Free at Last to Vote: The Alabama Origins of the 1965 Voting Rights Act.

AuthorRodriguez, Cristina M.
PositionBook review

Free at Last To Vote: The Alabama Origins of the 1965 Voting Rights Act

BY BRIAN LANDSBERG

LAWRENCE: UNIVERSITY PRESS OF KANSAS, 2007. PP. 264. $34.95

REVIEW CONTENTS INTRODUCTION I. LITERACY TESTS AND ACCESS TO THE VOTE IN 1960s ALABAMA A. Fighting for the Right To Vote in Alabama B. Alabama in Context C. A New Framework II. BILINGUAL BALLOTS AND ACCESS FOR LANGUAGE MINORITIES A. Bilingual Ballots and the Access Paradigm B. Access and Effectiveness III. EXPANDING THE FRANCHISE AND THE PROBLEMATICS OF LATINO GROUP IDENTITY A. The Citizenship Gap B. Making Citizens C. Incorporating Noncitizens CONCLUSION INTRODUCTION

Brian Landsberg puts lawyers at the center of history. In Free at Last To Vote: The Alabama Origins of the 1965 Voting Rights Act, (1) Landsberg tells the story of the Department of Justice (DOJ) attorneys who spent the early 1960s bringing case after case against recalcitrant local officials in Alabama to enforce the voting rights provisions of the civil, rights statutes that preceded the landmark Voting Rights Act of 1965 (VRA). (2) In the popular imagination and in broadly framed historical accounts, the VRA represents the culmination of grassroots civil rights struggle and hardball national politics. (3) But Landsberg reminds us that a group of dedicated litigators not only helped set the stage for the passage of what scholars call the most successful civil rights law of all time, (4) but also played a critical role in shaping the content of that statute. (5)

Landsberg, then fresh out of law school, was among this initial cadre of lawyers. His carefully researched account of the cases they brought in three Alabama counties is nicely inflected by personal recollections of the dramatis personae, as well as a sense of relief that his fact-gathering labors ultimately contributed to a revolutionary social achievement-a reminder to all frustrated by the minutiae of the practice of law that meticulous attention to detail is essential to the vindication of lofty principles. In this history cum memoir, Landsberg does not set out to revise, so much as expand, existing accounts of events leading up to the VRA, and he succeeds in deepening the institutional picture of the origins of the statute.

Through the witness testimony they collected to support their cases, Landsberg and his colleagues constructed elaborate records that exposed how local registrars applied neutral requirements in disparate ways to keep otherwise qualified black residents from joining the voting rolls. By manipulating legally approved devices designed to assess potential voters' qualifications, such as literacy tests and registration questionnaires, the local officials in charge of Alabama's voting machinery effectively maneuvered around the voting rights laws then in place. The DOJ litigation--both the practices it revealed and the responses it elicited from southern judges--made it plain that additional action by Congress would be required to bring an end to the exclusion of blacks from democracy in the South. In addition, the DOJ litigation highlighted that any new voting legislation would have to be based on a paradigm shift--from an emphasis on registering all qualified voters, defined in a facially neutral way, to an emphasis on access, plain and simple, regardless of qualifications. This shift was ultimately reflected in Congress's temporary suspension in the VRA of literacy tests, which the Supreme Court had previously declared constitutional, (6) as well as in the administrative apparatus created under section 5 of the Act, pursuant to which covered jurisdictions were required to seek preclearance from the DOJ before changing any aspect of their voting systems--a requirement that remains in place today. (7)

In simply telling his story, Landsberg makes an important contribution to the historiography of voting rights in the United States. But his account also presents an opportunity for reflection on how the remedies designed to address the particular circumstances he explores evolved to address later voting rights concerns. The paradigm shift from qualifications to access established a new conceptual framework that made possible later voting rights innovations designed to secure access for all voters, regardless of qualifications. Perhaps the most important (and controversial) of these innovations was the bilingual ballot, a 1975 addition to the statute. (8) Though it is a long way from black/white relations in Sumter County, Alabama, in 1963 to Mexican American/Anglo-American relations in Texas in the 1970s--the time and place that gave rise to the bilingual ballot requirements (9)--the principles that connect those times and places are of great significance to contemporary conceptions of democracy.

Landsberg certainly does not set about trying to trace any such continuities, and one of the limitations of his account is that it is not well-situated in broader historical or theoretical frames. His declared ambition is simply to give the DOJ lawyers their due. In so doing, he helpfully reminds us of the key roles lawyers have played in important social transformations. But placing his story in a broader historical context yields important insights about how the struggles of one group of American citizens--namely blacks--to become full members of the polity have been translated to support the interests of others--namely Latinos. This translation has expanded our understanding of who constitutes a socially salient minority group and what constitutes discrimination against that group. Landsberg's account helps us to see that once remedies migrate from litigation to legislation, they establish a framework that subsequent reformers can use to address problems not contemplated by the original remedies.

In addition to helping us identify these continuities, Landsberg's work also gives us an opportunity to reflect on the continued relevance of the VRA's original remedies to the current state of affairs in the electoral arena. The migration of remedies from litigation to legislation certainly has been empowering, but it also has been limiting. Though it has made some sense for Congress to adapt the original framework of the VRA to address apparent new threats to the right to vote, it remains important to recognize when those frameworks are no longer sufficient or necessary to ensure equal participation. (10) While pointing to the law's continuities, then, Landsberg's work set in context also reminds us of the need to continually ask whether altogether new strategies are required to keep democracy vital--an insight of particular relevance to the rights and interests of Latinos today.

This Review first explores how Landsberg's story reveals the dynamics just described--the transformation from a system focused on voters' qualifications to an overriding concern for universal access, as well as the simultaneously path-dependent and evolutionary nature of the federal voting rights provisions and their enforcement. Part II then considers how these dynamics evolved in another context along a similar trajectory, through efforts in 1975 to extend the protections of the VRA to include Latinos and other so-called language minorities. In these extensions, the influence of Landsberg's DOJ lawyers is clear. Not only would the administrative remedy that emerged from their work be extended to protect Mexican Americans in Texas, but the idea of access as opposed to qualifications also would help give rise to the bilingual ballot. Much as the abolition of the literacy test a decade earlier was seen as a mechanism for ensuring access for southern blacks, the bilingual ballot came to be regarded as crucial to securing access for Mexican Americans and other language minorities.

Despite these significant achievements of the 1970s, however, it has become apparent that neither the bilingual ballot, nor the inclusion of Latinos generally as a subject of the VRA, has been the key to securing robust political participation by Latinos. One of the lessons that emerges from tracing the continuities between Landsberg's story and the 1975 VRA Amendments is thus that the efficacy of frameworks designed to address the particular problems of one group can be lost in translation to the context of another group. Part III of this Review argues that Latino underrepresentation in the "pull, haul, and trade" (11) of politics ultimately cannot be remedied by the VRA. Part of the Act's limitation in serving these ends stems from the unstable nature of "Latino" as a political category. The larger issue, however, is that the Latino population in the United States consists of sizable numbers of noncitizens who lack access to the franchise--a condition the VRA simply cannot remedy.

At first glance, this condition may not seem to require a remedy. But Latino noncitizens' lack of access to the vote resonates on some level with the story Landsberg tells. To be sure, unlike blacks in the Jim Crow South, noncitizens have not been determined by anyone to be eligible voters, and the access concerns of the latter therefore do not have the same moral significance as those of the former. But the citizenship gap compromises robust electoral democracy nonetheless, particularly as such democracy has come to be understood since Landsberg's time. The focus of the VRA quickly shifted from concern for the individualized right to vote to group-oriented representational concerns, or whether certain groups in the political process have the capacity to elect candidates of their choice. This shift from first-order access concerns to second-order representation concerns has highlighted the importance of group power to electoral democracy.

Understood in light of this development, the Latino citizenship gap presents a genuine dilemma. Latino citizens and noncitizens share interests and together form a coherent group, but they are deprived by the citizenship gap of the power to associate...

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