18. Myths about the Voting Rights Act
18.1 MYTH: Section 2 of the Voting Rights Act precludes the National Popular Vote compact.
The purpose of the Voting Rights Act is to guarantee voting equality throughout the United States (particularly in relation to racial minorities that historically suffered discrimination in certain states or areas). Section 2 of the Act prohibits the denial or abridgment of the right to vote. Section 5 requires certain states (that historically violated the right to vote) to obtain advance approval for proposed changes in their state election laws to ensure that they do not have a discriminatory purpose or effect. The advance approval can be in the form of a favorable declaratory judgment from the U.S. District Court for the District of Columbia or pre-clearance by the U.S. Department of Justice (the more commonly chosen path).
The National Popular Vote bill manifestly would make every person's vote for President equal throughout the United States in an election to fill a single office (the Presidency). It is entirely consistent with the goal of the Voting Rights Act.
There have been court cases under the Voting Rights Act concerning contemplated changes in voting methods for various representative legislative bodies (e.g, city councils, county boards). However, these cases do not bear on elections to fill a single office (i.e., the Presidency).
In Butts v. City of New York, the United States Court of Appeals for the Second Circuit addressed the question whether the Act applies to a run-off election for the single office of mayor, council president, or city comptroller in a New York City primary election. The court opined:
"We cannot…take the concept of a class's impaired opportunity for equal representation and uncritically transfer it from the context of elections for multi-member bodies to that of elections for single-member officers."100
The court also stated:
"There is no such thing as a 'share' of a single member office."
The court then added:
"It suffices to rule in this case that a run-off election requirement in such an election does not deny any class an opportunity for equality representation and therefore cannot violate the Act."
In Dillard v. Crenshaw County, the Eleventh Circuit addressed the question of whether the at-large elected chairperson of the Crenshaw County, Alabama Commission is a single-member office. The office's duties are primarily administrative and executive, but also include presiding over meetings of the commissioners and voting to break a tie. The court stated that it was unsatisfied that
"The chairperson will be sufficiently uninfluential in the activities initiated and in the decisions made by the commission proper to be evaluated as a single-member office."101
The case was remanded to the U.S. District Court for either "a reaffirmation of the rotating chairperson system" or approval of an alternative proposal preserving "the elected integrity of the body of associate commissioners."
In 1989, in Southern Leadership Conference v. Siegelman,102 the U.S. District Court for the Middle District of Alabama distinguished between election of a single judge to a one-judge court and the election of multiple judges to a single Alabama circuit court or judicial court. Preclearance was required when more than one judge was to be elected, but not when one judge was to be elected.
In any event, those who argue that section 2 of the Voting Rights Act precludes the National Popular Vote compact do, however, concede that congressional consent to the National Popular Vote compact would eliminate the basis for any litigation under section 2.
18.2 MYTH: Section 2 of the Voting Rights Act precludes the National Popular Vote compact.
In fact, the opposite is the case. The current state-by-state winner-take-all system of electing the President (i.e., awarding all of a state's electoral votes to the presidential candidate who receives the most popular vote in each separate state) is disadvantageous to racial minorities.
As FairVote's Presidential Election Inequality report points out:
"In the 1976 presidential election, 73% of African Americans were in a classic swing voter position; they lived in highly competitive states (where the partisanship is 47.5%–52.5%) in which African Americans made up at least 5% of the population. By 2000, that percentage of potential swing voters declined to 24%. In 2004, it fell to just 17%."103
The current system of electing the President diminishes the political value of every vote in two-thirds of the states. The cause of this diminishment is the state-by-state winner-take-all rule. Presidential candidates have no reason to poll, visit, advertise, organize, or pay attention to the concerns of states where they are safely ahead or hopelessly behind. Candidates concentrate their attention on a small handful of closely divided battleground states. In 2004, candidates concentrated over two-thirds of their money and campaign visits in just five states; over 80% in nine states; and over 99% of their money in just 16 states. As early as the spring of 2008, both major political parties acknowledged that there would be only 14 battleground states in 2008 (involving only 166 of the 538 electoral votes).104 In 2008, candidates concentrated over two-thirds of their campaign events and ad money in just states, and 98% in just 15 states.105 In other words, except for fund-raising, two-thirds of the states were ignored under the current system of electing the President in the 2008 election. Washington Post columnist David Broder accurately (albeit undiplomatically) referred to the non-battleground states as "unimportant" "throwaway" states.106
100 Butts v. City of New York, 779 F.2d 141 at 148 (1985).
101 Dillard v. Crenshaw County, 831 F.2d 246 at 253 (11th Cir.1987).
102 Southern Leadership Conference v. Siegelman, 714 F. Supp. 511 at 518 (M.d. Ala.,1989).
103 Fair Vote. Presidential Elections Inequality: The Electoral College in the 21st Century. http://www.fairvote.org/media/perp/presidentialinequality.pdf.
104 "Already, Obama and McCain Map Fall Strategies." New York Times. May 11, 2008.
105 http://fairvote.org/tracker/?page=27&pressmode=showspecific&showarticle=230.
106 Washington Post. May 7, 2008.
