The MacNeil/Lehrer Report; 6224; Voting Rights on Trial

[Tease]

SHERIFF [voice over bullhorn]`. You are ordered to disperse. Go home or go to your church. This march will not continue. Troopers here, advance toward the group; see that they disperse, [police beatings: screams]

ROBERT MacNEIL [voice-over]: Selma, Alabama. The dramatic climax in the struggle that produced the Voting Rights Act of 1965. Now another battle has begun to save it.

[Titles]

MacNEIL: Good evening. The curtain went up this week on what will probably be the hottest and most important civil rights issue facing this Congress. For the past two days, a House judiciary subcommittee has held hearings on whether to extend the 1965 voting rights act. The act was intended to end discrimination against blacks seeking to vote in the South. Among other things, it permanently forbids poll taxes and the use of literacy tests nationwide. It was extended later to protect Hispanics and other non- English-speaking minorities. Although key provisions of the act don`t expire until next year, bills have already been introduced to extend or amend it. Critics say it`s no longer needed, and represents unwarranted federal intrustion into local affairs. Supporters say it is still needed, and that failure to extend it will end the progress minorities have made. Tonight, the opening round in the voting rights battle of 1981. Jim Lehrer is off. Charlayne Hunter-Gauh is in Washington. Charlayne?

CHARLAYNE HUNTER-GAULT: Robin, as you said, the voting rights act has been extended twice since its passage. But the only real debate over it was the one that unfolded violently on a southern stage in 1965. [voice-over] For several days, the Reverend Martin Luther King led civil rights activists in peaceful marches from Selma to Montgomery, Alabama to help focus national attention on the plight of disenfranchised blacks. Under orders from then- Governor George C. Wallace, club-wielding state troopers brutally as- saulted the marchers in an attempt to stop them. But under the protection of the national Guard and the watchful eye of the national media, Dr. King and his army of demonstrators finally reached Montgomery.

MARTIN LUTHER KING: They told us we wouldn`t get here. There were those who said that we would get here only over their dead bodies. All the world today knows that we are here, and we are standing before the forces of power in the State of Alabama saying we ain`t gonna let nobody turn us around, [cheering]

HUNTER-GAULT [voice-over]: National response to the brutality was such that five months later, President Lyndon Johnson signed the Voting Rights Act into law.

LYNDON B. JOHNSON: This law covers many bases, but the heart of the act is plain: wherever by clear and objective standards states and counties are using regula-tions or laws or tests to deny the right to vote, then they will be struck down. If it is clear that state officials still intend to discriminate, then federal examiners will be sent in to register all eligible voters. This good Congress -- the 89th Congress -- acted swiftly in passing this act, and I intend to act with equal dispatch in enforcing this act. [applause]

HUNTER-GAULT: The impact of the law has been no less dramatic, particularly in the Deep South. Blacks have made enormous gains, both in their access to the ballot box and to elective office. Black voter registration has risen from two million to over nine million, and black political representation is up from 400 elected or appointed officials to about 6,000. In the Deep South specifically, more than 1,800 blacks were elected to office last year compared to 156 in 1968. Enter now the debate over what many civil rights advocates regard as the single most important piece of civil rights legislation in the country`s history. Robin?

MacNEIL: The key to the effectiveness of the voting rights act, supporters say, is its enforcement provision. Under this section of the law, places which once used literacy tests to discriminate are now required to get Justice Department approval before changing any local election laws. This process -- known as pre-clearance -- was designed to prevent past offenders from finding other ways to discriminate, such as last-minute changes in polling places. Originally, the pre-clearance provision was aimed at six southern states with a history of discrimination. It has since been expanded to cover all of nine states and parts of 16 others. Although the Reagan administration has yet to take a position, battle lines are already being drawn around the country. One city that is strongly opposed to the act`s enforcement provision is Rome, Georgia. Last year it lead an unsuccessful fight right up to the Supreme Court in an effort to seek exemption from the statute. Robert Brinson is Rome`s city attorney. He joins us tonight in the studios of public television station WETV in Atlanta. Mr. Brinson, why would you oppose the act as it stands, and extending it?

