21 Washington Post, 31 May 2008; ibid., 10 January 2009; New York Times, 9 and 10 January 2009; Kousser, “Strange, Ironic Career,” 763-769; Northwest Austin Municipal Utility District No. One v. Mukasey, No. 06-1384 (D.C., May 30, 2008). Regarding previous court treatments of preclearance, see the later section of this chapter entitled “Preclearance and the Totality of Circumstances.”
22 Nathaniel Persily, “The Promise and Pitfalls of the New Voting Rights Act,” Yale Law Journal 117 (November 2007): 207-211; Kristin Clarke, “The Congressional Record Underlying the 2006 Voting Rights Act: How Much Discrimination Can the Constitution Tolerate?” Harvard Civil Rights-Civil Liberties Law Review 43 (2009): 386-433; NAMUDNO v. Mukasey, S. Ct., Jurisdictional Statement, September 2008, Scotusblog, http://www.scotusblog.com/wp/wp-content/uploads/2008/09/NAMUDNO_js.pdf; NAMUDNO v. Holder, S. Ct. No. 08-322, Appellant’s Brief, 19 February 2009, Electionlawblog, http://electionlawblog.org/archives/namudno-appellants-brief.pdf; New York Times, 9, 10, and 25 January 2009; USA Today, 8 January 2009; Los Angeles Times, 10 January 2009; Austin-American Statesman, 10 January 2009; Lyle Denniston, “Court to Rule on Voting Rights Law,” www.scotusblog.com, 9 January 2009. See also Endnote 17 above.
23 Lane v. Wilson, 307 U.S. 268 (1939); Schnell v. Davis, 336 U.S. 933 (1949); United States v. Raines, 362 U.S. 17, 22 (1960); a decision similar to the Schnell ruling also came in 1965 in Louisiana v. United States, 380 U.S. 145 (1965); regarding the white primary, see Chapter 7.
24 South Carolina v. Katzenbach, 383 U.S. 301, 308, 337 (1966).
25 Katzenbach v. Morgan, 384 U.S. 641, 671 (1966); Gaston County, N.C. v. United States, 395 U.S. 285, 296 (1969); Oregon v. Mitchell, 400 U.S. 112, 118 (1970).
26 Post-1970 cases dealing with the right to vote per se followed the same lines as those discussed here. See, e.g., Mississippi State Chapter, Operation Push v. Allain, 674 F. Supp. 1245 (N.D. Miss. 1987).
27 Morton J. Horwitz, The Warren Court and the Pursuit of Justice (New York, 1998), xii, 13-14, 74-98; U.S. House, Hearings Before Subcommittee No. 5 of the Committee on the Judiciary, 88th Cong., 1st sess., ser. no. 4, pt. 1, 1963, 905-906; John H. Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA, 1980), 74. Proposals for resolutions “to establish a free and universal franchise throughout the United States” were introduced by Representatives John D. Dingell and Joseph G. Minish in 1963. They never came to a vote and do not appear to have been seriously considered. Congressional Record, 88th Cong., 1st sess., 1963, 109, pt. 1: 57, and pt. 2: 1672.
28 Breedlove v. Suttles, 302 U.S. 277 (1937). The Supreme Court, in 1951, also upheld the Virginia state poll tax (over the dissent of Justice Douglas) in Butler v. Thompson, 341 U.S. 937 (1951).
29 Harper et al. v. Virginia Board of Elections et al., 383 U.S. 663, 669 (1966).
30 Ibid.
31 For a helpful exegesis of modes of constitutional interpretation, see Ely, Democracy and Distrust, 73-134; on democratic theory during the period and its link to law, see Morton J. Horwitz, The Transformation of American Law, 1870-1960 (New York, 1992), 254-258.
32 Frank I. Michelman, “Conceptions of Democracy in American Constitutional Argument: Voting Rights,” Florida Law Review 41 (Summer 1989): 458; Horwitz, Warren Court, 6; Ely, Democracy and Distrust , 120. As Ely points out (237n), the enfranchisement of women never would have required a constitutional amendment had the 1960s interpretation of the equal protection clause been in vogue.
