In what year was Congress authorized to prohibit migration of persons to the United States?
The answer is 1808, but chances are good that many Americans today would have no idea how to respond to this question, one of many asked to African Americans who sought voting rights during the era of Jim Crow.
The Voting Rights Act outlawed these so-called literacy tests in 1965. Now, the City of Williamsburg and James City County are seeking exemption from the law’s preclearance clause on the basis that there has been no demonstrable discrimination in their districts for more than 10 years.
“Williamsburg has had no recent patterned history of denied access of voting,” James City County attorney Leo Rogers said. “We have minority candidates, minority appointments to boards and other governing bodies and minority voter representation.”
The preclearance clause of the Voting Rights Act requires the U.S. Department of Justice to approve any voting practice changes in the mostly-Southern jurisdictions to which the Act applies. These changes range from polling location changes to voting machine upgrades.
Citing a decade of clean records, officials in Williamsburg and other affected jurisdictions are seeking to “bail out” of the clause because of the extra work it creates when they try to implement even the smallest of changes.
However, some worry that even though no instances of voting discrimination have been reported recently, it is too soon to release Southern jurisdictions from federal scrutiny.
“I don’t think that we have been away from the practice long enough to be exempted,” Clarence Wilson, president of the Williamsburg and James City County National Association for the Advancement of Colored People, said. “The Department of Justice looked into the past and found no specific complaints, but the NAACP does not support moving away from any provisions of the Voting Rights Act of 1965.”
After the passage of the Fifteenth Amendment in 1870, which prohibits denying the right to vote based on race, color, or previous condition of servitude, literacy tests were one of many tactics used by state governments, including Virginia, to disenfranchise African Americans.
Such practices prompted the passage of the Voting Rights Act, which placed uniform restrictions on all states and additional federal oversight on Southern states whose history was colored by voter discrimination.
The law had an immediate impact on minority voting participation; according to the Virginia Historical Society, 23 percent of African Americans in Virginia were registered to vote in 1960. Three years after the passing of the Voting Rights Act, that number had increased to 58 percent.
Williamsburg and James City County were among the jurisdictions those laws singled out. The preclearance clause is the only Voting Rights Act mandate for which Williamsburg is eligible, and from which it seeks exemption.
“To me, this [seeking preclearance exemption] is appropriate given the history of voting in the area and the changing times and circumstances,” Rogers said. “The last preclearance documentation I submitted before the redistricting was whether new handicapped accessible voting machines could be used.”
While Rogers was hesitant to describe the preclearance requirement as a burden, he did point to some financial and political advantages of the exemption.
“This will create cost savings in some localities — they won’t have to provide stacks of documents to review,” Rogers said. “The Justice Department is very good at getting back to us before their 90 day time frame, but we have to plan primaries and elections 90 days in advance in order to get clearance. We were not able to use our handicap accessible voting machines because of this.”
And after a year-long investigation, the Department of Justice agrees with Rogers on Williamsburg’s clean voting record.
“The Justice Department did a review of election processes and practices over the last 10 years and realized there are no issues and never any question of voting discrimination,” Rogers said.
Williamsburg City attorney Christina Shelton confirmed that all of Williamsburg’s preclearance submissions have been approved without problems.
“The City is pleased with the decision of the Department of Justice. There has been an extensive investigation by the Department of Justice into the City’s voting practices, and with this decision the Department affirms that the City meets the criteria for the exemption,” Shelton and Williamsburg Communication Specialist Kate Hoving said in an email.
Wilson, on the other hand, argued that Williamsburg and James City County have not been incident-free long enough.
“There is too much going on around voter suppression for us to be backing away from it [Voting Rights Act of 1965 provisions] right now,” Wilson said.
Rogers and Shelton said that no one voiced opposition to the exemption after it was advertised in newspapers and discussed in informational sessions.
“The decision to apply for the exemption was issued as a public notice and was advertised in the Virginia Gazette for three weeks,” Shelton said in an email. “No inquiries have been received as a result of these notices. Council has discussed this most recently during their discussion regarding changes to the precinct boundaries.”
The Justice Department interviewed the NAACP over the summer as part of its investigation. But in light of new legislation in some states changing state ID mandates for voting and voting time periods, Wilson said he may have answered the department’s questions differently.
“The Department of Justice asked us if we had a specific complaint, which we didn’t,” he said. “But the Voting Rights Act of 1965 itself is under attack for being too costly… and we think just the opposite.”
Williamsburg and the Justice Department jointly submitted a consent decree to the Washington, D.C. District Court in September 2011, and are waiting on the federal court’s approval of the exemption.
“We’ve been more than 30 days, and I anticipate a positive approval from the court in about a week,” Rogers said. “We will be much more like California, New Jersey and Ohio if this comes through.”
If the court approves the exemption, it retains jurisdiction of the case for 10 years. If any future problems were to arise, the City could again be subject to the pre-clearance requirement.