ROBERT BRINSON: Mr. MacNeil, the city -- and me in particular -- having tried the City of Rome case before the Supreme Court, is not opposed to the extension of the act itself. But to the present pre-clearance provisions. That is. Section 5, which our city and many other cities -- I guess some several thousands of jurisdictions which are subject to it -- find it to be burdensome, and find it to be an irritation to our manner of government. Even in the absence of any of the discriminatory practices which the voting rights act was designed to prohibit, and relieve the country of.

MacNEIL: Why is it so burdensome to have to conform to this act? For you as a city official?

Mr. BRINSON: Well, for one thing, any act that has anything to do with any of the electoral provisions of a small locality or school board, or any local government unit, must be submitted to the Justice Department, or in the alternative, to the District Court in Washington for pre-clearance. This is an additional step to our local processes, and our state processes -- which we must go through -- and we don`t even know that it will be approved. The courts have held that even annexations, the changing of polling places -- any minute change which may affect any electoral procedure -- must be submitted, must be pre-cleared. We have found it quite burdensome to go to the Justice Department and receive this pre- clearance. Many times we run into an interplay between state law and federal law, and if the state is required to make the electoral change, and it is not pre-cleared by the Justice Department, then the city must wait for an entire year until the general assembly of the state meets again before it can enact and enforce that law.

MacNEIL: If the enforcement provision were changed or repealed, how would blacks -- the minority in your case -- how would they know that their voting rights would be protected in Rome, Georgia?

Mr. BRINSON: Well, in the first place, I think that history will show you that the situation that existed in 1964 and `65 when the act was passed was quite different from what it is now. In addition, there seems to be a presumption of some discriminatory inclination South-wide. And that is, there were no exceptions. The city of Rome was successful in one of the most liberal courts in the country -- and that is the D C. District Court -- in proving that its representation of all the citizens of its city was quite adequate and quite responsive to all elements. We feel that the provision requiring pre-clearance is a burdensome admin-istrative provision that is not as effective as one would have you believe, and some of the Justices of the Supreme Court have even described it as a trivial but burdensome admin-istrative provision.

MacNEIL: Well, you say that Rome has no vestiges of voting rights discrimination. Would you be confident that that applied throughout the United States?

Mr. BRINSON: I would not. Not at all. I would not. And I do not think that -- I oppose not the extinction -- not the -- I oppose not the extinction of the Section 5 or its pre-clearance provisions, but I say that a subdivision or a local government unit which has proven itself not to exercise these practices should be able to exempt itself from this administrative burden.

MacNEIL: I see. In other words, you`d like to be purged of your distant past history on the basis of recent behavior.

Mr. BRINSON: Precisely. Precisely. Although the court in our case found that there had been no such behavior in even the distant past.

MacNEIL: Well, thank you, Mr. Brinson. Charlayne?

HUNTER-GAULT: For the views of another side of the voting rights issue, we go to another Georgia politician. He is Maynard Jackson, Mayor of Atlanta, and one of more than 200 blacks elected to office in Georgia since the voting rights act was passed. Mayor Jackson`s also with us from Atlanta. Mayor Jackson, in your view, what is the justification for continuing the voting rights act?

MAYNARD JACKSON: The alternative is totally unacceptable, and that`s what it used to be like before 1965. In other words, rampant violation of the right of Afro-Americans and other minorities to vote proven by a long history of that, and still continuing. I bring to your attention, for example, an entire series in the Atlanta Constitution starting December the 7th of 1980. The headline reads, "In Southern Voting, It`s Still White- Only." That ran for several days, and proves that even now the violations continue. I am not going to be an ungracious neighbor to the city of Rome by getting into any specifics on the question of Rome, Georgia; I`ll leave that for the people in Rome to say. But the court has spoken. I`m sure the court was not unfair; however, I will notice that Mr. Brinson in the course of his comments, referred to this being an irritation to our government, and said it was burden-some to go to the Justice Department. It`s an irritation to black people to be told that one day they are to vote over here, and when they go, they are told the polling places have been shifted. It is burdensome and an irritation to black people to be in Stewart County. Georgia in 1974, to run for the board of education -- as one man did -- have no opposition whatsoever, get 54 write-in votes -- I`m sorry, get 54 votes cast because there was no opposition, and then be told that you had lost by one vote to a white write-in candidate who had no verification, and no prior filing. The violations continue. Without Section 5`s pre- clearance, which is a necessity, to protect the sacredness of the right to vote, we will see a return to pre-1965 abuses.

