40 Years After Passage, Voting Law Is in Dispute

Continued Need Debated as Expiration Nears

By Darryl Fears
Washington Post Staff Writer

Saturday, August 6, 2005 marked the 40th year of the Voting Rights Act, and civil rights activists poured into sticky-hot Atlanta for a march that harks back to the thunderous demonstrations and rallies that led to the act's signing on Aug. 6, 1965.

But black, Hispanic and Asian American leaders who plan to link arms in front of the Georgia Capitol said this protest is no historic reenactment. They are fighting a law passed by the state's Republican-controlled legislature in March that requires voters to obtain one of six forms of photo identification before going to the polls, as opposed to the 17 types of picture and non-picture ID they currently use. Georgia officials say the changes -- which experts say will make the state's screening measures the strictest in the nation -- are needed to prevent fraud.

The skirmish over the Georgia rules is a part of the continuing debate over the landmark voting rights legislation, which has boosted minority representation and altered the contours of American politics. At the time the law was enacted, there were three black members of Congress; today there are 43. There are also 25 Hispanic House members and one Hispanic senator, compared with five members of Congress in 1965.

"It's important to use the anniversary to really emphasize to folks the importance of what this act means and what it stood for," said Henry Flores, a professor of political science at St. Mary's University in San Antonio.

Awareness of the legislation was raised this week with the release of memos written by Supreme Court nominee John G. Roberts Jr. from his days as a young aide in Ronald Reagan's Justice Department. Those memos revealed that Roberts forcefully advocated a policy that would shorten the law's reach. The policy sought to bar only voting rules that discriminated intentionally, as opposed to barring rules that have a discriminatory effect.

As Congress deliberates reauthorizing the act, which is set to expire at the end of next year, some conservative critics argue that two key provisions should be modified, if not dropped altogether. One of those provisions, Section 5, requires states to draw minority-controlled congressional districts if black and Hispanic voters dominate certain residential areas.

Section 5 also required election officials in nine states, mostly in the South, to submit any voting rules changes that might affect minorities to the Justice Department for pre-clearance.

That is why Georgia's new identification requirement awaits a decision by Attorney General Alberto R. Gonzales, who could approve or challenge its implementation in the coming weeks. Rural black voters, many of whom are too poor to own cars, have said they can't get to one of the state's 56 driver's license offices to get a photo ID. Black legislators stormed out of chambers to protest the change.

The other voting rights provision under scrutiny, Section 203, requires election officials to assist immigrant voters who don't speak English by providing them with voting material in their native language. The provision is not widely challenged because it benefits Asian Americans, Latinos, Armenians and others on both sides of the political divide.

In a speech earlier this week, Gonzales said he would work for the reauthorization of both provisions, according to the Justice Department. Republicans in the House and Senate have so far been supportive. President Bush has remained neutral on the issue, saying he would support any resolution that seemed fair.

But some conservative critics argue that Section 5 has all but wiped out major discrimination at the polls. Abigail Thernstrom, a conservative member of the U.S. Civil Rights Commission, said Congress should eliminate Section 5 -- which covers Virginia, Alabama, Alaska, Arizona, Florida, Georgia, Louisiana, Mississippi and Texas -- and voters claiming discrimination should seek remedies in the courts, as they do in the 41 states that are not covered by the provision.

"Why can't they go to a federal court . . . and make an argument?" she said. "They've got the 14th Amendment. They don't need Section 5."

Some supporters of the section, however, argue that such litigation is too costly for many aggrieved black and Hispanic voters. "If you have a poor black person or Native American or Latino who wants a Section 2 trial, they have to find lawyers who will do it," Flores said. "You've got to have money to pay for an expert witness to generate research. You tell me what African American can afford a $400-an-hour lawyer and a $200-an-hour expert."

Beyond the theoretical harm, liberal supporters of the measure say efforts to dilute the minority vote by redrawing districts in South Carolina and Texas are a real-life example of why the pre-clearance of rules is still needed. Also, they say, black voters complained of being wrongly identified as felons and crossed off the voting rolls in the 2000 presidential election.

"The right wing does not want to enforce voting rights law," said the Rev. Jesse L. Jackson, president of the liberal Rainbow/PUSH Coalition, which is leading the Atlanta demonstration.

Thernstrom and some other critics of the law also say that instead of fulfilling its intended purpose, it is now being used to create misshapen districts that herd minorities into a few areas while leaving adjacent districts overwhelmingly white, an action that has had the effect of helping Republicans.

"Republicans are having a field day with creating districts that bleach out minorities," Thernstrom said.

Congress has used Section 5 to guard against efforts by southern segregationists to scuttle the attempts of black people to vote. Since Reconstruction, the period after the Civil War, southern states have used a variety of means, from poll tax to literacy tests to violent intimidation, to keep black people from casting votes. In some cases, police blotters listed the offense of African Americans who were lynched as "tried to vote."

The fight over the law's language provision, Section 203, isn't as pronounced. It affects small portions of the country, such as the Los Angeles suburb of Monterey Park, where 5 to 10 percent of the population isn't versed in English.

Kathay Feng, executive director of California Common Cause, recalled going to a senior citizen center there and seeing Chinese immigrants lined up to vote during the presidential election in 1996.

White poll workers didn't understand their Cantonese language, or even the way they pronounced their names. Finally, one worker asked if they could step aside "so that we could first help regular voters," Feng said.

"The law is still needed," she said.