Constitutional Opinions
Gerrymandering on Trial
The Supreme Court will soon decide whether Section 5 of the Voting Rights Act is no longer about white versus black, but about red versus blue.
There are two provisions of the Voting Rights Act -- Section 2 and Section 5 -- that have bedeviled legislators and the courts for decades. But all that changed last week when the Supreme Court -- in a decision that the NAACP called a "direct blow" to heal the "racist wounds of the past" -- cleared up the confusion over Section 2. In a 5-4 ruling authored by Justice Anthony Kennedy, the high court narrowed the extent to which the law mandated the creation of minority-majority voting districts.
The confusion over Section 5 will end soon, as well.
In April, the Supreme Court will hear arguments in Northwest Austin Municipal Utility District Number One v. Holder, a case that Linda Greenhouse writing in the New York Times believes will "set the direction of the debate over race and politics for years to come." That opinion is shared by election law Prof. Rick Hasen of Loyola University Law School, who notes, "This could be the biggest election-law case on the court's docket since Bush v. Gore."
The lawsuit will test the constitutionality of Section 5 of the recently reauthorized Voting Rights Act (2006). Section 5 forbids all of nine states and their political subdivisions in Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia and parts of seven others such as North Carolina, New York and Florida from enacting any change to voting practices without the consent of either the U.S. attorney general or the District Court for the District of Columbia. Any changes, such as moving a polling location, extending or shortening early voting hours, switching from electing judges to appointing them, and the like, must be "preapproved" (or, in the language of the statute, "precleared") by Washington.
This preclearance provision also applies to redistricting election districts, which, politically, is the 800-pound gorilla in the courtroom. How election district lines are drawn for school boards, county commissions, city councils, state legislatures and the U.S. Congress will be affected by the outcome of this case, which is why groups such as the Mexican American Legal Defense and Education Fund, ACLU, and People for the American Way, among others, have intervened. They know that if Section 5 is struck down, racial gerrymandering, and thus, ultra-safe majority-minority districts, may be reduced even more in some parts of the nation.
When the Voting Rights Act was being debated in 1965, Congress relied on a substantial body of data to prove that blacks in the Deep South were systematically disenfranchised by a hostile government apparatus. In response, the Voting Rights Act was tailored to address those specific findings by removing the key barriers to black voter participation -- like literacy tests, poll taxes and official harassment. Section 5 was necessarily -- but temporarily -- put in place to prevent these targeted jurisdictions from using never-ending gamesmanship to circumvent the new law. This "temporary" preapproval provision -- it was set to expire in 1970 but is now in its 44th year -- is the most federally intrusive law ever passed by Congress. It cuts to ribbons our nation's bedrock principles of federalism. And those federalism principles are not some quaint 18th-century anachronisms -- more than any other feature of our system of government they have ensured our liberty by diffusing power between the state and federal government.
The plaintiff in Northwest Austin v. Holder is a small subdivision in Travis County, Texas, which claims, not inaccurately, that "The America that elected Barack Obama as its first African-American president is far different than when Section 5 was first enacted in 1965." The jurisdiction sued in 2006, requesting to be "bailed-out" from these requirements, which it believes it is entitled to do under the law; and failing to achieve that, argues that the provision is unconstitutional.
That it's no longer 1965 in America is beyond debate except for the most racially myopic advocacy groups. Congress, knowing it could no longer identify either oppressor or oppressed in any of the Section 5 states, relied mostly on feverish anecdotes to justify the act's renewal until 2031. As a warning shot to the Supreme Court to keep their hands off, Congress titled the newly reauthorized bill the "Fannie Lou Hammer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006." Who, after all, would dare strike down these civil rights heroines?
So why did Republicans in Congress and President Bush -- whose home state of Texas was labeled as one of the more egregious voting rights violators during the reauthorization hearings -- enthusiastically sign it into law? A 2006 article in New York magazine notes that Democrats, including then-Congressman Rahm Emanuel, as well as Republicans, are subject to a “weird, self-interested math [that] comes into play" with the Voting Rights Act, according to a Democratic congressman.
Black Democrats don't want to appear retrograde; whites don't have the courage to stand up and try to fix it without blacks standing alongside them; and Republicans like the outcome that they're getting, which enables them to have perpetually lily-white suburban southern districts…. So any effort to "fix" the thing is a nonstarter.
In order to comply with Section 5, redistricting bodies are compelled to create bug-splat-like minority-majority voting districts that split apart multiracial, geographic communities of interest. This racial gerrymandering has the effect of diminishing competitive elections and, inevitably, makes a political candidate's race the primary determinant of electoral success. Moreover, by insulating white officeholders from minority voters and issues specific to minority communities and, conversely, minority elected officials from white voters, the nation defers the day when racial considerations are no longer a driver of electoral politics -- whether for city councils all the way to the halls of Congress.
