The current state of the Voting Rights Act: should it be renewed, amended, or allowed to expire?

• Position: Faulkner University Thomas Goode Jones School of Law Jones Law Review Symposium on the Voting Rights Act of 1965 - Discussion

Senator Mitchell:

This will be a panel discussion on the topic: "The Current State of the Voting Rights Act: Should it be Renewed, Amended or Allowed to Expire?" This fall, the United States Congress will begin debating whether to renew one of the most significant and controversial civil rights laws ever passed. (1) Section 5 of the Voting Rights Act (2) requires certain state and local governments, mostly in the Deep South, to ask the federal government's permission before making any change, no matter how small, in the way they run elections. (3) This is known as a "pre-clearance procedure" and has been used many times in the State of Alabama. (4)

I see a number of lawyers in our audience who have been active in cases involving the Voting Rights Act. Section 5, which will sunset in 2007 (5) unless Congress renews it, has both supporters and detractors. I had the privilege of going to Washington as an aide to a United States congressman less than two years after the Voting Rights Act passed. The Act was really new when I was first exposed to it, and one of the first things I did was get a copy of the Congressional Record. The Congressional Record, as most of you know, is the verbatim record of the proceedings of both the United States Senate and United States House. Except for the debate on the Panama Canal Treaty, (6) and more recently on NAFTA, (7) the largest recorded debate in the Congressional Record was that on the debate of the Voting Rights Act, which we are going to discuss today.

We are privileged at this symposium to have a group of outstanding panelists whom I will briefly introduce at this time. After I introduce them, each panelist will have ten minutes to make an opening statement on our general subject. Following that, I will field a number of questions, some of which have already been submitted. In turn, each panelist will have the opportunity to respond to these questions.

The first panelist, to my far right, is a legend in his own time. He is Fred Gray, Sr., for whom this symposium is named. Mr. Gray received his law degree from Case Western Reserve University in Ohio. He is a partner with the firm of Gray, Langford, Sapp, McGowan, Gray and Nathanson with offices in Tuskegee and Montgomery, Alabama. Mr. Gray represented Rosa Parks and Martin Luther King, Jr. and has had extensive experience trying Civil Rights cases. (8) He also served as the first African American President of the Alabama Bar Association. For those of us here at Faulkner University's Jones School of Law, we are grateful for his continued support of all of our programs at the Law School.

On my immediate right is John Park. I have had the privilege of knowing him for a number of years now, and it may be that one reason I am still in office is because of Mr. Park. He represented me in a lawsuit when they tried to toss me out of the Alabama State Senate on a gerrymandering case about six years ago. (9) Mr. Park received his law degree from Yale University. He is currently an Assistant Attorney General for the State of Alabama with long tenure, and he is highly respected in the field of elections.

Next to me is Dr. Gwen Patton. Dr. Patton earned her Ph.D. from Union Graduate School, her Masters in Education from Antioch, and her Bachelor of Science degree from Tuskegee University. Dr. Patton also received an Honorary Doctor of Letters from the Interdenominational Institute of Theology. You may have heard or seen her recently on C-Span. (10) She testified before the National Commission on the Voting Rights Act recently, and we are quite privileged to have her very knowledgeable background on this panel. (11)

Next to her is Charles Campbell. Mr. Campbell received his law degree from the University of Virginia, one of the founding universities of this country and established by one of our great forefathers. (12) He is also currently an Assistant Attorney General for the State of Alabama.

On the end, to my far left, is Professor Bryan Fair. Professor Fair received his law degree from the University of California at Los Angeles. He is a Professor of Law with the University of Alabama School of Law, and I have heard his name many, many times in a very positive way. He teaches "Race, Racism and the Law" and "Gender of the Law."

We are also honored to have with us my colleague in the Alabama Senate, the honorable Hank Sanders. Hank is one of the most highly respected members of the Legislature and has been such for many, many years. He is also one of the--I hate to use the word powerful--but most powerful members of the Legislature in that he is Chairman of one of our major committees. (13) He is one of the leaders of the Alabama Senate. I do not know of anybody who has a greater work ethic than Senator Hank Sanders. It is a privilege to serve and work with him. Hank, we are delighted to have you on the panel today.

