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.

Even as the grave wrongs that justified the drastic Section 5 remedy have receded into the past, Congress has repeatedly extended it, most recently until 2031, without substantially easing the burden imposed on the many covered states and localities with good voting rights records.

Indeed, when Section 5 came up for renewal in 2006, Congress made it even more onerous. For example, Congress overruled a 2003 Supreme Court decision (in Georgia v. Ashcroft) by prohibiting states from replacing any of their existing majority-minority districts — safe seats for minority politicians — with districts that would be more racially integrated.

This despite the fact that virtually all black politicians in Georgia had urged the Court to rule as it did in 2003, and despite strong evidence that more-integrated districts would be better both for minority voters and for attaining what Rep. John Lewis (D-Ga.), a civil-rights icon, once called the goal of a community “where we would be able to forget about race and color and see people as people, as human beings, just as citizens.”

In part because of such perverse provisions, next year may well present President Obama and Congress with the likelihood of a near-term Supreme Court decision striking Section 5 down in its entirety. (There are no fewer than five challenges to Section 5 now pending in lower federal courts.) And that prospect will, or at least should, provide the president and Congress with a strong incentive to avert a looming constitutional clash by reforming Section 5.

The handwriting has been on the wall since a 2009 decision (in Northwest Austin Municipal Utility District Number 1 v. Holder) in which all nine justices made it clear that Section 5 badly needs revision, with five of them seeming to imply during the oral argument that if Congress does nothing, the Court will strike down the law at its next opportunity. Writing for eight of the justices, Chief Justice John Roberts stressed that: “things have changed in the South,” “minority candidates hold office at unprecedented levels,” and “the racial gap in voter registration and turnout is lower in the States originally covered by [Section] 5 than it is nationwide.”

In other words, the central problem that the provision was adopted to address seems largely solved. Meanwhile, added the eight, Section 5 “imposes current burdens and must be justified by current needs.”

The Court avoided deciding whether Section 5 is still constitutional by straining to decide the 2009 case on narrow statutory grounds.

The justices seemed to hope that this brushback pitch would prompt President Obama and Congress to reform Section 5 rather than risk seeing it wiped off the books. But so far they have done nothing, perhaps because no new challenge to Section 5 has yet reached the Court.

Meanwhile, as Rep. Jack Kingston (R-Ga.) once said to the Washington Post, Section 5 continues to require that in covered jurisdictions, “If you move a polling place from the Baptist church to the Methodist church, you’ve got to go through the Justice Department” (or the special court).

Indeed, the 2009 case got its start when a Texas municipal utility district with no history of voting rights violations bridled at Section 5’s requirement that it seek permission before it could move its elections to a more convenient location. The Justice Department fields tens of thousands of preclearance requests each year, often for actions as innocuous as moving a polling site.

And as justices stressed during the 2009 argument, there’s no plausible reason now for the law to require, say, Georgia, but not Ohio, to ask the federal government “Mother may I?” for every voting change.

In past cases, the Supreme Court has also criticized the Justice Department’s Civil Rights Division for using Section 5 to press covered states and localities to use extreme racial gerrymandering to create safe voting districts for black and Hispanic politicians. This has the side effect of “bleaching” nearby districts and thus delivering them to hard-right Republicans.

This racial gerrymandering undoubtedly helps black and Hispanic politicians win more seats. But it may diminish the legislative clout of black and Hispanic voters, who can safely be ignored by representatives of the more numerous overwhelmingly white districts. Extreme racial gerrymanders also aggravate the ideological polarization that has paralyzed Congress by hurting centrist candidates who seek to appeal to cross-racial coalitions.

In the best-known of the pending cases that could reach the Court, the Justice Department has blocked new voter-ID laws in South Carolina and Texas, claiming that they would disenfranchise many minority voters and are not needed to prevent fraud. But both points are debatable, and the Supreme Court rejected an attack on a similar Indiana law in a 2008 decision authored by now-retired Justice John Paul Stevens, the Court’s leading liberal, in part because it’s easy to get a valid photo-ID.

Even the prospect of a decision striking down Section 5 may not be enough to bring about the wholesale reform that should be adopted. But the most glaring flaw could readily be fixed, with a little presidential leadership: Congress could and should make it easy for states and localities with clean voting rights records to be exempted from Section 5’s coverage. And such a fix, though modest, might persuade the Court to avoid striking down Section 5.

The post Times Have Changed: Civil-Rights Era Voting Law Needs Reform appeared first on Stuart Taylor, Jr..

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.”

More liberal experts—including virtually the entire civil rights establishment—argue forcefully that the Voting Rights Act still has much work to do. Thernstrom does not deny that isolated bastions of white racism and bloc voting remain, especially in “pockets of the rural South.” But the evidence that she marshals largely supports her conclusion that in today’s world race-based districting is rarely if ever a necessary remedy. “Integration was the aim of the civil rights movement in the 1950s and much of the 1960s, and, by the ultimate test, American politics is now integrated,” she observes. “Blacks have been a major force in American politics for decades, and now they have reached its highest peak.”

