There was something of a disconnect between the April 29 oral arguments at the Supreme Court about the constitutionality of the Voting Rights Act’s celebrated Section 5 and that provision’s most important contemporary effect on the body politic.
The arguments, and the media coverage, focused on whether the South — including the tiny Texas municipal utility district that brought the case — and other areas covered by Section 5 remain more racist than the rest of the country. That’s the premise on which Congress, in 2006, extended for another 25 years the extraordinary federal oversight that in the late 1960s broke the back of persistent white efforts to disenfranchise black voters.
But in recent years Section 5’s most important impact has been less benign. It has been used to pressure covered states and localities to adopt extreme racial gerrymanders to create more safe districts for black and Hispanic politicians.
Section 5 could have a large impact on the redrawing of thousands of election districts after next year’s census. It virtually requires nine mostly Southern states and portions of five others (called "covered jurisdictions") to submit their redistricting plans — as well as all other changes in voting rules, right down to moving a polling place across the street — for "prescreening" by the Justice Department’s Civil Rights Division.
That division, long staffed mainly by liberal Democrats, has a pattern of using its vast Section 5 powers over mostly conservative states to push for racial gerrymanders.
(Covered jurisdictions also have the option of seeking federal court approval, but that process is so cumbersome that it has rarely been used.)
Five justices have found some racial gerrymanders to be both unconstitutional and bad for the country. But Congress essentially thumbed its nose at them when it extended Section 5 by adding amendments designed to increase the pressure for racial gerrymanders.
It appeared during the oral argument that all five of these justices — centrist Anthony Kennedy and the four conservatives — were reaching for ways to strike down the 2006 version of Section 5, even though the case at hand did not involve gerrymandering.
How did it come to this with the Voting Rights Act, which, as Kennedy has said, was designed in 1965 to "hasten the waning of racism in American politics" rather than to "entrench racial differences"? Here is some history.
The side effects of racial gerrymanders have been pernicious, segregating voters into "majority-minority" districts and increasing ideological polarization.
Congress saw Section 5 in 1965 as a necessary but drastic remedy for what the Court later called the "unremitting and ingenious defiance" that had thwarted earlier efforts to end 80 years of flagrant, mass disenfranchisement of blacks throughout most of the South. It was the deepest federal intrusion into state and local government affairs since Reconstruction. For this reason, Section 5 was initially set to expire in 1970. But Congress has repeatedly extended it, and also broadened it to protect Hispanics and other "language minorities."
With Section 5 as its centerpiece, the Voting Rights Act is widely seen as the most successful civil-rights law in U.S. history. In the decade after 1965, Justice Department vetoes of any and …
There was something of a disconnect between the April 29 oral arguments at the Supreme Court about the constitutionality of the Voting Rights Act’s celebrated Section 5 and that provision’s most important contemporary effect on the body politic.
The arguments, and the media coverage, focused on whether the South — including the tiny Texas municipal utility district that brought the case — and other areas covered by Section 5 remain more racist than the rest of the country. That’s the premise on which Congress, in 2006, extended for another 25 years the extraordinary federal oversight that in the late 1960s broke the back of persistent white efforts to disenfranchise black voters.
But in recent years Section 5’s most important impact has been less benign. It has been used to pressure covered states and localities to adopt extreme racial gerrymanders to create more safe districts for black and Hispanic politicians.
Section 5 could have a large impact on the redrawing of thousands of election districts after next year’s census. It virtually requires nine mostly Southern states and portions of five others (called "covered jurisdictions") to submit their redistricting plans — as well as all other changes in voting rules, right down to moving a polling place across the street — for "prescreening" by the Justice Department’s Civil Rights Division.
That division, long staffed mainly by liberal Democrats, has a pattern of using its vast Section 5 powers over mostly conservative states to push for racial gerrymanders.
(Covered jurisdictions also have the option of seeking federal court approval, but that process is so cumbersome that it has rarely been used.)
Five justices have found some racial gerrymanders to be both unconstitutional and bad for the country. But Congress essentially thumbed its nose at them when it extended Section 5 by adding amendments designed to increase the pressure for racial gerrymanders.
It appeared during the oral argument that all five of these justices — centrist Anthony Kennedy and the four conservatives — were reaching for ways to strike down the 2006 version of Section 5, even though the case at hand did not involve gerrymandering.
How did it come to this with the Voting Rights Act, which, as Kennedy has said, was designed in 1965 to "hasten the waning of racism in American politics" rather than to "entrench racial differences"? Here is some history.
The side effects of racial gerrymanders have been pernicious, segregating voters into "majority-minority" districts and increasing ideological polarization.
Congress saw Section 5 in 1965 as a necessary but drastic remedy for what the Court later called the "unremitting and ingenious defiance" that had thwarted earlier efforts to end 80 years of flagrant, mass disenfranchisement of blacks throughout most of the South. It was the deepest federal intrusion into state and local government affairs since Reconstruction. For this reason, Section 5 was initially set to expire in 1970. But Congress has repeatedly extended it, and also broadened it to protect Hispanics and other "language minorities."
With Section 5 as its centerpiece, the Voting Rights Act is widely seen as the most successful civil-rights law in U.S. history. In the decade after 1965, Justice Department vetoes of any and all new rules that might impede black voting helped send the percentage of blacks who registered and voted soaring in covered jurisdictions.
But the number of minority candidates winning elections rose much more slowly, due to white racial bloc voting. To break this pattern, Congress amended the Voting Rights Act in 1982 to require the creation of majority-black and majority-Hispanic districts in some circumstances.
This change was healthy to a point. But it was carried to extremes. The Civil Rights Division and its allies, including minority politicians, interpreted the 1982 amendments as requiring states and localities to discard traditional districting principles such as compactness and contiguity and draw as many safe, majority-black and majority-Hispanic districts as possible, no matter how bizarre their shape.
The side effects of such racial gerrymanders have been pernicious. They not only segregate voters into "majority-minority" districts but also make the surrounding districts into white Republican enclaves. This outcome increases ideological polarization. Liberal black Democrats and conservative white Republicans win primaries and general elections at the expense of the moderate white (and black) Democrats who do best in more-integrated districts.
Racial gerrymanders also fan identity politics by encouraging minorities to practice the same kind of racial bloc voting that is seen as racist when done by whites. They can weaken the collective clout of minority voters by packing minorities into so few districts that most legislators don’t need their support. So what’s good for black and Hispanic politicians isn’t always good for black and Hispanic voters.
Such concerns provoked the justices to push back in a succession of 5-4 decisions against what Kennedy has called "the Justice Department’s implicit command that states engage in presumptively unconstitutional race-based districting." It was this line of decisions that Congress sought to neuter in the 2006 amendments to Section 5.
The pending attack on Section 5 was brought by a tiny municipal utility district in North Austin. The district has no history of discrimination, and no election districts to be gerrymandered, but it is covered by Section 5 because it is in Texas. Contending that Section 5 brands it as racist by requiring federal permission for any change in its voting rules, the district seeks either an exemption — for which it appears to be ineligible — or a ruling that Section 5 is unconstitutional.
A special three-judge federal court in Washington upheld the 2006 version of Section 5 in a compelling opinion by Judge David Tatel. He detailed an impressive body of evidence, compiled by congressional committees, that old-fashioned voting discrimination persists in at least some of the thousands of localities covered by Section 5; that there might well be more such discrimination but for Section 5; and that white bloc voting persists in some areas.
Tatel also stressed that the Supreme Court has long deferred to Congress’s determinations of what measures are necessary to enforce the constitutional rights of racial minorities — especially their rights to vote — and has repeatedly upheld earlier versions of Section 5.
Other defenders of the 2006 version of Section 5 stress that it passed the Senate by 98-0 and the House by 390-33, that few covered jurisdictions have joined in challenging it, and that some localities like being covered by Section 5.
Section 5 is far too crude a blunderbuss for today’s racial challenges.
But Section 5’s popularity with pols may be rooted as much in politics as in principle. Racial gerrymandering helps liberal black Democrats and conservative white Republicans in covered jurisdictions win elections. Although race-based redistricting hurts moderates, they dare not say anything that could be spun by critics as showing hostility to the iconic civil-rights law. Meanwhile, most voters — who might prefer a more centrist politics — have no idea about how Section 5 promotes polarization.
This dynamic helps explain why Congress, which could have revised Section 5 to reflect the vast progress made by all covered states since 1965 in breaking down racial barriers, chose instead to leave it largely untouched while making it even more intrusive.
For example, Congress ensured that the theoretical right of covered jurisdictions to "bail out" from Section 5 coverage, if their racial records in recent years were clean, would remain unworkable in practice. Congress also kept the same "covered jurisdictions" that it had designated decades ago under the federal thumb — while adding no new ones — despite data suggesting that many covered jurisdictions have done a better job of getting minorities to the polls than many others that have never been covered.
Thus did abdication of serious policy-making emerge from political self-interest. The result is a Section 5 that is far too crude a blunderbuss for today’s racial challenges and that operates far too much like a racial gerrymandering machine.
But this is not necessarily to say that the Supreme Court should find Section 5 unconstitutional — especially in a case that does not involve racial gerrymandering. Judge Tatel mustered 136 pages of cogent reasons, including the sheer complexity of the factual record as to how much voting discrimination persists, why the justices should defer to Congress, no matter how shabby a job Congress did.
None of the current nine justices, however, has shown much deference to congressional enactments that he or she dislikes. And at the April 29 argument, Kennedy and others suggested pointedly that the arbitrariness of the congressional distinction between covered and non-covered jurisdictions — which made much more sense in 1965 than now — might be reason enough to strike Section 5 down.
I’m not so sure about that. Even with a black president in the White House, the Section 5 preclearance process may still serve a useful role in protecting minority voters in some parts of the country against whatever discrimination remains, as well as whatever backsliding might follow if Section 5 were struck down.
Is there a way to split this baby? One might be to strike down Section 5’s most arbitrary provisions while leaving most of it in force, at least long enough to give Congress a chance to clean it up.
If the justices could thereby goad Congress into coming seriously to grips with Section 5’s imperfections, their decision would be more than a precedent. It would be a miracle.
This article appeared in the Saturday, May 2, 2009 edition of National Journal.