted with It is fair to say, the federal protections and
needed. the ban on literacy tests in 1970.8 And in rights afforded by the Voting Rights Act
In response to the violent attack, 1975, the act was amended to extend pro- have strengthened minority participation in
Congress passed the Voting Rights Act. This tection to language-minority voters, such as all aspects of elections. Only the test of time
landmark legislation sought to ensure that Asian Americans, Hispanic Americans and will tell if the framework will succeed in pro-
disenfranchised African Americans in the Native Americans. With the language provi- viding equal voting rights to all citizens. AZ AT
South had an opportunity to vote and partic- sions in place, the number of minority vot-
ipate in the electoral process. Summarily, the ers participating in Arizona elections has
act prohibited voting qualifications that deny dramatically increased. However, this hasn’t
endnotes
the right to vote on the basis of race, and it stopped challenges to the eligibility of
required certain jurisdictions to obtain pre- Indian voters or candidates.9 1. 347 U.S. 483 (1954).
clearance of voting changes to ensure that As the political landscape has changed 2. This was also 17 years after the Civil Rights
they did not have a discriminatory purpose. since 1965, the protections afforded by the Act of 1964 was passed, declaring segrega-
The activities in the South focused on act have resulted in a dramatic increase of tion illegal.
African American voters. But in the West, minority voter registration. This is further 3. U.S. CONST. amend. XV.
4. The Reconstruction Amendments extend-
states such as Arizona had prohibited Native illustrated by the fact that more minority
ed citizenship and the right to vote to for-
Americans and Hispanic Americans from voters have become active in the political mer slaves. U.S. CONST. amend. XIV; U.S.
voting. As a result of voter discrimination process, resulting in the successful election of CONST. amend. XV.
against those groups, Arizona still must minority candidates at all levels of govern- 5. 446 U.S. 55 (1980).
request preclearance for proposed voting ment. In its support of the 2006 amend- 6. Porter v. Hall, 34 Ariz. 208 (1928).
changes, under Section 5 of the act. ments, the Congressional Black Caucus rec- 7. Harrison v. Laveen, 67 Ariz. 337 (1948).
Although the act was passed in 1965, ognized that the act serves “as a significant 8. Arizona and other states challenged the
constitutionality of the prohibition of liter-
other methods were used to limit the effec- catalyst for the increase in black congression-
acy tests and lost. Oregon v. Mitchell, 400
tiveness of the minority vote, such as gerry- al” members.10 U.S. 112 (1970).
mandering, annexations, adoption of at- Minorities also have been successful in 9. Shirley v. Apache County Superior Court,
large voting systems and packing. This led to determining the outcome of key political 109 Ariz. 510, 513 (1973) (unsuccessful
the renewal of the act in 1970 and 1975. In races. For example, in the 1991 governor’s candidate sought to enjoin successful
response to the Supreme Court’s decision in race in Louisiana, African Americans Navajo candidate claiming that Indians are
Mobile v. Bolden,5 Congress clarified that the turned out in unprecedented numbers to ineligible to vote and seek office); Goodluck
v. Apache County, 417 F. Supp. 13 (D.
act prohibits not only intentional discrimina- vote. A former grand wizard of the Ku
Ariz. 1975), aff’d, 429 U.S. 876 (1976)
tion but also voting practices and procedures Klux Klan, David Duke, had defeated the (county claimed that Indian Citizenship
that have a discriminatory result. The 1982 incumbent governor, clearing the way for a Act was unconstitutional); Att’y General
amendments also made certain provisions of runoff with former governor Edwin Opinion, No. I03-007 (2003) (question-
the act permanent. In 2006, Congress reau- Edwards.11 That year, the African American ing whether Navajo tribal members are eli-
thorized the expiring provisions of the act vote made the difference in electing gible to serve on the Commission on
for another 25 years, after multiple hearings Governor Edwards. This was a highly Appellate Court Appointments).
10. A Voice, African American Voices in
and extensive testimony highlighted contin- polarized election that brought racial fears
Congress webpage, available at
ued obstacles for minority voters. to the forefront again. Native American www.avoiceonline.org/voting/history.html.
The act also paved the way for ballot par- voters are also credited with the success of 11. Guy Coates, Edwards Beats Duke—Ex-
ticipation by non-English speakers. These U.S. Senator Tim Johnson’s South Dakota Klanner Loses Louisiana Race, AP, Nov. 17,
changes positively affected the participation election in 2002, and U.S. Senator Jon 1991.
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