Thernstrom is among the nation’s most distinguished scholars on racial issues. She is a conservative, but not a  reflexive one; and she is certainly not a  Republican apologist. Unlike Clarence Thomas, for example, Thernstrom acknowledges that merely insuring that blacks could register and cast ballots without being disenfranchised by discriminatory literacy tests and other gimmicks—which was all that the original Voting Rights Act specifically required—was not enough. It was also essential, she says, to insure the election of respectable numbers of blacks to office. In the South, entrenched white racists were determined to make blacks’ newly protected voting rights meaningless by devices such as submerging them in newly created at-large districts dominated by white racial bloc voting. And so race-based districting was the only way to make black votes count in the first decade or more after 1965. Thernstrom also shows why the extraordinarily intrusive federal supervision of state and local election rules required by Section 5 of the Voting Rights Act was initially essential to prevent white racists from finding new ways to disenfranchise blacks. “Only a federal sledgehammer could break open a southern political system barricaded against black entrance,” she writes.

At the same time, she expresses deep ambivalence about a historical irony that she sometimes seems to regard as a historical inevitability: the use of the Voting Rights Act to force creation of majority-black and majority-Hispanic districts would evolve into a federal mandate for unrestrained racial gerrymandering to elect as many minority representatives as possible at all costs, even absent proof of white racism. Such bias really is not the main problem with democratic representation today, as Thernstrom demonstrates. She cites massive evidence—including the statewide elections of minority senators and governors and, in 2008, the election of a black president—that districts no longer need to be specially rigged to insure racial fairness. The main problem now is that a left-right alliance of convenience has pushed race-based districting to extremes even as the need for it has diminished.

What harm could there be in maximizing black and Hispanic representation? Thernstrom has four compelling answers to this perfectly reasonable question: racial polarization; ideological polarization; limiting black and Hispanic political horizons; and instilling unwarranted pessimism in many blacks about the opportunities that are open to them.

First, such gerrymanders perpetuate racial polarization by balkanizing the electorate into black-dominated, Hispanic-dominated, and more numerous white-dominated districts that have been “bleached” by the removal of most, or at least many, black and Hispanic voters. This encourages politicians to appeal only to members of their own race, and puts the law’s imprimatur on the pernicious notion that it is only natural for voters to split along racial lines. In this way it perpetuates the poison of racial politics by encouraging minorities to practice the same kind of racial bloc voting that is seen as racist when done by whites.

Black and to a lesser extent Hispanic voters are more liberal than whites on average; racial gerrymandering almost guarantees election of the most left-wing of Democrats in majority-minority districts and the most right-wing of Republicans in bleached districts. The losers in this game are centrist politicians who do better in districts more representative of the electorate as a whole, and the plurality (if not majority) of voters who prefer centrist politics.

Third, racial gerrymandering “impedes black progress in significant ways.” Majority-minority districts have traditionally had to be as much as 65 percent black or Hispanic—given relatively low minority turnout—to guarantee election of black or Hispanic representatives. So majority-minority districts are outnumbered by the new bleached districts. As a result, racial gerrymandering has led to a net loss of Democratic congressional seats—an estimated twelve seats in 1994 alone—to Republicans who have little incentive to court mostly Democratic minority voters. For this reason, electing black and Hispanic representatives is not always good for black and Hispanic voters. The lack of competition in gerrymandered districts has also fostered apathy among minority voters, further depressing turnout. And the politicians who win those districts are often too far left of center to have much clout in legislative bodies or much chance in statewide elections.

And fourth, by thus creating “a black political class too isolated from mainstream political discourse,” Thernstrom remarks, racial gerrymandering has “further exacerbated the tendency of African-Americans to see themselves as a permanent minority separated from the American dream.” This, together with “the congressionally sanctioned narrative of an America still steeped in white racism,” feeds pessimism among blacks about their own opportunities for success, both in politics and in other realms. Such pessimism is unwarranted, Thernstrom insists. Witness the widespread certitude among black voters at the outset of Barack Obama’s presidential campaign that white America was too racist, manifestly or latently, to elect a black president. This proved spectacularly wrong when a higher percentage of whites (43 percent) voted for Obama in 2008 than for the 2004 Democratic nominee, Senator John Kerry (41 percent).

How did we come to this pass? And what explains the persistence of racial gerrymandering decades after the costs to the nation began to exceed the benefits?

Thernstrom answers these questions with a wealth of historical detail, which I find persuasive but less well organized than it could have been. By jumping forward and backward in time in order to organize her book on a topical basis—e.g., a chapter on Section 5 extending to 2006, followed by a chapter on Section 2 focusing on the 1982 amendments—she impedes the flow of her interesting narrative and falls into considerable recapitulation. But this is a relatively minor flaw in a masterful analysis.

Thernstrom writes that in 1964, “the majority of blacks remained unable to cast ballots in almost every Southern state,” due to legal barriers, social coercion, and violent intimidation, including the murders of civil rights activists. The Voting Rights Act changed that almost immediately, most dramatically in Mississippi, where black registration soared from 7 percent in 1964 to about 60 percent in 1966. The heavy lifting was done by the Justice Department’s Section 5 power, which defeated the ingenious ploys that Southern power structures had for many years used to disenfranchise blacks. Section 5 requires that racially suspect states and counties (“covered jurisdictions”) obtain permission (“preclearance”) from the Justice Department (or a special federal court) before making any change in voting qualifications or election procedures.