As you can tell from these brief biographies, we have an outstanding group to discuss a very important contemporary issue with roots that go back almost fifty years. At this time, and in the order in which I introduced them, I will call on each panelist to make a ten-minute statement as an opening part of this discussion. Mr. Gray.

Fred Gray:

Thank you very much, Senator. You heard from me this morning, so I may not even take my ten minutes. What I tried to do during that period of time was to give you a history of why it became necessary for the Voting Rights Act to be passed. As I concluded, I gave you some details about all of the activities that occurred in and around Macon County, Alabama, which really led to the passage of a lot of the bills, including the Boswell Amendment. (14) The testimony that ultimately went before Congress resulted in the Voting Rights Act. I only want to conclude at this time, as I told you at the end of my earlier discussion, that I am in favor of extending the Voting Rights Act.

I think the Voting Rights Act has been responsible for thousands of minorities being elected to public office. But for that Act, we would not have that type of representation. Let me just tell you, because some of you do not know, that on July 16, 1957, bills to abolish Macon County were jointly sponsored by Senator Engelhardt and Representative J. J. Rogers. (15) Representative Rogers was House Representative from Macon County, and Senator Engelhardt was our State Senator. It is the only county in this State, that I know of, which because of the activities that I explained to you this morning including efforts to get persons registered, resulted in a legislative attempt to get rid of a whole county. That commission went to work and they took testimony. Most representatives, from all of the surrounding counties, testified in favor of abolishing the county. I understand they probably would have abolished the county, and various surrounding counties were willing to accept certain parts of it. Then the question came up, "What are we going to do with Tuskegee Institute?" Nobody wanted it, so they did not abolish the county.

I am not prepared to trust Alabama, or to trust my two Senators present here today, who are very nice persons, or to trust the Governor, or the Attorney General with whether minorities continue to enjoy the right to vote. The Voting Rights Act has worked well since it was enacted, and if it is not broken, do not fix it.

Senator Mitchell:

Thank you, Fred. Mr. Park is next, please.

Jack Park:

I am honored to join you here today. For the past seven years, I have worked on the civil side with the State of Alabama Attorney General's Office. I have been involved in nearly every redistricting, election, and Section 5 litigation that we have had. I have also participated in preparing some of the pre-clearance submissions. Any views that I express today are mine and not those of my office.

I would like to suggest that Congress give serious consideration, to not renewing Section 5 of the Voting Rights Act. It was renewed in 1982, (16) and since 1982, there have been a limited number of objections to submissions by the State of Alabama. The most recent litigation record partakes of political "gotcha" litigations that flashback to pre-clearance submissions, years after they were made, and other misguided attempts to invoke the Act. We could do just fine with some precedents, at the very least, to say what is and what is not a valid Section 5 claim. The rest of the Act survives past 2007. In particular, Section 2 of the Voting Rights Act is the basis for the Dilution Claims. (17)

With respect to Section 5, one change that could possibly be made is the date of the baseline, because the way that it works right now, the baseline dates are from the voting standard practice or procedure on November 1, 1964. (18) There are not any state election officials around today who were working in 1964. We really do not have a good grasp on what we were doing in 1964. That is a good thing, because what was going on was not generally a good thing. Any change since then that has gone into effect has been pre-cleared. Any change since then has been determined not to be retrogressive.

If Congress does decide to re-authorize the Act, it should not reauthorize it for twenty-five years; Congress should reauthorize it for a shorter term and should likewise pull the date of any baseline forward to the present. That way, we can take advantage of the institutional memory of the people who run elections today. In 2005, election officials are primarily motivated to pull off elections with the least amount of disruption.

Dr. Patton:

I am going to try to do this briefly. First of all, I am in favor of the extension of the Voting Rights Act for another twenty-five years. In 1965, we had 300 black elected officials across the country. (19) In 2005, we have 9,100 black elected officials, including the forty-three in Congress. (20)

The voting rights movement and the Act that came in the aftermath were not for black people only. It...