HUNTER-GAULT: Do you think. Mayor, that your election would have been possible without the voting rights act?

Mayor JACKSON: I doubt it seriously because it is my feeling that the `65 voting rights act made the difference. In fact, even Mr. Brinson, the Rome, Georgia city attorney, said that Rome was quite different before 1965 than what it is now. And the answer is, you bet your bottom dollar. And the reason is the voting rights act of 1965. The empowerment of blacks to have the same rights -- not more than but the identical right to vote of anybody else -- has changed how the ballgame is played. Now blacks must be respected in the same way that whites have been at the ballot box. I would say to you that the climate changed dramatically. In 1965 the very first black elected official in Atlanta`s history -- in city government -- was elected, and then in 1969, four years later, I was elected vice- mayor. The climate changed South-wide, but it still has not changed enough.

HUNTER-GAULT: Of course, that was part of Mr. Brinson`s argument -- that com-munities that had purged themselves of the sins of the past -- and because of the kinds of things you were just able to cite -- that there really was no longer the need for the voting rights act.

Mayor JACKSON: I wish I could say that were the case, but the facts overwhelmingly indicate the contrary.

HUNTER-GAULT: Do you think that the kinds of problems that you just described a moment ago exist solely in the South, or they exist outside of the South as well?

Mayor JACKSON: Well, interesting question. I think they exist where states historically have failed to give fair and equal treatment to minorities. Now that means therefore that you look at the `65 voting rights act as amended, and you see that it applies not just to southern states, as some people would have us believe; it in fact applies in part to certain parts of New York, I think to Arizona, to Alaska, some counties in California. It is not anti-South; it is anti-discrimination, and that point must be made. It is not anti-region; it is anti-discriminatory practice, and it tracks those states and those counties which used to use literacy tests to discriminate against Afro-Americans, Hispanic Americans, and other minorities in violation of our constitutionally protected right to vote -- the most sacred right in a democracy.

HUNTER-GAULT: All right. We`ll come back. Robin?

MacNEIL: A number of Congressmen have already signaled their opposition to extending the voting rights act in its present form. One of them, Henry Hyde of Illinois, is the ranking Republican on the Judiciary subcommittee which held the hearings yesterday and today. Congressman Hyde, what`s wrong with keeping the voting rights act as it stands?

Rep. HENRY HYDE: Well, I`d like to make it crystal clear that the voting rights act is in place, and the extensions do not pertain to the body and the bulk of the voting rights act. A lot of the permanent parts, which have to do with illegalizing literacy tests, poll taxes, and that sort of thing -- that`s law, and it`s permanent law. The provision of federal observers and federal registrars where voting rights abuses occur -- that`s permanent law. The provision of attorneys` fees to successful complainants -- that`s permanent law. So when you talk about the voting rights act being extended, we`re only talking about one portion, and that is the pre- clearance portion, which is mandated on these few jurisdictions that Mayor Jackson has just talked about. Now my position on this is not final nor firmed up. It just seems to me in looking at the statistics in terms of the number of objections that have been made to the 35,000 submissions to the Justice Department since 1965, I think about 3 percent have been objected to -- that we must recognize the civil rights act has been in place for 17 years, and these states which are stigmatized with having to pre-clear every single minuscule law that impacts on elections -- their good conduct -- and I agree it`s relative -- ought to be given some credit. You ought to provide some incentive for these jurisdictions to continue to clean up their act, so to speak. I concede the brutality of the situation before `64. But I think we should recognize improvements have occurred in black registration, in the number of black people appointed and elected to office. But most importantly, if the pre-clearance section is permitted to dissolve, I`m proposing in its place, not the abandonment of pre-clearance, nor ineffective remedies, but in its place, effective remedies, but removing the geographic stigma from these few states that I think have shown some progress.

MacNEIL: Well, what -- if you keep it in place but remove it from those, then what do you do? Do you extend it to all communities?

