9.20 Myths about the Voting Rights Act

9.20.1 MYTH: Section 2 of the Voting Rights Act precludes the National Popular Vote compact.

QUICK ANSWER:

  • The National Popular Vote compact would not deny or abridge the right to vote. On the contrary, it would make every person’s vote for President equal—consistent with a main goal of the Voting Rights Act.
  • The National Popular Vote compact received pre-clearance from the Department of Justice in 2012 under section 5 of the Voting Rights Act.

Dave Gringer has argued that the National Popular Vote compact:

“may run afoul of sections 2 and 5 of the Voting Rights Act—as either minority vote dilution or retrogression in the ability of minority voters to elect the candidate of their choice.”[470],[471]

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 obtained in two ways:

  • 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 common path).

The National Popular Vote compact manifestly would make every person’s vote for President equal throughout the United States in an election to fill that office. It is, therefore, consistent with the goals 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 and county boards). Opponents of the National Popular Vote compact often quote from these cases involving multi-member representative legislative bodies.[472] However, these cases do not bear on elections to fill a single office (i.e., the Presidency).

In Butts v. City of New York Dept. of Housing Preservation and Development, the United States Court of Appeals for the Second Circuit addressed the question of whether the Voting Rights 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.”[473]

The court also stated:

There is no such thing as a ‘share’ of a single member office.” [Emphasis added]

It 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 equal representation and therefore cannot violate the Act.”

In Dillard v. Crenshaw County, the U.S. Court of Appeals for the Eleventh Circuit addressed the question of whether the at-large elected chairperson of the Crenshaw County Commission in Alabama 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.”[474]

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,[475] 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. Pre-clearance was required when more than one judge was to be elected, but not when only one judge was to be elected.

Given that every vote would be equal under the National Popular Vote compact, the assertion that the compact would diminish the influence of minorities must be based on the premise that the current state-by-state winner-take-all system of electing the President gives minorities more than their fair share of influence. As discussed in section 9.20.2, the facts do not support the notion that minorities receive more than their fair share of influence under current state winner-take-all statutes. The facts do not support Gringer’s contention that the National Popular Vote compact would result in:

“minority vote dilution or retrogression in the ability of minority voters to elect the candidate of their choice.”[476]

Finally, despite Gringer’s arguments, it should be noted that the National Popular Vote compact received pre-clearance from the Department of Justice under section 5 of the Voting Rights Act in January 2012. This pre-clearance was granted shortly after California enacted the National Popular Vote compact in 2011.[477]

9.20.2 MYTH: The political influence of racial and ethnic minorities would be diminished by a national popular vote.

QUICK ANSWER:

  • Given that every vote would be equal under the National Popular Vote compact, the assertion that the compact would diminish the influence of minorities must be based on the premise that current state winner-take-all statutes give minorities more than their fair share of influence. There is no evidence that this is the case.

Six Colorado professors issued a written statement at a Colorado legislative committee hearing in 2007, arguing that the National Popular Vote plan would:

“diminish the political influence of racial and ethnic minorities in the United States in presidential elections.”[478]

Curtis Gans (an opponent of the National Popular Vote plan) made a similar claim in a speech at the National Civic Summit in Minneapolis on July 17, 2009.

Given that every vote would be equal under the National Popular Vote compact, the assertion that the compact would diminish the influence of minorities must be based on the premise that the current state-by-state winner-take-all system of electing the President gives minorities more than their fair share of influence.

The facts do not support the notion that minorities receive more than their fair share of influence under current state winner-take-all statutes. 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%.”[479]

The National Popular Vote bill has been sponsored by 135 minority state legislators and endorsed by organizations such as the National Black Caucus of State Legislators, the National Latino Congreso, and the NAACP.

In endorsing the National Popular Vote bill, the NAACP cited the fact that it supported “the ideal of one person, one vote.”

Finally, it should be noted that the National Popular Vote compact received pre-clearance from the U.S. Department of Justice under section 5 of the Voting Rights Act in January 2012. This pre-clearance was granted shortly after California enacted the National Popular Vote compact in 2011.[480]

Footnotes

[470] Gringer, David. 2008. Why the National Popular Vote plan is the wrong way to abolish the Electoral College. 108 Columbia Law Review 182. January 2008. Pages 182–230.

[471] In fact, Gringer has gone so far as to state (without any knowledge about the operation of the National Popular Vote organization or any attempt to acquire the facts) that the authors of the National Popular Vote compact have “failed to recognize that their plan implicates the Voting Rights Act.” The fact that pre-clearance would be required was recognized by the National Popular Vote organization as early as the period when the National Popular Vote legislation was being debated by the California Assembly in 2006.

[472] Gringer, David. 2008. Why the National Popular Vote plan is the wrong way to abolish the Electoral College. 108 Columbia Law Review 182. January 2008. Pages 182–230.

[473] Butts v. City of New York Dept. of Housing Preservation and Development, 779 F.2d 141 at 148 (1985).

[474] Dillard v. Crenshaw County, 831 F.2d 246 at 253 (11th Cir. 1987).

[475] Southern Leadership Conference v. Siegelman, 714 F. Supp. 511 at 518 (M.D. Ala. 1989).

[476] Gringer, David. 2008. Why the National Popular Vote plan is the wrong way to abolish the Electoral College. 108 Columbia Law Review 182. January 2008.

[477] Letter dated January 13, 2012, concerning Assembly Bill 459 (the National Popular Vote compact) from T. Christian Herren of the Civil Rights Division of the Department of Justice to Robbie Anderson, Senior Elections Counsel of the state of California.

[478] Statement signed by Professors Robert D. Loevy, Danial Clayton, Edward Roche, Robert M. Hardaway, Jim L. Riley, and Dennis Steele.

[479] FairVote. 2006. Presidential Elections Inequality: The Electoral College in the 21st Century. http://www.fairvote.org/media/perp/presidentialinequality.pdf.

[480] Letter dated January 13, 2012, concerning Assembly Bill 459 (the National Popular Vote compact) from T. Christian Herren of the Civil Rights Division of the Department of Justice to Robbie Anderson, Senior Elections Counsel of the state of California.