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Ending the Racial Identity Politics of Today’s Voting Rights Act

In Shelby County v. Holder, decided this June, the United States Supreme Court struck down Section 4 of the 2006 Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act (“2006 VRA”). Section 4 of the VRA provides a coverage formula for nine states as well as counties in six additional states that must seek “preclearance” for any changes to their electoral practices under Section 5 of the VRA from either the federal Department of Justice or a three-judge Federal District Court in Washington DC.

In an opinion by Chief Justice John Roberts, the Court held that the coverage formula in Section 4 was outdated, based as it was “on decades-old data and eradicated practices” going back to the 1960s and early 1970s. Accordingly, it could no longer serve as the basis for subjecting jurisdictions to the onerous provisions of Section 5. Although the Court made no determination as to the constitutionality of Section 5 itself, it effectively rendered that section inoperable because of its holding regarding Section 4; if states were no longer covered by Section 4 they would obviously not have to seek preclearance under Section 5. Chief Justice Roberts indicated that Congress could draft another Section 4 coverage formula based on “current conditions” but the likelihood of that happening is slim since even if there was any interest in Congress in revisiting the coverage formula, it would be a politically explosive issue to deal with, in effect requiring members of Congress to designate certain states or jurisdictions sufficiently racist to require the omnipresent supervision of the federal government. That is not going to happen. Nor should it. Race discrimination may still persist in certain quarters of the U.S. but the VRA was not designed to eliminate discrimination per se but only state sponsored discrimination in voting. That has been addressed.

As a result of Shelby the fifteen states covered in whole or in part by Sections 4 and 5 will be free of the draconian requirement of having to submit every electoral change, from moving a polling station across the street to electoral redistricting plans, to the federal government for approval. They will also be free of the racially divisive politics that has typified so many of the disputes involving preclearance in recent decades, a politics that has resulted in some of the most egregious and sensational race cases to have reached the Supreme Court over the last generation and that continues to this day.

As Chief Justice Roberts indicated, the VRA is a victim of its own success. The original act, passed in 1965, was one of the most principled and successful civil rights initiatives in American history, finally achieving racial equality in voting almost 100 years after passage of the Fifteenth Amendment. Sections 4 and 5 of the 1965 act were set to expire in 1970 because Congress recognized what “a drastic departure from basic principles federalism” these temporary provisions of the act represented. One of the most fundamental rights states enjoy under the Constitution is the right to control their electoral practices. There are of course exceptions to this and in 1965 Congress decided that given the race discrimination in voting that persisted in southern states at the time Sections 4 and 5 were appropriate remedies. In South Carolina v. Katzenbach (1966) the Supreme Court agreed: “exceptional conditions can justify legislative measures not otherwise appropriate,” the Court wrote.

Some 50 years later the Shelby Court asked whether such measures were still appropriate. If they were, they would have to be tailored to the political conditions of twenty-first century America. The inequality between the states that the temporary provisions of the VRA had perpetuated was palpable. “While one State waits months or years and expends funds to implement a validly enacted law,” wrote Roberts, “its neighbor can typically put the same law into effect immediately through the normal legislative process.” What was worse, the very states, predominantly in the South, covered by Section 4 actually today have better black voter registration and turnout records as well as far more black officeholders as a percentage of the black population than non-covered jurisdictions. Yet the pretzel logic of today’s VRA had resulted in the 2006 Section 5 preclearance requirements being made even more restrictive, not less. In addition, whereas the 1965 and 1970 versions of the VRA had set Sections 4 and 5 to expire after five years, when race politics in America was worse, the 2006 VRA extended the temporary provisions of the Act for an unjustifiable additional 25 years—to 2031.

