I had a chance to attend a Federalist Society event this afternoon on the renewal of certain provisions of the Voting Rights Act. The main questions surround Section 5, which mandates that certain Southern states (and parts of California and New York) pre-clear any voting law changes with the Justice Department (explained well here and in further detail by Quin Hillyer on the blog last week). For the status quo were Daniel Tokaji and Julie Fernandes, both of the ACLU at one time or another, and for not renewing Section 5 were Abigail Thernstrom, of the U.S. Commission on Civil Rights, and Linda Chavez.
The history of the statute was helpful. Sections 4 and 5 were understood to be emergency provisions, which would expire in 1970.
Thernstrom (Chavez mostly dealt with the renewal of Section 203, which requires bilingual ballots in certain areas) placed the burden of proof on the plaintiffs — those who claim that racial discrimination is still pervasive and requires federal intervention in local elections and districting. The plaintiffs, Tokaji and Fernandes, failed to prove this. For Tokaji’s part, he was quite intellectually honest: the question for him was whether “integrated bodies” of representation are an important priority. In other words, racial quotas. He argues that Section 5 is necessary to ensure minority representation.
Fernandes, though, still thinks we live in 1965… or that racism is as prevalent today as it was then. To answer Thernstrom’s argument that “we’re not talking about disenfranchisement,” she offered a lone case from Mississippi. Anecdotes are insufficient proof to justify such presumptions of pervasive Southern racism or heavy-handed federal intervention. Fernandes kept offering the history of racial discrimination as justification without demonstrating its existence today.
Now, as her arguments demonstrated, the liberals’ definition of racism has changed to adjust to its decrease. If blacks are not electing blacks or Democrats, something must be wrong. Thernstrom is right. Balkanization is taking place. Section 5 proponents would fight racial polarization with racial polarization, and fix this balkanization into law. That’s not progress. That is the preservation of 1965.