What began as a statute to ensure the voting rights of minorities in 1965 has devolved into a crude gerrymandering tool to further the interests of political parties and incumbent politicians. Today, Section 5 is no longer about addressing issues of white versus black, but rather, red versus blue.
Sensing likely trouble from the high court, the defenders of Section 5 have begun to debase the extraordinary racial progress made in the South and elsewhere, claiming that because then-candidate Obama's support from white voters was lower than John Kerry's in 2004, nothing has really changed "down there." While it is true that white voters in Alabama, Mississippi, and Louisiana gave Obama fewer votes than Kerry, that was not the case in North Carolina, South Carolina, Virginia, Georgia, Arizona, and Texas. More relevant to the discussion of a changed electorate, however, is the success of black candidates such as Sen. Eric Powell, who was recently elected to the Mississippi State Senate from a district that is over 92 percent white; and Alabama State Representative James Fields who represents a 96 percent white district. Of course, the fact that blacks and Hispanics throughout the South have been elected to statewide office with a majority of white support makes no difference to the racial advocacy groups. For them, the sky is always falling.
Striking down Section 5 of the Voting Rights Act is not a course of action the Supreme Court will follow lightly. After all, any judicial narrowing of the breadth of the provision will be portrayed by many as a rollback in minority voting rights. But in truth it will be the opposite: if racial gerrymandering is curtailed, it will mean that black and Hispanic representatives will have to reach out to white voters in order to win office, just as white representatives now must reach out to minorities. The great lesson of the 2008 election is that voters will reach for the right candidates -- regardless of their race.
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Bill Hussein O'Stalin| 3.16.09 @ 8:09AM
It sounds like the Democrats want to divide us a nation and want us to fail.
Marc Jeric| 3.16.09 @ 11:53AM
I remember the voting district in Georgia combining black-majority areas in 3 cities connected by a road 150 miles long; it gave us that appalling Congresswoman McKinney who, among other outrageous things, claimed that Bush was the terrorist who killed 3,000 Americans on 9/11.
WA4RRN| 12.19.09 @ 1:55PM
MARC...I'm trying to find a map of that gerrymander...as I recall it involved a long narrow stretch aroung an Interstate...
Raymundo Aleman| 3.16.09 @ 12:13PM
The VRA should have been allowed to expire long ago. LBJ kept Texas out of the original VRA but in 1975 with LBJ dead, the Democrats were determined to apply the law to Texas. Since all the egregious laws were long since gone in Texas, the fact that Texas had a low voting perecentage was used to justify applying the VRA to Texas. At that time, most of the Texas elected officials were bitterly opposed to the VRA. The late congressman Henry B. Gonzalez of San Antonio called for repeal of the law. But it passed anyway
and became popular so it was extended for 25 years in 1982 during the Reagan years. It was then extended again in 2006 (It was to expire in 2007 but the clueless Bush II couldn't wait and extended again). This law resulted in 2006 in Texas Congressman Ciro Rodriguez becoming the first person to be creamed twice in Congressional elections and still winning election when the VRA gave him three chances. The VRA is an insult to free people everywhere.
Raymundo Aleman
San Antonio, Texas
Rockman44| 3.16.09 @ 1:22PM
As one who holds a MS in Geography it is my belief that Section 5 presents an obstacle for government for and by the people. By allowing gerrymandering, thus the creations of safe districts, any given group of people in a geographical area are not fairly represented.
If States were divided into districts based upon geographical groupings, for example when creating districts if the structuring were such that most of the people living in county X and Y, two counties right next to each other, were a district, it is more probable that this physical versus political grouping of people would result in districts where the people share many more common concerns than that as it exists presently. Groupings of people by physical versus political boundaries would be a major step toward returning government to the will of the people. Just think, if physical groupings were used in conjunction with term limits maybe we would actually get back to government for and by the people versus government for the rich, powerful or lobby group.
Heil| 3.16.09 @ 4:35PM
Bill Hussein O'Stalin| 3.16.09 @ 8:09AM
"It sounds like the Democrats want to divide us a nation and want us to fail."
Out Of Tune Quartet...
The Governors of South Carolina, Mississippi, Louisiana and Texas have decided to reject some of the federal stimulus funds, particularly those geared towards increasing unemployment compensation and the numbers of people who are eligible. In Arizona, the Republican Governor and the Republican-controlled legislature have maintained their sanity and will push for all the federal stimulus money available while they deal with a systemically broken state government and tax system.
While most Democrats and many independents hold different opinions concerning what is rational and compassionate economic policy, there probably is a need to maintain some national opposition to the President and the Democratic Congress since the remaining Republicans in Congress are so ineffective and clueless. These 4 states can be testing grounds for an alternative response to this severe recession. They need the flexibility to “do their own thing.” These politicians may pay at the 2010 elections and beyond, but it’s their choice.
