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.
Edward Blum is a visiting fellow at AEI.