Forty Years Later: Chronicling the Voting Rights Act of 1965 and its Impact on Louisiana's Judiciary

• Author: Jonathan C. Augustine/Hon. Ulysses Gene Thibodeaux
• Position: B.A., Howard University; J.D., Tulane University School of Law./B.A., Dartmouth College; J.D., Tulane University School
• Pages: 453-494

Jonathan C. Augustine/Hon. Ulysses Gene Thibodeaux^*

Page 453

It is something to be able to paint a particular picture, or to carve a statue, and so to make a few objects beautiful; but it is far more glorious to carve and paint the very atmosphere and medium through which we look . . . [t]o affect the quality of the day, that is the highest of the arts. ¹

I Introduction

March 7, 1965 was an infamous day in United States history.² The Civil Rights Movement was well under way. Activists attempted to drawPage 454 attention to the political disparities and inequalities blacks were forced to endure because African-Americans were so frequently denied the right to vote.³ Shortly after Bloody Sunday, Congress acted pursuant to its constitutional authority⁴ and passed the Voting Rights Act of 1965.⁵

Although Congress passed the Act in 1965, its real significance in Louisiana's judiciary arguably was not realized for more than twenty years.⁶ Moreover, this realization of African-Americans' power to elect judicial representatives of their own choosing did not come through Congress-it came through litigious victories in the courts.⁷ This article commemorates the Act's fortieth anniversary and celebrates its impact on Louisiana's judiciary. In addition to providing a chronicle of courtroom victories it enabled, this article appropriately highlights Louisiana Supreme CourtPage 455 Associate Justice Bernette Joshua Johnson.⁸ Justice Johnson is a proud beneficiary of the Act who labored in the courts after its initial enactment and worked with some of the pioneers in Louisiana's black legal community.⁹ This article's publication is also in celebration of Justice Johnson's eleventh anniversary as a member of the Louisiana Supreme Court and the thirteenth anniversary celebration of the election of Justice Revius O. Ortique, Jr., the first black justice elected to serve on Louisiana's highest tribunal.

II The Voting Rights act of 1965

A The Need for Congress to Pass the Act

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Although the Civil Right Amendments¹⁰ ended involuntary servitude, granted blacks full citizenship, and theoretically granted the right to vote, the Amendments' practical effect was far less functional.¹¹ "Louisiana [for example] has a long history of de jure and de facto restrictions on the right of black citizens to register, to vote, and to otherwise participate in the democratic process."¹² The Act, therefore, "set its sights on the most visible barriers to black legal equality. These barriers were defined primarily as direct, formal discriminatory practices intended to exclude black participation in the central political and economic institutions of American life."¹³

From its inception, the United States has had a bitterly long history of racial divisiveness.¹⁴ Consequently, even though blacks were "free" to vote after adoption of the Fifteenth Amendment, states continued to deny minority citizens this fundamental right.¹⁵Page 457

Moreover, as other commentators have noted in addressing the necessity of federal legislation to protect minority citizens' right to vote:

Litigation of voting rights claims on a case-by-case basis under the Civil Rights Acts of 1957, 1960, and 1964 attempted to remedy unconstitutional voting practices but had only negligible success, result[ing] in only piecemeal gains . . . and was thwarted by the development of new voting practices abridging or denying the minority right to vote.¹⁶It was therefore essential that Congress pass federal legislation to prevent discrimination at the polling place.¹⁷

In Lane v. Wilson,¹⁸ U.S. Supreme Court Justice Felix Frankfurter observed that the Fifteenth Amendment "nullifies sophisticated as well as simple-minded modes of discrimination. It hits onerous procedural requirements which effectively handicap exercise of the franchise . . . ."¹⁹ Despite the broad intentions of the amendment, however, "white [s]outherners in charge of registration and voting readily circumvented the Fifteenth Amendment. They had an arsenal of discriminatory schemes."²⁰

Notwithstanding flagrant attempts to limit minority citizens' power of the franchise, [t]he Voting Rights Act is one of the most successful civil rights statutes ever passed by Congress. The [A]ct accomplished what the Fifteenth Amendment to the U.S. Constitution and numerous federal statutes had failed to accomplish-it provided minority voters an opportunity toPage 458 participate in the electoral process and elect candidates of their choice, generally free of discrimination.²¹Accordingly, Congress was uniquely situated to act pursuant to its constitutional authority to enact legislation to protect minority citizens in their attempts to fully participate in the political process and elect representatives of their own choosing.

B A Practical Analysis: What the Act Sought to Accomplish

The Act essentially shifted the responsibility for ensuring that the right to vote was not abridged from the courts to the United States Department of Justice.²² Sections 2 and 5 of the Act eliminated qualifications as prerequisites to voting.²³

Section 2 was originally a restatement of the Fifteenth Amendment and applies to all jurisdictions. It prohibits any state or political subdivision from imposing a "voting qualification or prerequisite to voting or standard, practice or procedure . . . in a manner which results in the denial or abridgment of the right to vote on account of race or color."²⁴Stated in summation, [t]he Act was viewed by many southern African-Americans and civil rights activists as the resurrection of the [F]ifteenth [A]mendment, a provision rendered impotent prior to the passage of the Act by discrimination. For more than a half century, white-controlled governments in the South had suppressed the minority right to vote through the use of violence, intimidation, and devices such as literacy tests, poll taxes, and primaries restricted on the basis of race and wealth.²⁵Page 459

Furthermore, Section 5 of the Act also requires Department of Justice approval before a "covered jurisdiction"²⁶ can change voting practices. "A jurisdiction covered by Section 5 is required to preclear any changes in its electoral laws, practices or procedures with either the U.S. Department of Justice or the U.S. District Court for the District of Columbia."²⁷ Congress, therefore, passed the Act to ensure states adhered to the Fifteenth Amendment's mandates²⁸ in attempting to "rid the country of racial discrimination in voting."²⁹

1. Section 2 of the Original Act and its Subsequent Amendments

Section 2 of the Act as originally passed in 1965³⁰ provided as follows:

No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b (f)(2) of this title.³¹In 1982, Congress amended the Act to infuse it with new life.³²More importantly, Congress specifically amended Section 2 in response to the Supreme Court's ruling in City of Mobile v. Bolden.³³Page 460

In Bolden, a group of black citizens alleged Mobile's practice of electing commissioners at-large illegally diluted minority voting strength, thus violating the Fourteenth and Fifteenth Amendments and Section 2 of the Act.³⁴ The Court's plurality opinion provided that "racially discriminatory motivation is a necessary ingredient of a Fifteenth Amendment violation."³⁵ Moreover, the Court concluded the plaintiffs failed to prove a violation under Section 2 of the Act because Congress did not intend Section 2 to have any different effect from that of the Fifteenth Amendment.³⁶

The Bolden Court reasoned that Section 2 only operated to prohibit intentionally discriminatory acts by state officials. Subsequent analysis has noted:

[T]he Court required proof of discriminatory intent for claims brought under [S]ection 2 of the . . . Act, as well as those brought under the [F]ourteenth and [F]ifteenth [A]mendments. Under this new, onerous burden of proof, plaintiffs could no longer rely on proof of discriminatory effect to raise an inference of intent; they now had to prove discriminatory purpose by "direct, smoking gun evidence."³⁷Accordingly, under the Court's holding...