At least they provide endless fodder for pundits and comedians.
The unemployed in these 4 Southern states are the ones who will be hurt the most over the next 2 years. Unfortunately there are many people looking for work but are trapped by a house they cannot sell, or they simply do not have enough money to actually move elsewhere. There may be some comfort for these trapped people in knowing that so many others are losing their jobs across the nation and in every sector of the economy, and will likely do so for the next 18 months. However, staying put in a dying region of the country is not the best solution for unemployed individuals and their families.
The core of the Republican Party is now found in and around these 4 former Confederate states – geographically, culturally and politically. This country’s intense partisanship didn’t end with the election of President Obama – it has merely intensified. The minority is now a very angry and vocal group, sometimes screaming absolute nonsense and making completely untrue claims. They probably need to throw this tantrum and exorcise their demons. How long this process will take is anyone’s guess.
After the debacle of the 1932 election in the middle of the depression, it took 20 years for the Republican Party to elect a President in 1952. It is very debatable if the rabid extreme that controls the party would find the moderate President Eisenhower satisfactory today. He had the vision to warn us in 1960 of the dangers of the “Military Industrial Complex.” The victorious commanding General of AlliedForces in Europe during World War II might not recognize the Republican Party of today.
Demographically, the American electorate probably moved past the party of conservative, rich, old white guys and their shrinking minions in 2006. Even smart moderate Republicans leaders in Utah, Florida, and elsewhere are shifting economically, politically and culturally away from the party’s increasingly exclusionary, reactionary, and lunatic base. When your party’s entire political philosophy is dictated by conservative radio and television entertainers that never have to campaign for office, then proposing practical and moderate economic and political positions is not a high priority.
Does the American electorate have the patience and wisdom to know that we are in such a huge mess that it will take years to turn things around? Will it suddenly throw a temper-tantrum because immediate results are not produced by November 2010? Will there be any viable alternatives offered to the current democratic policies in 2010? What unusual events will transpire during the next 20 months that will again significantly alter the economic, political, cultural, environmental, and international situation?
After the Nazis took power in Germany during the Great Depression of the 1930’s, they started to repeat many falsehoods frequently and long enough until enough people ended up believing them. Then that country and millions across Europe had to pay the ultimate price for such rabid and misdirected hatred.
Today in this country, public opinion is made in part by our 24/7 media circus. It is no help that some of the prominent financial swindlers on Wall Street during this recession have been Jews. The Nazis falsely blamed Jews for the depression almost 80 years ago. On the political right in the U.S., there are some closet bigots whose long-time dislike of Blacks, Hispanics, Asians, Gays, Immigrants, Liberals, Jews and a whole litany of other new “traitors” has been simmering just below the surface.
My biggest fears center on the following: Often people who are out of power and who have lost control over their thoughts and emotions are prone to do crazy and dangerous things. There are some on the extreme right who have amassed arsenals of private guns — and if the flames are fanned one of them could start using them against fellow citizens and elected officials with whom he/she disagrees. On top of that, unemployed people often have way too much time on their hands and they might start following their darkest impulses. Finally, those who think they have little to lose and no control over anything in their lives may do anything rash in a fit of rage.
I hope the entertainers and commentators in our 24/7 media circus pursue civility and moderation, and do not foolishly add fuel to some of the insane fires smoldering in this country. Too often the voices who espouse the most outlandish and extreme positions get the most media and public attention. I understand there is a First Amendment to be respected, but falsely yelling “fire” in a crowded theater is not protected speech.
Everyone needs to “vent” their frustrations and anger from time to time. We just have to know when to stop the poisonous vitriol in our public discourse and thereby all work to prevent senseless and misdirected violence from erupting against our fellow human beings.
Marc Pascall / from The Conservative Voice
Bill Hussein O'Stalin| 3.16.09 @ 5:20PM
The one important fact left out of Heil's post is that if those governors accept those funds they get a load of money now, but they have to continue to fund those programs at higher rates later, establishing permanent welfare states.
IMKessel| 3.16.09 @ 8:44PM
"As a warning shot to the Supreme Court to keep their hands off, Congress titled the newly reauthorized bill the "Fannie Lou Hammer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006." The correct spelling of the woman's name is Hamer.
Hienrich Grass| 3.17.09 @ 2:32AM
"The Supreme Court will soon decide whether Section 5 of the Voting Rights Act is no longer about white versus black, but about red versus blue. "
Wow. You are finally admitting it. Didnt think youd ever crawl out of that closet.
Trackback| 6.28.09 @ 12:58PM
lemon law, on lemon law, links to this page. Here’s an excerpt: