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Administration's Position on the Voting Rights Act

September 13, 1986

The suggestion in the Washington Post (Times, Aug. 30) that the Justice Department "won't assess possible bias in election plans" is absolutely wrong.

The fact is that, as to any and all voting changes submitted to the attorney general for review under Section 5 of the Voting Rights Act, it has been, and will continue to be, the policy and practice of this department to deny "pre-clearance" approval whenever the change smacks of racial bias. In addition, if we are not satisfied that the change is free of discriminatory effect (that is, that it results in no dilution of minority voting strength when compared with the existing electoral system), department approval will be withheld.

Nor is this the extent of our enforcement efforts in this area.

In 1982, Congress amended Section 2 of the Voting Rights Act, authorizing the attorney general or others to seek court relief from any electoral system that "results in" discrimination. Our experience over the past four years demonstrates that there is significant overlap between voting changes that run afoul of the "effects" test in Section 5 of the statute and the new "results" standard in amended Section 2, and the department has consistently refused "pre-clearance" in each such instance.

We have, moreover, since enactment of amended Section 2, taken full advantage of this new enforcement tool by going to court to challenge any voting practice or procedure that in our view operates with discriminatory "results"--and this is true notwithstanding an earlier preclearance under Section 5.

In this regard, the policy of the department has not changed: we are adamant in our pursuit of every voting practice or procedure that has a discriminatory purpose or effect.

The record compiled to date by this Administration in its enforcement of the Voting Rights Act is unprecedented in the protection afforded minority voters throughout the country.

With the benefit of amended Section 2, we have already initiated 16 lawsuits, intervened in another six cases, and defended the constitutionality of the act in 10 others.

This activity, when coupled with our remarkable success story in ensuring equal voting opportunities for all under the Section 5 pre-clearance process, puts this Administration on an unparalleled course that neither requires nor contemplates any change.

With respect to the Voting Rights Act Guidelines, this department on May 6, 1985, issued for notice and comment proposed guidelines clarifying procedures used in reviewing voting changes under Section 5 and amended Section 2. We have received and studied the comments forwarded to us and incorporated a number of them in the proposed guidelines. The final version of the guidelines is still under review and has not yet been cleared for final publication.

The guidelines make clear that the attorney general will object to any voting practice or procedure that fails to meet the Section 5 standard--whether because of a wrongful racial purpose, or a discriminatory effect or result.

In virtually all cases, this means that pre-clearance will be denied if the change is discriminatory under amended Section 2--since it will then most likely not be free of discriminatory purpose or effect.

Even in those instances where pre-clearance is warranted, moreover, if it should develop that the cleared voting practice operates with discriminatory results, the attorney general will challenge that practice in court under amended Section 2--and indeed ask that the election not be allowed to proceed while the litigation is pending-- notwithstanding the earlier Section 5 pre-clearance of the change. It is abundantly clear that this is the way Congress intended the act to be administered.

Thus, there is dual protection under the act. Section 5 pre-clearance does not always end the matter; and we will not hesitate to pursue our Section 2 remedies in court whenever such litigation is called for, even in that rare case where the practice in question initially satisfies the Section 5 inquiry.

The right to vote is too precious to take our enforcement responsibilities any less seriously.


Assistant Attorney General

Civil Rights Division


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