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.
