Times change. And many laws that were once essential to help us progress eventually become outdated, counterproductive, and in need of revision, if not repeal.
But by then such laws have often become sacred cows, perpetuated long past their glory days by self-serving politicians, interest-group lobbies, and media nostalgia or bias. Their reach is very hard to restrain unless an unusual opportunity presents itself.
So it is with Section 5 of the iconic Voting Rights Act of 1965, which was initially set to expire in 1970. It requires eight states in the Deep South, plus Alaska and parts of seven other states, to obtain “preclearance” from the U.S. Justice Department (or a slow-moving special court) before making even the minutest change in their voting rules.
Section 5 played a critical role in ending the disenfranchisement of Southern blacks and breaking the back of American apartheid. But we live in a different America. The very racial progress that Section 5 helped accomplish has arguably made it unnecessary and certainly calls for reducing its intrusion on state powers.
Indeed, many or most of the states and localities covered by Section 5 have become as protective of voting rights as the rest of the country. And Section 2 of the act provides ample authority to deal with residual voting rights violations — which no doubt still occur — through the ordinary judicial process.
Efforts to reform Section 5 have nonetheless been beaten back by left-wing Democrats, right-wing Republicans (some of whom benefit from the racial gerrymandering it imposes, while others would prefer its outright elimination on ideological grounds), the civil rights lobby, and its allies in the news media and the Justice Department’s Civil Rights Division.
The Voting Rights Act of 1965 “was one of the great moments in the history of American democracy” and “the death knell of the Jim Crow South.” Over the years, however, it has been twisted into an engine of racial rigging and polarization. This has been accomplished by misguided judges, unwise and self-serving congressional Republicans (as well as Democrats), and liberal ideologues in civil rights groups and the Civil Rights Division of the Department of Justice. Indeed, those forces have transformed the Voting Rights Act into “a brake on true racial progress today.”
That is the essence of the story told by Abigail Thernstom in her meticulously researched and forcefully argued book. President Obama’s success in winning white votes has completed the proof that the white racism which the sixty-four-year-old law was designed to combat has become a marginal factor in American politics. And the Voting Rights Act, which has come to be little more than a racial gerrymandering machine, has become “a barrier to greater integration” of our politics. Yes, we still have glaring racial inequalities rooted in our history of slavery and racism. About this there can be no doubt. But “the caste system that originally justified taking race into account in structuring elections is gone,” Thernstrom concludes, and “further progress demands that we now cease to take race into account.”
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.)
John Roberts "was on the wrong side of history" as a young lawyer in the Reagan and first Bush administrations. He was "hostile toward civil rights." His view of the Voting Rights Act was "no less harmful to our nation’s principles of inclusive democracy" than "the violence and intimidation of 1965."
The three federal appeals court judges who gave California Gov. Gray Davis a new lease on life on September 15 delighted many a liberal law professor by purporting to follow Bush v. Gore, the Supreme Court precedent that Democrats most love to hate.
It started right after the election. The indispensable Jesse Jackson muttered about "a pattern of irregularities and intimidation" in Florida in which "African-American voters were substantially targeted." By December 8, he was claiming that the Bush brothers had "stolen" the election by "schemes of disenfranchisement." Other "leaders" were not far behind. "Police checkpoints were set up in and around polling places to intimidate black men," imagined NAACP Chairman Kweisi Mfume, adding, "it was all part of some grand conspiracy" to keep blacks from the polls. "There was a systematic disenfranchisement of people of color and poor people," hallucinated Donna Brazile, Al Gore’s campaign manager. Gov. Jeb Bush of Florida and others put up police roadblocks to stop blacks from voting and "tampered with the results in Florida," oozed Democratic National Committee Chairman (and Clinton moneyman) Terry McAuliffe.
The ridiculous-looking, 50-percent black congressional district in Dallas County, Texas, depicted on this page, was drawn in 1991 for the explicit purpose of creating a safe black seat (for one Eddie Bernice Johnson) in Congress.
Its geometry makes it one of the most irregularly shaped congressional districts in the nation, as was pointed out on Dec. 5, when the Supreme Court heard oral arguments in this term’s two big racial-gerrymandering cases.
(They are Bush v. Vera, in which a lower court struck down the Dallas district, along with one majority-black and one majority-Hispanic district in the Houston area, and Shaw v. Hunt, in which a lower court upheld two majority-black districts in North Carolina.)
Justice Sandra Day O’Connor-the swing voter who will almost surely determine the outcome of both cases-sounded like she was itching to strike down most or all of these five districts. But in the case of the Dallas district pictured here (District 30), that would be a mistake.
I don’t like uncouthly shaped, race-based districts either. Nor do I like it when (as here) the weirdness of the shape is largely attributable to the self-serving efforts of politicians to draw safe districts for themselves. But the Dallas district should nonetheless stand.
This is not to say that the Court should give states carte blanche to engage in unrestrained racial gerrymandering to increase minority representation. Nor is it to fault the Court’s June 29,1995, decision (in Miller v. Johnson) striking down as a racial gerrymander a majority-black district that had been improperly forced on the state of Georgia by the Justice Department, in the department’s headlong pursuit of proportional representation at all costs.
"Scarcely any political question arises in the United States which is not resolved, sooner or later, into a judicial question," Alexis de Tocqueville wrote in 1835.
And these days, it sometimes seems, scarcely any judicial question arises that is not resolved, sooner later, into a racial question.
So it is that the draconian federal penalties for nonviolent drug offenses have finally attracted a bit of public notice-not because they are called "savagely severe" by people like Richard Posner, the Reagan-appointed judge of the U.S. Court of Appeals for the 7th Circuit, but because they are called racist by people like Jesse Jackson.
Some of these penalties are racist. But that’s not the heart of the problem. The heart of it is that Congress has adopted-and President Clinton and his equally gutless attorney general, Janet Reno, are perpetuating-a regime of grotesquely excessive mandatory minimum prison terms for drug defendants of all races.
This regime has wrecked the lives of thousands of small-time, nonviolent drug offenders. It has done little to dent the drug problem; makes no sense as policy; and is being maintained by politicians for the most cynical of political reasons.
The especially egregious unfairness of one aspect of this sentencing regime-its requirement that each gram of crack cocaine be treated as though it were 100 grams of powder cocaine-was obliquely acknowledged both by Clinton, in his Oct. 30 announcement of his deplorable decision to reject the U.S. Sentencing Commission’s proposal to eliminate the 100-1 ratio, and by Reno, in an Oct. 26 press conference.
When is race-based electoral districting required by the Voting Rights Act? When is it prohibited by the 14th Amendment? The law in this area is whatever justice Sandra Day O’Connor says it is. Her pivotal role was recently underscored by her brief but controlling concurrence in
Miller v. Georgia, 63 U.S.L.W. 4726 (June 29, 1995), the 5-4 decision striking down one of that state’s three majority-black congressional districts as unconstitutional.
Justice O’Connor’s handiwork is a jurisprudential mess-a confusing and indeterminate mélange of apparently conflicting statutory and constitutional doctrines, which provides little useful guidance to lower courts and amounts to a formula for endless litigation and political chaos.
Some of this confusion may be unavoidable. That’s because O’Connor-almost alone on the Supreme Court-seems to be struggling to steer a middle course between the Scylla of racial Balkanization and the Charybdis of black disempowerment. Her search for a necessarily indeterminate middle ground-albeit flawed in the execution by undue vagueness-seems the least flawed approach to a devilishly difficult group of issues.
Consider the alternatives: To O’Connor’s right, Justices Antonin Scalia and Clarence Thomas, with the substantial agreement of Justice Anthony Kennedy and Chief Justice William Rehnquist, are pushing a "colorblind Constitution" theory that could wipe out most majority-minority districts (and thus bring back all-white congressional delegations in many Southern states), that would demolish key provisions of the 1982 amendments to the Voting Rights Act, and that makes a mockery of the Scalia-Thomas professions of fealty to judicial restraint and to the original meaning of the Constitution.
On June 28, 1993, in Shaw v. Reno, the Supreme Court held that it is presumptively unconstitutional (and too much like "political apartheid") for states to manipulate voting-district lines for the purpose of moving black or Hispanic voters toward proportional representation-at least if the resulting shapes are "bizarre."
On June 30, 1994, in Johnson v. De Grandy, the Court suggested that the Voting Rights Act may often require states to manipulate voting-district lines for the purpose of moving black or Hispanic voters toward proportional representation.
What’s a state supposed to do? Comply with the Voting Rights Act by violating the Constitution? Comply with the Constitution by violating the Voting Rights Act?
Or try to thread the needle, by somehow divining what the Court will deem too "bizarre" a shape, and then designing districts to pass that test (barely), while coming as close as possible to creating majority-minority enclaves in numbers proportionate to the racial makeup of the relevant population?
As the law now stands, many states (and courts) are likely to choose the latter course. They will extract from the voting-rights jurisprudence of the Rehnquist Court a peculiar touchstone: Go for proportionality, but don’t be too bizarre about it.
This sorry (not to say bizarre) state of affairs is what happens when a badly splintered Court-with warring camps that seem to talk past one another rather than to seek common ground-confronts an issue that calls for statesmanlike accommodation of two conflicting imperatives.
The first imperative is that Congress has properly decreed that in places where racial bloc voting predominates, majority-black and majority-Hispanic districts must sometimes be created to protect these traditionally underrepresented groups from having their voting power negated or diluted by submergence in a sea of whites.