Kull, Andrew. The Color-Blind Constitution . Cambridge:
Harvard University Press, 1992: 213

The revolution in southern politics over the last twenty-five years-producing white southern Democrats beholden to black constituents for reelection-has proved Phillips correct. But in the immediate aftermath of the Voting Rights Act there were southern politicians who attempted, while complying with its terms, to delay its effects. Of the varied stratagems that came before the Supreme Court in 1969, in a series of cases reported as Allen v. State Board of Elections, 86 the crux of the legal problem was most distinctly presented by an act of the Mississippi legislature. Mississippi had authorized its county boards of supervisors, in their discretion, to shift their basis of representation from the single-member districts previously mandated by law to elections at large. The irresistible inference was that the purpose and effect of the change was to postpone indefinitely the day when the boards of supervisors in certain Mississippi counties would seat their first black members.
Congress had not made such conduct illegal in 1965 and was unlikely to do so even in 1969. Yet the case was one-like Green v. County School Board, or the legal challenge to the Philadelphia Plan-in which a decision that was faithful to existing law would acquiesce in a result the Court considered intolerable. The Supreme Court held by a vote of seven to two (Justices Harlan and Black dissenting) that the change from single-member districts to at-large elections was a change in a "standard, practice or procedure with respect to voting," subject to preclearance under section 5 of the Voting Rights Act.
Assuming, as seems likely, that the Mississippi election law could be shown to have been enacted with both the purpose and the effect of frustrating the political prospects of black candidates, the Warren Court in 1969 would surely have had no hesitation in finding such action unconstitutional under both the Fourteenth and the Fifteenth Amendments. But the whole point of the suit in Allen was to reach discriminatory redistricting (as opposed to voting procedures) with the extraordinary remedies of the Voting Rights Act; and the force of those remedies would have been largely dissipated had plaintiffs been required to establish defendants' discriminatory purpose. The opinion by Chief Justice Warren based the decision instead on the idea-drawn from Reynolds v. sims, the "one man, one vote" decision of 1965, that some votes count more than others:
[The case] involves a change from district to at-large voting for county supervisors. The right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot. Voters who are members of a racial minority might well be in the majority in one district, but in a decided minority in the county as a whole. This type of change could therefore nullify their ability to elect the candidate of their choice just as would prohibiting some of them from voting.
The reference to "dilution" in this new context carried significant implications. "One man, one vote" applies just as well to at-large as to district voting; so the only "dilution" in the hypothesis of the chief justice was the dilution of the influence of a racial bloc. The quoted passage is nonsense without certain powerful assumptions that were left unstated. In the view of the chief justice, the political influence of black voters depended on their being able to elect a black candidate by a black majority; and a system of representation in which black voters were unable to elect black candidates was one in which they were effectively disfranchised, at least in part. These assumptions led, in turn, to a view of "voting rights" in which the "discriminatory" treatment proscribed by the act had no necessary connection with discriminatory intent. The radical transformation of the meaning of "discrimination" is the same one that has been observed in the case of school assignments and employment practices. In the new context of "voting rights," the ultimate standard of a nondiscriminatory electoral system became the degree to which blacks in a given jurisdiction were elected to office.
The Voting Rights Act was interpreted in Allen to reach what was undoubtedly discriminatory conduct, but of a kind to which the terms of the act did not apply, and by a rationale that excluded any reference to discrimination. Given the basis of the decision, the act could henceforth be employed affirmatively: to protect and enhance the opportunities for black candidates to be elected to office. The old-fashioned denial of the right to vote that was the target of the Voting Rights Act in 1965 had been effectively eliminated when the act's extraordinary, temporary provisions were due to expire in 1970. The act was extended by Congress, and its coverage enlarged, as the instrument of a new federal policy to promote minority office holding.
An appendage to the original legislative scheme now became its central provision. Section 5 required covered jurisdictions to obtain the consent of either the district court for the District of Columbia or the Department of Justice to any change in a "procedure with respect to voting." Decisions in the wake of Allen that both municipal annexations and reapportionments were "procedures with respect to voting" placed covered jurisdictions under the necessity of periodic negotiations with federal officials over the system of representation and districting required to avoid "denying or abridging the right to vote on account of race." The price of a Justice Department finding or court ruling that the new apportionment would not have the prohibited discriminatory effect was frequently the submission of a districting plan calculated to produce the greatest feasible number of "safe" seats for black candidates.

Carl Gutierrez-Jones,

Department of English

University of California

Santa Barbara, CA 93106

E-mail: carlgj@humanitas.ucsb.edu