Rep. HYDE: Well, yes. What I`m suggesting -- first of all. Section 3c of the act is nationwide in its application. And that permits any judge to impose equitable relief and stop the imposition of a new law that is deemed to be a voting rights abuse, and even impose pre-clearance on that jurisdiction. That`s for the isolated voting rights abuse, and that applies anywhere in the country, and that`s not going to be amended or be taken out of the law. But I`m proposing in place of the mandatory pre-clearance for these jurisdictions that no matter what they do, they can`t bail out or get out from under this mandatory pre-clearance. In its place a new section that says were there is a pattern or practice of voting rights abuse, and that means not the isolated Section 3c instance, but more than one. Two. And the environment can go back five years or so for all I care. Where a pattern or practice can be shown, the court then can impose mandatory pre- clearance for four years. I think that makes all the states equal in terms of their good conduct. It applies nationwide, and restores some of the sovereignty that a sovereign state ought to have.

MacNEIL: Doesn`t that put the burden on individuals -- as it was before 1965 when it didn`t work -- to come to a court and prove they`ve been discriminated against?

Rep. HYDE: Yes it does, and that is a burden, and I concede that. It`s much quicker, and efficient, to go to some assistant attorney general and get his or her okay. But that efficiency, desirable as it is, must be measured against justice itself. That`s why we have courtrooms. Now, attorney`s fees are available for the private lawyer to bring these suits, and I think civil rights suits get expeditious treatment, so -- but again, I want to point out, I`m offering this as a compromise between the Rodino-Don Edwards position of another 10-year extension, and some of the Senate views, which are no extension whatsoever. I wouldn`t want to see that happen, but -- so it`s a compromise.

MacNEIL: I see. Well, thank you. Charlayne?

HUNTER-GAULT: There is of course another side to that story, too. For that, we go to the chairman of the Judiciary subcommittee, Don Edwards, Democrat of California. Congressman Edwards shepherded most of the major civil rights bills of the `70s through the House. Congressman Edwards, what`s wrong with Congressman Hyde`s position?

Rep. DON EDWARDS: The problem with Congressman Hyde`s position is that it essen-tially is the law that we had before the `65 act -- where you have to go to court. And by the time you get through with court and appeals, the election is over. And it`s terribly expensive.

HUNTER-GAULT: And you don`t buy the argument that he just made for doing it that way?

Rep. EDWARDS: No. That -- I think Congressman Hyde`s suggestion cuts the heart out of Section 5, and Section 5 is the key to the voting rights bill -- pre-clearance.

HUNTER-GAULT: You`ve just completed the first hearings on the act by taking testi-mony from civil rights leaders and others on the measure. What was the gist of their testimony?

Rep. EDWARDS: Well, all of the witnesses testified that, yes, it has been a wonderful nationwide law, and that they want its extension, and that there are still many, many problems that have to do with discrimination in voting against Hispanics and black Americans.

HUNTER-GAULT: How much reaction was there to the argument that Congressman Hyde just advanced about the burden of proof for the intent of the discrimination being placed on citizens -- that citizens would have to come into court and prove the discrimina-tion?

Rep. EDWARDS: Well, these were favorable witnesses, but all of them said about what I said, and that was that Congressman Hyde`s idea goes back to the old days where all of the expense and -- if you win, you get your attorney fees paid, but none of them endorsed Congressman Hyde`s suggestion.

Rep. HYDE: Well, could I just jump in for just a second?

HUNTER-GAULT: Just one second; we`ll get back to you in a minute. Let me just ask Congressman Edwards another question. At this point, based on the kind of evidence that they have come forward with, do you think there is enough support for continuing the act in its present form?

Rep. EDWARDS: Yes, there is lots of evidence that there are new techniques in dis-crimination, and they are being used every day.

HUNTER-GAULT: Like what, for example?

Rep. EDWARDS: For example, the cities of Houston and Ft. Worth where they - - no, Houston and Dallas, where they annexed a number of white sections outside the city and then declared that henceforth, city elections would be at-large, therefore depriving His-panic-Americans and black Texans of the right to have their own districts. San Antonio was another example where the city fathers of San Antonio said, "We`re going to have our elections at large."

HUNTER-GAULT: That means that everybody in the city votes for everybody and not district-by-district.

Rep. EDWARDS: That`s right. And therefore the Hispanics didn`t have a chance of electing one of their own.

HUNTER-GAULT: What about Mr. Brinson`s point that the South is being singled out unfairly and being made to pay for sins it has eradicated? Of course, you just cited Texas and so on, but do you think that the act should be expanded nationally?

Rep. EDWARDS: No, it should remain just the way it is, and for another 10 years.

HUNTER-GAULT: Why is that?

Rep. EDWARDS: Because we haven`t at all reached the heights of registration; blacks and Hispanics are way under-registered to vote, and in holding public office in the areas that are affected by Section 5, I think 4 or 5 percent of the elected officials are black. And they hold very minor positions. We have a long way to go; there`s a lot of discrimination, and the bill should be extended.

HUNTER-GAULT: All right, Robin?

MacNEIL: Mayor Jackson, what do you think of Congressman Hyde`s proposal to, in effect, as I understand it, excuse those communities from pre- clearance who have had a good record since the act?

Mayor JACKSON: I think it`s totally unjustified. The idea, by the way, of killing the guts of the act, I think, will achieve exactly what the opponents of the act want to achieve, and that is to gut the act, to reduce the growing but still inadequate, fair, constitutional, political rights of Afro-Americans. I think the motivation is anti-black; I believe it is discriminatorily intended, and I think it stinks. Let`s look at a couple of things. We`re in a state right here -- Georgia -- that is the worst offender in voting rights violations of any state in the country with the exception of Texas. There are in this state 23 predominantly black counties -- 23 -- from which there is not a single black state elected official; in which there is not a single black sheriff. We still have a long way to go. Section 5 is the guts. The pre-clearance matter is not hard. You file. If you want to change from districts to at-large -- you`re a city for example -- 60 days the Justice Department has to respond -- 120 at the most. If they do not respond, you`re okay. If they respond and say that you`re okay, that you`re cleared, no problem. If they come at you, of course, you`ve got to be able to defend where you stand.

MacNEIL: Let`s go to Mr. Brinson who is beside you there. Mr. Brinson, in effect, I think, the Mayor is saying that the motivation is anti-black, and that by doing what you propose -- exempting communities like yours with a good recent record -- you would be tearing out the guts of the act.

Mayor JACKSON: Let`s be sure that you understand what I said. I said the legislation now proposed in the U.S. Congress in my opinion has those effects and those motivations. My reference was not to Mr. Brinson.

MacNEIL: I understand. No, I was imputing that to -- I was just carrying that over because he also thought that Rome should be excused because it had a good record. Wasn`t that right, Mr. Brinson?

Mr. BRINSON: That`s correct. And my point is this. It`s very much like Congressman Hyde`s proposal except there`s something that we did in our case. Section 4 of the act provides that a subdivision or a state which is subject to the act may bail out from its coverage if it proves that it has not practiced these actions within 17 years prior to the filing of the suit. The city of Rome attempted to bail out from coverage which would have required a construction of the statute to allow cities rather than the whole state of Georgia to bail out. The Supreme Court held that that was not to apply to individual cities within covered states. My point is that - - since we did prove, and the Court found that we had established the factual predicate that would have permitted us to bail out if it had been available -- and my point is that we should be able to bail out, and there should be some positive reinforcement to a cleaned-up act.

MacNEIL: Okay. Congressman, you wanted to reply? Congressman Hyde?

Rep. HYDE: Yes, very much. I`m very sorry that the Mayor has tried to interpret my motivation as being anti-black. That is not my motivation, and I regret that he has said that. My motivation is to try and salvage as much as possible from the pre-clearance section, and recognize the fact that having your vote counted is just as important some-times as being able to register. There are voting abuses in Chicago, in other places, that aren`t focused on here. Now, you either consider a compromise along the line or you deal with Senator Thurmond and Senator Hatch over in the Senate. Now, to accuse me of being anti-black and discriminatory in intent is terribly wrong, and I`ll tell you, not helpful to those of us that are trying to work out a position to save as much of the pre-clearance, and yet recognize that many states have made a good-faith effort to improve their electoral practices --

MacNEIL: Congressman, I hate to interrupt you, but we have to leave it there, and no doubt we`ll be coming back to this as the debate continues. In Atlanta, Mayor Jackson and Mr. Brinson, thank you for joining us. Congressman Hyde, Congressman Edwards, thank you. Good night, Charlayne.

HUNTER-GAULT: Good night, Robin.

MacNEIL: That`s all for tonight. We will be back tomorrow night. I`m Robert MacNeil. Good night.