Right Turn

William Bradford Reynolds, the Reagan Administration, and Black Civil Rights

Raymond Wolters

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9781138514225
• eBook ISBN: 9781351292429
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Political Process
• Index: Politics & International Relations

In the spirit of the time, the Civil Rights Act of 1964 and the Voting Rights Act of 1965 called for nondiscrimination for American citizens, seeking equality without regard for race, color, or creed. After the mid-1960s, to make amends for wrongs of the past, some people called for benign discrimination to give blacks a special boost. In business and government this could be accomplished through racial preferences or quotas; in public education, by considering race when assigning students to schools. By 1980 this course reached a crossroads.

Raymond Wolters maintains that Ronald Reagan and William Bradford Reynolds made the "right turn" when they questioned and limited the use of racial considerations in drawing electoral boundaries. He also documents the Reagan administration's considerable success in reinforcing within the country, and reviving within the judiciary, the conviction that every person black or white should be considered an individual with unique talents and inalienable rights.

This book begins with a biographical chapter on William Bradford Reynolds, the Assistant Attorney General who was the principal architect of Reagan's civil rights policies. It then analyzes three main civil rights issues: voting rights, affirmative action, and school desegregation. Wolters describes specific cases: at-large elections and minority vote dilutions; congressional districting in New Orleans; legislative districting in North Carolina; the debates over the Civil Rights Act of 1964; social science critiques of affirmative action; the question of quotas; and school desegregation and forced busing.

Because Ronald Reagan and William Bradford Reynolds were men of the right, and because most journalists and historians are on the left, Wolters feels the "people of words" have dealt harshly with the Reagan administration. In writing this book, he hopes to correct the record on a subject that has been badly represented. Wolters points out that, beginning in the 1980s and continuing in the 1990s, the Supreme Court endorsed the legal arguments that Reagan's lawyers developed in the fields of voting rights, affirmative action, and school desegregation. In Right Turn, Wolters responds to those who claimed that Reagan and Reynolds were racists who wanted to turn back the clock on civil rights, and he describes civil rights cases and controversies in a way that is comprehensible to general readers as well as to lawyers and historians.

Part I
Voting Rights

Introduction to Part I

In 1965 President Lyndon B. Johnson ordered his staff to prepare the “goddamndest, toughest voting rights bill” they could devise. The ensuing Voting Rights Act turned out to be more far-reaching than Johnson had recognized at the time. The new law quickly achieved its original objective—guaranteeing blacks the right to register and vote. Subsequently, as a result of twenty years of interpretation, revision, and implementation, the law was turned into an affirmative action program for black politicians. By the 1980s the United States had reached a point almost no one had envisioned in 1965. Allegations of racial discrimination in voting rarely involved access to the polls; they involved, instead, charges that local governments had failed to arrange electoral boundaries to facilitate the election of blacks.¹

Voting rights activists vigorously criticized William Bradford Reynolds and the policies of the Reagan administration. The activists initially faulted Reynolds and Reagan for opposing a 1982 proposal that Reynolds said amounted to a quota system for black politicians. Then, after an amended version of the proposal became law, voting rights activists faulted Reynolds for not insisting that local governments must create the maximum number of districts that were safe for black candidates (that is, districts where blacks made up about 65 percent of the voters). Asserting that Reynolds was dragging his feet on affirmative gerrymandering, the activists accused the administration of disrespect for the established law.²

At the same time, other critics paradoxically found fault with the Reagan administration for going too far on voting rights. Although conceding that Reynolds had parted company with voting rights activists in some instances, these critics said Reynolds generally sided with the civil rights organizations on voting rights—but that he did so as part of a scheme to use voting rights to boost the fortunes of the Republican Party.³

The allegations were grave. But were they well-founded? To answer, it is necessary to review the course of voting rights since 1965.

Notes

1. Abigail M. Thernstrom, Whose Votes Count? Affirmative Action and Minority Voting Rights (Cambridge: Harvard University Press, 1987), 15; Steven R. Lawson, Black Ballots: Voting Rights in the South, 1964–1969 (New York: Columbia University Press, 1976); Lawson, In Pursuit of Power: Southern Blacks and Electoral Politics, 1965–1982 (New York: Columbia University Press, 1985).

2. Frank R. Parker has offered this explanation of what is sometimes called the “65 percent rule”: “[S]tatistics confirm that not only must districts be majority-black for black voters to elect candidates of their choice, but generally the districts must be at least 65 percent black in population and 60 percent black in voting-age population, a standard recognized...as the ‘65 percent rule.’ This figure reflects the realities of black political participation that, because of socioeconomic differences and past discrimination, blacks generally constitute a smaller proportion of the voting-age population than of the total population, are registered to vote at lower rates than whites, and turn out to vote at lower rates than whites. Consequently, the black population percentage of a given election district must be augmented 5 percent for voting-age disparities, 5 percent for registration disparities, and 5 percent for turnout disparities, so that at 65 percent, black voters will have a chance of electing candidates of their choice.” Black Votes Count (Chapel Hill: University of North Carolina Press, 1990), 138–39.

3. For examples, see the articles by Matthew Cooper and Abigail M. Thernstrom, cited below in chapter 7, notes 3 and 4.

1
Preclearance

The Voting Rights Act of 1965 gave the federal government powerful weapons for fighting racial discrimination in nine southern states. In theory, these states had been singled out for special treatment because they met two criteria—they had used literacy tests, and fewer than 50 percent of their adults had voted in the 1964 presidential elections. In fact, they had been singled out because racial discrimination was known to be especially prevalent in certain states and counties.¹

The Voting Rights Act targeted these areas. In addition to banning racial discrimination, it suspended literacy tests, authorized the federal government to dispatch officials to register voters and to observe the casting and counting of ballots, and required the “covered” jurisdictions to seek approval or “preclearance” from either the attorney general of the United States or from the District Court for the District of Columbia for any electoral changes that were made after 1 November 1964.²

The ban on racial discrimination was permanent. It did not need periodic extensions. But because preclearance was at odds with dual federalism and states’ rights, the Voting Rights Act established preclearance for only five years. In 1970 the practice was extended for another five years, and in 1975 there was a second extension until 6 August 1982. A “bailout” provision stated that, at that time, districts that had not used any discriminatory devices since 1965 would be released from preclearance.³

Preclearance was considered necessary because prior to 1965 discrimination against blacks had continued despite the Fifteenth Amendment’s guarantee that the right to vote should not be denied or abridged on account of race. In 1960, only 29.1 percent of all voting age blacks were registered to vote in eleven southern states, compared with 61.1 percent of whites.⁴

To insure that the Fifteenth Amendment was enforced across the land, voting rights activists said it was necessary to go beyond a 1957 law that gave the Department of Justice the power to bring lawsuits against racial discrimination in voting. They demanded close federal supervision of southern elections, even if this supervision infringed upon rights that had been reserved to the states. Jack Greenberg, a lawyer for the NAACP, recalled instances in the past where electoral arrangements were struck down by courts as discriminatory but replaced with other devices that accomplished the same end. A requirement that voters must have “good character” might be substituted for the literacy test, or a complicated residency requirement might be devised. Some laws were enacted with knowledge that they would affect blacks disproportionately. One Louisiana law, for example, disfranchised seven categories of people, including partners in common-law marriages and parents of illegitimate children.⁵

Some southern officials boasted about this. In 1960 Mississippi governor James Coleman candidly acknowledged that elected officials were using ingenious laws to prevent blacks from voting. “Any legislature can pass a law faster than the Supreme Court can erase it,” Coleman observed.⁶

To protect the voting rights of minorities, the Voting Rights Act of 1965 required states with a past record of discrimination to seek federal approval of any change that touched on voting. If they thought at all about the system of federalism, voting rights activists apparently regarded states’ rights as existing in a category akin to constitutional guarantees suspended in wartime. They said the southern states had forfeited the right to control their elections. “Preclearance did not just happen,” explained Herbert O. Reid, a lawyer for the NAACP. “It resulted from the ‘hard knocks’ of experience.”⁷

In 1965 Ronald Reagan saw things differently. He stressed that Article I of the Constitution authorized states to set their own qualifications for voting. The Fifteenth Amendment limited states’ rights—by giving the federal government the power to make sure that states did not discriminate racially. But restricting the franchise on the basis of literacy was not the same as restricting because of race. Some states and districts had invited federal regulation because they had used literacy tests to camouflage racial discrimination, but other areas were using literacy tests impartially because they thought the ability to read and write promoted an intelligent use of the ballot. According to Reagan, the Fifteenth Amendment did not give anyone the right to vote. It allowed states to set qualifications for voting as long as they did not abridge or deny the right to vote because of race, color, or previous condition of servitude. It allowed states to have literacy tests as long as the tests were not used to disguise racial discrimination.

