Section 5 of the Voting Rights Act was an ingenious solution in 1965. Its extension in 2006 was mere political expediency. Now the Supreme Court must decide whether that extension was also constitutional.
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These changes do not mean that racial discrimination no longer exists in covered jurisdictions, or even that it is “no worse” there than elsewhere. It does mean that permanent laws of national application are completely sufficient to address such discrimination now and in the future. The role Section 5 was designed to play can be safely left to minorities themselves, who are politically sophisticated adults, no longer in need of a protective federal parent.
The eagerness with which Congress passed the extension can be attributed partially to the Voting Rights Act’s deserved iconic status. Laudably, because of Section 5, particularly as stretched by DOJ, minorities were incorporated into the political process more rapidly than otherwise would have occurred. Supporters of the extension argued that without Section 5, these gains would be lost. Seemingly, Congress gave little thought to the logic of this contention. Moreover, had it given serious thought to how Section 5 actually works, it would have discovered that this device, adopted as a shield against discrimination, has morphed into a sword by which DOJ has imposed its limited notions of representation on covered jurisdictions.
Section 5’s protection is “jurisdiction specific,” not “victim-specific.” Section 5 treats certain minorities as special wards of the federal government — political children — based not on their present or even past circumstances, but on their residence. An upper-class, Ivy League educated African American born in New Hampshire, who as an adult moves to an affluent Virginia suburb, is entitled to have DOJ protect him against the mere possibility his vote might be diluted. But the sharecropper grandson of a slave who moved from rural Mississippi to Illinois in the 1960s has to fend for himself if he becomes the victim of actual discrimination.
Section 5 treats the acts of a legislative body in a covered jurisdiction with suspicion, regardless of the body’s racial make-up. When a racially diverse city council in South Carolina, elected with full minority participation, redraws its election districts in 2011, the new districts will be “suspect” until the city convinces DOJ otherwise. Election districts redrawn for any reason by an all-white legislative body in Michigan are deemed valid until a challenger proves otherwise in court.
Section 5 imposes a separate body of law on covered jurisdictions. It prevents a covered jurisdiction from implementing certain voting changes, even if it proves the changes satisfy anti-voting discrimination laws that apply nationwide. A Section 5 city that currently rotates the mayor’s position among council members elected from single member districts very likely could not make the mayor a separate position, elected by all the city’s voters, when the same change by a non-Section 5 city likely would survive a racial discrimination challenge. A Section 5 city may be forced to change its electoral system to one guaranteeing proportional representation or forgo an economically necessary annexation. An annexation made by a similarly situated non-covered city almost certainly could not be challenged successfully as discriminatory.
Had Section 5 been limited to preventing certain jurisdictions from adopting potentially disfranchising devices — its initial purpose—its continued existence would be innocuous, its constitutionality notwithstanding. It was an early Supreme Court holding that Section 5 applied to constitutionally mandated changes in voting districts that gave DOJ the power to reorder the political process. Unlike a new registration requirement, which could be abandoned if DOJ objected, election districts must be redrawn after every census. Thus, when DOJ objected to redrawn districts, covered jurisdictions had to produce new ones until DOJ was satisfied.
Because DOJ could prevent implementation of redistricting plans, it was able to pressure covered jurisdictions to create majority-minority districts at every level of government and at all costs, which eventually came to include demands that they abandon, if necessary, traditional districting standards. These nationally recognized standards were designed to produce sensible districts in which voters, political organizers, and candidates could engage effectively in the political process in our representational system, which assigns seats to defined geographic areas.
Some of the more absurd districts created in the 1990s in response to DOJ demands — districts that ran down interstates and resembled bug splats — were successfully challenged as racial gerrymanders. A slim majority of the Supreme Court declared that Section 5 did not mandate such districts, but its ruling came too late to prevent the forced adoption of tortured districts by virtually all Section 5 jurisdictions. Moreover, the Court left many loopholes for compliant legislators to cooperate with DOJ, so much so that significant remnants of the actual districts found to be unconstitutional in the 1990s are still evident in districting plans today.