Reading the dissenting opinion in Shelby, written by Justice Ruth Bader Ginsburg, leaves the impression that the four dissenting justices operate in an alternative universe, utterly removed from the reality of present-day American politics and what today’s VRA has become. Paying lip service to the extensive racial progress that has occurred under the act, Ginsburg’s 37 page dissent says nothing about the most public issue that has plagued Section 5 preclearance over the last generation: the divisive racial balkanization administration of the section has caused. Even sober liberals, like editorialist Charles Lane of the Washington Post, were prepared to recognize what the dissent in Shelby refused to. “Here’s the problem,” Lane wrote the week Shelby was released. “Although hugely successful at securing the franchise for individual black voters, the Voting Rights Act has had corrosive unintended consequences, including, ironically, greater political polarization along racial lines.”

Supreme Court cases such as Shaw v. Reno (1993), Miller v. Johnson (1995), Shaw v. Hunt (1996), and Bush v. Vera (1996), representing some of the most sensational race cases of the 1990s, revealed the extent to which states such as North Carolina, Georgia, and Texas had been subjected to a politics of racial extortion by the Justice Department. All three states had imposed on them what the Court in Miller referred to as the DOJ’s “max-black” redistricting plan, a plan that sought to maximize the number of majority-minority districts in order to achieve something approaching proportional racial representation in those states. All of this was done under the auspices of Section 5 of the VRA. As Lane notes, the effect of such bald racial redistricting has been the partisan tribalization of America, the VRA working to divide covered “states into a small number of majority-black districts, which usually pick liberal African American Democrats, and a larger number of overwhelmingly white districts, which choose conservative white Republicans. Moderates get squeezed out.”

Abigail Thernstrom has been more blunt. Today’s VRA is “a Democratic Party Dream.” Once minorities, a loyal Democratic constituency, elect a candidate, that Democrat, being a minority “candidate of choice,” enjoys incumbency protection indefinitely through the VRA’s prohibition against electoral “backsliding” for protected minorities under the act.

In Shelby Justice Ginsburg referred to the problem of backsliding as though it was non-controversial and dealt with addressing acts of invidious discrimination against minorities. To support her argument she cited the Court’s decision in League of United Latin American Citizens v. Perry (2006) where the Court found that Texas’ reconfiguration of a Congressional district designed to reduce the electoral strength of Latino voters bore “the mark of intentional discrimination that could give rise to an equal protection violation.” But the so-called “intentional discrimination” in Perry had nothing to do with race discrimination.

Indeed the federal court that heard the facts in the case made clear to everyone, Republicans and Democrats alike, what they already knew: that the Republican redistricting plan in dispute was not drawn up because of racial animus toward Latinos but purely because of partisan politics. Congressional District 23, the district in dispute, had been drafted to benefit a Republican, Henry Bonilla, himself Hispanic. But Bonilla was the wrong kind of Hispanic for the VRA. The district had to be drawn up to benefit a Democrat, the Latino community’s “candidate of choice.” It was the failure to provide this entitlement under the law that amounted to “intentional discrimination” in Perry, not racial animus.

If anything, Justice Ginsburg’s example from Perry illustrated what she and the other dissenters appeared so anxious to deny: that it was the VRA itself that had allowed purely partisan disputes to get transacted in the inflammatory language of race. It was the VRA that had allowed the Democrats and their allies to play the race card in Perry. If nothing else, Perry illustrated the extent to which today’s VRA has become an instrument of a bald racial identity politics.

20 years ago in Shaw v. Reno the Court described the redistricting plan at issue as a form of “political apartheid.” The politics of the VRA have not changed. Only two days after Shelby the Court overturned a DC District Court ruling that had once again mandated under the pretext of Section 5 yet more racial redistricting than what Texas had provided for in its initial post-2010 Congressional and state redistricting plans. It is fair to ask how long this deconstruction of American republicanism will continue. Shelby went some distance to arresting the partisan tribalism that has become the hallmark of today’s VRA, an act that once did so much to fortify American republicanism but now does so much to undermine it.  As Justice Thomas suggested in his concurring opinion in Shelby, the Court needs to go the distance and put a final end to the illiberal race-politics of today’s VRA.

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