Guilty districts could be prosecuted under existing laws, Reagan maintained. But the fact that some areas were guilty was no excuse for piling one constitutional wrong upon another. Reagan thought the Voting Rights Act was a bad bill because it sought to remedy a violation of one part of the Constitution, the Fifteenth Amendment, by assaulting the very foundation of the Constitution, the principle of federalism. Reagan said he was “in complete sympathy” with the goals and purposes of the Voting Rights Act, but nevertheless opposed the legislation because it was, “in my view, unconstitutional.”⁸

Reagan’s position should have appealed to William Bradford Reynolds. Like Reagan, Reynolds believed that the genius of U.S. constitutional government lay in its division of sovereignty, its separation of powers. Under the system designed by the nation’s founders, Reynolds said, there were guarantees of states’ rights and limits on the power of the national government. Reynolds was opposed to what he called “a radical enlargement of the national government’s powers...over the legitimate authority of the States.” Reynolds thought the dispersion of power, and the autonomy of the states, had played a key role in protecting individual liberties. He considered it “tragic” that by the 1980s “the framers’ original commitment to limited and decentralized government...ha[d] all but disappeared.”⁹

Yet despite his agreement with Reagan on the theory of federalism, Reynolds never opposed the Voting Rights Act. In 1965, when he was a law student, Reynolds viewed the legislation as necessary. He continued to believe the Voting Rights Act was a useful tool to combat voting discrimination in the 1980s.¹⁰

However, Reynolds did have some misgivings. He knew it was arbitrary to have a 50 percent test to determine which districts could have a literacy test. Under the terms of the 1965 Voting Rights Act, for example, Hyde County, North Carolina, was “covered” and could no longer use a literacy test, because only 49.7 percent of the voting age population had cast ballots in 1964; but in New York City, Manhattan was not covered because 51.3 percent had voted there.¹¹

The arbitrariness was especially galling because by 1969 blacks were more likely to be voting in the covered states than elsewhere. By 1980,72.2 percent of adult blacks were registered to vote in Mississippi, as compared with 46.5 percent in New York, 48.9 percent in New Jersey, and 52.4 percent in Washington, D.C. But, because of past sins, the southern states had been singled out for preclearance, while no such sanction was applied to the District of Columbia, New Jersey, and most of New York. Because of preclearance, every time a southern jurisdiction made an electoral change—every time it moved a polling place or changed the hours for registration—the jurisdiction had to have prior approval from the attorney general in Washington.¹²

The preclearance feature of the act was scheduled to end in 1982 if it was not renewed by Congress. Many southerners regarded the continuation of preclearance as an unfair form of regional discrimination. Former North Carolina Senator Sam Ervin even said that voting rights activists “harbored prejudices against Southerners akin to those they professed to be desirous of eradicating from Southern minds.” Senator Thad Cochran of Mississippi complained that because of preclearance local officials had to “go to Washington, get on their knees, kiss the ring, and tug their forelock to third-rate bureaucrats.”¹³

Emory Folmar, the mayor of Montgomery, Alabama, expressed the complaint of many white Southerners. Since there had not been a “sustained complaint” against his city since 1965, Folmar said it was unfair to require Montgomery to prove its innocence “before some faraway tribunal.” Folmar noted that preclearance “presupposes guilt.” “Treat us as equals,” he pleaded. “If we do something wrong, right the wrong.” But under the U.S. legal system, people were not supposed to be i...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgments
• Introduction
• Part I: Voting Rights
• Part II: Affirmative Action
• Part III: School Desegregation
• Appendix: The Bob Jones Case
• Index