Districts grossly geographically distorted for any reason seriously undermine the political process for all participants. In non-Section 5 jurisdictions, traditional districting standards keep the natural tendencies of legislators to “gerrymander” for personal and partisan advantage in check. Seldom is a legislator in these states able to gerrymander his district sufficiently to long thwart organized efforts to defeat him. The association of Section 5 with more extreme, unconscionable, and disabling, geographic distortions of the electoral system is easily seen by a visual comparison of election district maps for Section 5 jurisdictions with those not covered. Compare, for example, the congressional districts Georgia adopted in 2002, several of which cannot be described in recognizable geographic terms, with those of, say, Ohio. Compare any non-Section 5 state’s districting plans with Mississippi’s current state house and senate districts, which would be in the running for the two most difficult jigsaw puzzles of the century.
If Section 5 is unnecessary and harmful, why did most senators and representatives of the covered jurisdictions vote for it? Were they and their elected colleagues at the state and local level looking for an opportunity to “reassert Jim Crow,” but soul-searchingly voted for self-restraint? Did they believe that laws sufficient to protect minorities in Michigan were not adequate for their states, or would not be enforced by their federal judges? Did they believe their state’s white voters required special supervision, and their African-Americans voters were so politically helpless as to need a special guardian?
Ironically, perhaps it is the ability to distort districts, initially coerced by DOJ, that provides one reason for these representatives’ lack of opposition to the extension. Except for U.S. senators, most legislators in office in 2006 at all levels, were elected from single member districts, many of them geographically distorted. When initially forced to ignore districting standards to create minority district, affected legislators added distortions to protect their electoral prospects. DOJ’s sole mandate was to protect minorities, which it equated with maximizing the number of minority districts. It had little interest in how the districts were obtained or whether legislators engaged in further self-protective gerrymandering.
Those subsequently elected in the distorted districts naturally thought they were perfect. Officials hooked on the personal benefits of no districting standards, for which Section 5 provided cover, could not be counted on to oppose extension. In 2006, Republicans believed they benefited from the overwhelmingly white districts left when minority voters were gerrymandered into districts “of their own.” Educated by the last election, they may now realize that the danger of districts grossly distorted for partisan advantage is to tie their personal fate to the temporal popularity of their party. When election units lose their independent geographic identity (identities tied to counties, municipalities, neighborhoods, and regions, for example), much of the voter focus on individual representatives and candidates also is lost. In party primaries, candidates unable to identify issues of common interest to their constituents fall back on appeals to the parties’ extremes. General election voters then are likely to vote their “default” partisan position for all but the most visible of offices.
White Democrats understood the cost to them of creating majority minority districts by any means possible, but to not support extension posed a greater risk. Senators had little skin in the districting game, but might be tarred by opposing extension.
The Court should not view the absence of meaningful opposition to extending Section 5 from covered jurisdiction as self-substantiating evidence of a continuing need for its extraordinary scheme. Political expediency, perceived self-interest, fear of being labeled anti-minorities, ignorance about Section 5’s actual operation, and resignation to its inevitable passage are better explanations for the extension’s easy passage than concluding that Congress carefully considered a well-supported record of abuse not susceptible to ordinary legal remedies.
In 1965, those who supported the unprecedented measures of the Voting Right Act displayed ingenuity and substantial courage. In 2006, no dire problem required ingenuity. Nor was courage necessary to jump on the extension steamroller. Few voters would notice if Congress extended Section 5, but the press would raise cane if it did not. Our politicians understood that the case for extension could be made in misleading sound bites, but the case against it required careful articulation to an audience actually interested in listening. When the Court considers the extension’s constitutionality, hopefully the justices will weigh the consequences of leaving the political process of a substantial segment of the nation’s electorate at the mercy of federal bureaucrats (and possibly co-opted legislators).
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