33 Hines v. Winters, 320 P. 2d 1114, 1116 (Okla. 1957); U.S. Senate, Hearings Before a Subcommittee of the Committee on the Judiciary, 84th Cong., 2d sess., on S. J. Res. 29, 11 and 13 April 1956, 1-9; the original Virginia suit that resulted in the Harper decision also challenged Virginia’s pauper exclusion law, but that challenge disappeared because the district court ruled that the plaintiffs had been denied the franchise because of their failure to pay poll taxes rather than their being paupers.
34 The Commonwealth of Massachusetts, Legislative Research Council Report Relative to Voting by Paupers, Senate Document No. 1103 (8 February 1967), 7-26; John F. X. Davoren, Secretary of the Commonwealth , Election Statistics of the Commonwealth of Massachusetts 1970-72 (Boston, 1972), 499-504; Boston Globe, 7 November 1972; Providence Journal, 8 November 1972. The pauper exclusion clause in Massachusetts also resulted in a challenge to the state’s jury selection system, since jurors were drawn from voting lists. See “The Exclusion of Paupers from Voter Lists and Thereby from Eligibility for Jury Duty,” Suffolk University Law Review 7 (1973): 369-375.
35 Kramer v. Union Free School District, 395 U.S. 623, 627 (1969); Michelman, “Conceptions of Democracy,” 462-464.
36 Cipriano v. Houma, 395 U.S. 701, 706 (1969); City of Phoenix, Arizona v. Koldziejski, 399 U.S. 204, 212 (1970); Hill v. Stone, 421 U.S. 289 (1975); Hayward v. Clay, 573 F. 2d 187 (4th Cir 1978); Police Jury of Parish of Vermillion v. Herbert, 404 U.S. 807 (1971); Light v. MacKenzie, 356 N.Y.S. 2d 991 (N.Y. Sup. Ct. 1974); Alan Reitman and Robert B. Davidson, The Election Process: Voting Laws and Procedures (Dobbs Ferry, NY, 1972), 26-27; Michelman, “Conceptions of Democracy,” 464-465.
37 Salyer Land Company v. Tulare Lake Basin Water Storage District, 410 U.S. 719 (1973); Ball v. James, 451 U.S. 355 (1981); State v. Frontier Acres Community Development District Pasco County, 472 So. 2d 455 (Fla. 1985); Associated Enterprises, Inc. v. Toltec Watershed Improvement District, 410 U.S. 743 (1973); Snead v. City of Albuquerque, 663 F. Supp. 1084 (D.N.M. 1987). As Michelman points out (“Conceptions of Democracy,” 465-472), the Court’s attempt to distinguish between different types of government entities and their functions (in comparing the Ball decision to Cipriano, e.g.) was something less than a model of clarity; cf. Southern California Rapid Transit District v. Bolen, 822 P. 2d 875 (Cal. 1992).
38 Lassiter v. Northampton County Board of Elections, 360 U.S. 45 (1959); cf. Castro v. State of California, 466 P. 2d 244, (Cal. 1970); Lawson, In Pursuit of Power, 132-151; Thernstrom, Whose Votes Count?, 34-35.
39 Oregon v. Mitchell, 400 U.S. 112, 133 (1970). For an analysis of the Court’s view of literacy requirements, against the backdrop of Harper and the Court’s general use of the equal protection clause, see Michelman, “Conceptions of Democracy,” 480-485.
40 Voting Rights Act Amendments of 1975, U.S. Statutes at Large 89 (1975): 400; Reitman and Davidson, Election Process, 22-23. New York’s literacy test was the subject of considerable legal dispute prior to the national ban. See U.S. v. County Board of Elections of Monroe County, 248 F. Supp. 316 (W.D. N.Y. 1965); Cardona v. Power, 384 U.S. 672 (1966); Katzenbach v. Morgan, 384 U.S. 641 (1966); Torres v. Sachs, 381 F. Supp. 309 (S.D. N.Y. 1974). Some states, such as Massachusetts, removed their literacy requirements after the 1970 Voting Rights Act. Massachusetts, Gen. Laws, (1971), chap. 382, sec. 8. California did so in 1974. For examples of assistance laws, see Massachusetts, Gen. Laws (1972), chap. 42, sec. 1; Laws Passed at the First Regular Session of the Fiftieth General Assembly of the State of Colorado, 1975, vol. 1, comp. and arr. James C. Wilson, Jr. (Denver, CO, 1975), 177; and Laws Passed at the First Regular Session of the Fifty-third General Assembly of the State of Colorado, 1981, vol. 1, arr. and prep. Douglas G. Brown (Denver, CO, 1981), 313. For Illinois, see Puerto Rican Organization for Political Action v. Kusper, 490 F. 2d 575 (Ill. App. 7th Cir 1973). The 1982 amendments to the Voting Rights Act also included a clause establishing the right of a voter in need of assistance, due to blindness, disability, or illiteracy, to receive such assistance from a person of his or her choice, other than an employer or union official.
41 “Durational Residency Requirements for Voting,” Harvard Law Review 86 (1972): n.107.
42 Stephan Thernstrom, The Other Bostonians: Poverty and Progress in the American Metropolis, 1880-1970 (Cambridge, MA, 1973), 40-44, 230; Peverill Squire, Raymond E. Wolfinger, and David P. Glass, “Residential Mobility and Voter Turnout,” American Political Science Review 81 (March 1987): 45-50.
43 Oregon v. Mitchell, 400 U.S. 112 (1970
).
44 Dunn v. Blumstein, 405 U.S. 330, 358 (1972); Marston v. Lewis, 410 U.S. 679, 93 S. Ct. 1211 (1973); Burns v. Fortson, 410 U.S. 686 (1973); Hinnant v. Sebesta, 363 F. Supp. 398 (M.D. Fla. 1973); Jackson v. Bowen, 420 F. Supp. 315 (S.D. Ind. 1976). Regarding state action, see Keane v. Mihaly, 11 Cal. App. 3d 1037 (Cal. App. 4th 1970); Young v. Gnoss, 7 Cal. 3d 18 (Cal. 1972); the 1972 revisions of the California Constitution as indicated in Constitution of the State of California, Annotated (San Francisco, 1981); Atkin v. Onondaga County Board of Elections, 285 N.E. 2d 687 (N.Y. 1972); Colorado’s “Act Concerning the Eligibility of New Residents of this State to Vote for Presidential and Vice-Presidential Electors,” passed 23 April 1969, as well as “An Act Concerning Elections,” passed 17 April 1971, Laws Passed at the First Regular Session of the Forty-eighth General Assembly of the State of Colorado, 1971, comp. James C. Wilson, Jr. (Denver, CO, 1971), 548-564; Alan S. Gratch and Virginia H. Ubik, Ballots for Change: New Suffrage and Amending Articles for Illinois (Urbana, IL, 1973), 61-71.
45 For an excellent discussion of the rights of college students in the early twenty-first century, see Richard G. Niemi, Michael J. Hanmer, and Thomas H. Jackson, “Where Can and Should College Students Vote? A Legal and Empirical Perspective,” unpublished paper, 2008, University of Rochester.
46 Carrington v. Rash, 380 U.S. 89, 96 (1965). Regarding students, see Palla v. Suffolk County Board of Elections, 286 N.E. 2d 247 (N.Y. 1972); Auerbach v. Rettaliata, 765 F. 2d 350 (2d Cir 1985); Wray v. Monroe County Board of Elections, 595 F. Supp. 1028 (W.D. N.Y. 1984); Ramey v. Rockefeller, 348 F. Supp. 780 (E.D. N.Y. 1972); Williams v. Salerno, 792 F. 2d 323 (2d Cir 1986); Levy v. Scranton, 780 F. Supp. 897 (N.D. N.Y. 1991); Walters v. Reed, 752 P. 2d 443 (Cal. 1988); Whatley v. Clark, 482 F. 2d 1230 (5th Cir 1973); Hershkoff v. Board of Registrars of Voters of Worcester, 321 N.E. 2d 656 (1974); Sloane v. Smith, 351 F. Supp. 1299 (M.D. Pa. 1972); Lloyd v. Babb, 196 N.C. 416, 251 S.E. 2d 843 (1979); Ballas v. Symm, 494 F. 2d 1167 (5th Cir 1974); Bright v. Baesler, 336 F. Supp. 527 (E.D. Ky. 1971); Dyer v. Huff, 382 F. Supp. 1313 (D.S.C. 1973). Regarding the homeless, see Collier v. Menzel, 176 Cal. App. 3d 24 (Cal. App. 2d 1985); Pitts v. Black, 608 F. Supp. 696 (S.D. N.Y. 1984); Fischer v. Stout, 741 P. 2d 217 (Alaska 1987). Regarding absentee ballots, see, e.g., Laws Passed at the Second Regular Session of the Forty-eighth General Assembly of the State of Colorado 1972, comp. James C. Wilson, Jr. (Denver, CO, 1972), 305-309; Laws Passed at the First Regular Session of the Fifty-fourth General Assembly of the State of Colorado, 1983, arr. Douglas G. Brown (Denver, CO, 1983), 368. The federal government also passed an Overseas Citizens Voting Rights Act in 1975.
47 Wendell W. Cultice, Youth’s Battle for the Ballot: A History of Voting Age in America (New York, 1992), 2-18.
48 Ibid., 19-30.
49 Ibid., 30-61.
50 Ibid., 30-65, 80-92.
51 Ibid., 40-50.
52 Ibid., 93-112; Ward E. Y. Elliott, The Rise of Guardian Democracy: The Supreme Court’s Rulings on Voting Rights Disputes, 1845-1969 (Cambridge, MA, 1974), 140-141; cf. Manfred Berg, “Soldiers and Citizens,” in David K. Adams and Cornelis A. van Minnen, eds., Reflections on American Exceptionalism (Staffordshire, UK, 1994), 211-214.
53 The negative votes came almost entirely from conservative Republicans and southern Democrats.
54 Cultice, Youth’s Battle, 116-140; Elliott, Guardian Democracy, 141-145.
55 Oregon v. Mitchell, 400 U.S. 112, 144 (1970); by 1970, a handful of states had lowered their voting ages to nineteen or twenty. For an analysis of this decision, see Richard S. Greene, “Congressional Power over the Elective Franchise: The Unconstitutional Phases of Oregon v. Mitchell,” Boston University Law Review 52 (1972): 509-569.
56 Cultice, Youth’s Battle, 173-181. Some states, such as Colorado, did manage to lower their voting ages to eighteen in 1971 and 1972.
57 Ibid., 181-215. The reach of the amendment was clarified by the courts in Gaunt v. Brown, which determined that states did have the right to deny the franchise (based on age) to any voter who had not reached the age of eighteen by election day. Gaunt v. Brown, 341 F. Supp. 1187, aff ’d 409 U.S. 809 (1972).
58 This is probably a conservative estimate. The age reduction made more than eleven million young men and women eligible; changes in residency law may well have enfranchised an additional ten million; the number of blacks and Hispanics who could vote was probably in the vicinity of five to six million; and there were one million illiterate citizens in 1970. See Cultice, Youth’s Battle, 174.
59 Two excellent recent studies of the links between the cold war and civil (and voting) rights for African Americans are: Thomas Borstelmann, The Cold War and the Color Line: American Race Relations in the Global Arena (Cambridge, MA, 2001), and Mary L. Dudziak, Cold War Civil Rights: Race and the Image of American Democracy (Princeton, NJ, 2000).
60 On the politics of growth, see Alan Wolfe, America’s Impasse: The Rise and Fall of the Politics of Growth (Boston, 1981).
61 Joan T. Thornell, Governance of the Nation’s Capital: A Summary History of the Forms and Powers of Local Government for the District of Columbia, 1790 to 1973, U.S. House, Committee on the District of Columbia, 101 Cong., 2d sess. (1990), 1-3, 11-39, 43-53; Steven F. Lawson, “Civil Rights,” in Robert A. Divine, ed., Exploring the Johnson Years (Austin, TX, 1981), 114-115; Lawson, Black Ballots, 100. For an insightful analysis of how the “second reconstruction” was institutionalized and stabilized, see Richard M. Valelly, The Two Reconstructions: The Struggle for Black Enfranchisement (Chicago, 2004), especially 199-250.
62 “The Failed Amendments,” U.S. Constitution Online, 27 August 2007, http://www.usconstitution.net/constamfail.html; Washington Post, 3 March and 23 March 1978; ibid., 20 September 1978; ibid., 11 February 1979; ibid., 3 June 1979, ibid., 4 July 1984; ibid., 6 May and 20 May 1985; ibid., 22 August 1985; ibid., 19 September 2007; Paul Page, “Scholars Tell House Panel District Deserves Statehood,” Associated Press, 13 May 1986; Jeffrey Thomas Dodd, “Curing Disenfranchisement in the District of Columbia: What Hasn’t Worked and Why?” Law and Society Review at UCSB III (2004): 11-27; Laurie Asseo, “Court Upholds House Voting Ruling,” Associated Press Online, 16 October 2000. Notably, the population of the District of Columbia declined substantially between 1970 and 2000. In February 2009, Congress revived the plan to give the district a voting seat in exchange for granting an additional seat to Utah; with Democrats in control of both Congress and the White House, supporters of the legislation were optimistic about its ultimate passage. New York Times, 17 February 2009.
63 Baker v. Carr, 369 U.S. 186, 300, 318, 327 (1962); Ely, Democracy and Distrust, 120. Frankfurter first used the phrase in an earlier case, Colegrove v. Green, 328 U.S. 549, 556 (1946).
64 Gray v. Sanders, 372 U.S. 368, 377 (1963); Wesberry v. Sanders, 376 U.S. 1, 8 (1964).
65 Reynolds v. Sims, 377 U.S. 533, 563, 573 (1964). Once again, Justice Harlan dissented, citing the inapplicability of the Fourteenth Amendment. Cf. Avery v. Midland County, Texas, 390 U.S. 474 (1968), in which the Court held that there could not be “substantial variation from equal population” in districting for local governments. In Karcher v. Daggett, 462 U.S. 725 (1983), the Court tightened the permissible latitude allowed in congressional districting.
66 Gomillion v. Lightfoot, 364 U.S. 339, 342 (1960); Elliott, Guardian Democracy, 82-84; J. Morgan Kousser, Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction (Chapel Hill, NC, 1999), 53-54, 371; Lawson, Running for Freedom, 61-62.
67 Kousser, Colorblind Injustice, 60; for a discussion of the breadth of malapportionment and vote dilution, see the U.S. Civil Rights Commission, Voting, 113-135.
68 Allen v. State Board of Elections, 393 U.S. 544, 565 (1969); Perkins v. Matthews, 400 U.S. 379, 388 (1971); Lawson, In Pursuit of Power, 133, 159-161; Kousser, Colorblind Injustice, 59-63; Richard L. Engstrom, “Racial Discrimination in the Electoral Process: The Voting Rights Act and the Vote Dilution Issue,�
� in Robert P. Steed, Laurence W. Moreland, and Tod A. Baker, eds., Party Politics in the South (New York, 1980), 197-202.
69 Lawson, In Pursuit of Power, 133-142, 163-174, 203-212, 217-221; Georgia v. United States, 411 U.S. 526 (1973); Engstrom, “Racial Discrimination,” 200-203.
70 Whitcomb v. Chavis, 403 U.S. 124 (1971); White v. Regester, 412 U.S. 755, 769 (1973); Zimmer v. McKeithen, 485 F. 2d 1297 (5th Cir 1973); Bernard Grofman, Lisa Handley, and Richard G. Niemi, Minority Representation and the Quest for Voting Equality (New York, 1992), 32-34. A divided Court, in the early 1970s, backed away slightly from its insistence on numerical equality in districting, permitting greater variance in the size of districts. Gaffney v. Cummings, 412 U.S. 735 (1973); Mahan v. Howell, 410 U.S. 315 (1973).
71 Engstrom, “Racial Discrimination,” 202-204; Grofman, Handley, and Niemi, Minority Representation , 25-27.
72 The Court’s awareness of the potentially balkanizing effects was expressed by Justice White in his criticism of the district court’s holdings in Whitcomb v. Chavis (1875-1876).
73 See ibid.
74 Lawson, In Pursuit of Power, 216-221; Engstrom, “Racial Discrimination,” 205-209; City of Petersburg, Virginia v. United States, 354 F. Supp 1021 (D.C. 1972), affirmed 410 U.S. 962 (1973); City of Richmond v. United States, 422 U.S. 358 (1975); Beer v. United States, 425 U.S. 130 (1976).
75 United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144 (1977); Lynett Henderson, “Lost in the Woods: The Supreme Court, Race, and the Quest for Justice in Congressional Reapportionment,” Denver University Law Review 73 (1995): 213-214.
76 City of Mobile, Alabama v. Bolden, 446 U.S. 55, 62 (1980); Grofman, Handley, and Niemi, Minority Representation, 34-38.
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