Section 5’s coverage was originally limited to Alabama, Georgia, Louisiana, Mississippi, South Carolina, Virginia, and most counties in North Carolina, based on a statistical formula well-designed to identify places where blacks had been disenfranchised. “Preclearance” was granted only if the jurisdiction could prove the proposed changes to be untainted by racism. In 1969, however, the Supreme Court vastly expanded the scope of Section 5—initially intended mainly to protect blacks’ rights to register and cast ballots—in Allen v. State Board of Elections.

Mississippi, which Thernstrom calls “the most racist of all racist states,” had blocked blacks from being elected to local office by amending state laws to replace single-member districts, some of which had black majorities, with countywide elections. This insured that white bloc voting would doom black candidates to defeat. The justices responded by diving into the complex terrain of preventing covered jurisdictions from thus “diluting” black voting power. Thernstrom applauds this result. But she also laments it as a first step in the transformation of the act into a mandate to manipulate voting district lines in pursuit of the manipulators’ notion of fair apportionment of political power among racial groups. Meanwhile, the Supreme Court’s one-person-one-vote decisions essentially required the redrawing of every voting district in the country every ten years, with the Justice Department wielding veto power and increasingly committed to race-based districting.

Section 5 was originally set to expire the year after Allen, on the assumption that by 1970 such extraordinary federal oversight would no longer be needed to overcome massive white resistance and thus would become constitutionally suspect. But Congress extended Section 5 in 1970 and repeatedly thereafter—most recently in 2006, until 2031. “The emergency of black disenfranchisement has come to be treated as near permanent—even in an era when an African American can be elected president,” Thernstrom concludes.

In 1970 and in 1975, Congress also expanded the law well beyond its original purpose of combating racism in the Old South. The amendments banned all literacy tests nationwide, whether or not designed to disenfranchise blacks. They extended the law’s protection to Hispanic and other “language minorities”—despite the paucity of evidence of governmental efforts to deny them the right to vote—as well as less numerous Asian Americans, American Indians, and Alaskan Natives. They classified English-only ballots as language discrimination. And they changed the statistical trigger to extend Section 5’s coverage to Texas, Arizona, and scattered counties in other states that had nothing like the deep South’s egregious history of minority disenfranchisement.

The transformation of the Voting Rights Act into a racial gerrymandering machine got a big impetus in 1982. A massive lobbying effort by civil rights groups persuaded Congress to revolutionize the meaning of the previously insignificant Section 2, which unlike Section 5 covers the entire country. The 1982 amendments made a dead letter of a 1980 Supreme Court decision that required plaintiffs in voting rights lawsuits under the Fourteenth Amendment equal protection clause to prove intentional discrimination. By amending Section 2 to authorize lawsuits based on unequal “results,” Congress allowed voting rights plaintiffs to bypass the equal protection clause and its tougher burden of proof. The civil rights groups’ objective was to require states and localities all over the country—even in areas with no history of racist disenfranchisement—to draw as many majority-minority election districts as possible, in pursuit of proportional representation in all legislative bodies. And the groups got most of what they wanted, some from Congress, the rest from the courts.

The new Section 2 guaranteed equal opportunity for minorities “to participate in the political process and to elect representatives of their choice,” and specified that the number of minority representatives elected “is one circumstance which may be considered.” This language doomed at-large voting systems even if they were rooted in good-government reforms. It could also be seen as requiring pursuit of proportional representation based on race. That was where most liberals wanted to go, and also the most obvious easy-to-apply standard now that the law had gone beyond remedying real discrimination and had started apportioning political clout based on race. It is true that Congress added a compromise proviso stating that the new Section 2 did not establish a right for minorities to be “elected in numbers equal to their proportion of the population”; but civil rights groups, the Justice Department, and the Supreme Court brushed past the proviso, ignored the corresponding legislative history, and read Section 2 essentially as requiring pursuit of racial proportionality.

The key decision was Thornburgh v. Gingles, in 1986. Justice William Brennan’s majority opinion held that if the evidence established that whites voted as a bloc in a jurisdiction, and that black voters were politically “cohesive,” then the Voting Rights Act required drawing as many reasonably “compact” majority-black and majority-Hispanic voting districts as possible. And this formula could apply almost everywhere, at least in the South, especially when lower court judges followed a section of the Brennan opinion that commanded only a plurality of four. In that section Brennan redefined white bloc voting as being present whenever most whites vote down the candidates preferred by most blacks—even if the reason is political ideology, not race. This meant that if most whites vote Republican and most blacks vote Democratic, as is now typical across the South, this alone would establish both white bloc voting and black political cohesiveness. So Brennan’s opinion effectively required the drawing of as many “geographically compact” majority-minority districts as possible.

Some lower courts soon dispensed with the “compactness” requirement as “a relative term” (as one judge put it) that could be stretched to draw bizarrely shaped districts wherever possible to scoop in a safe majority of blacks (or Hispanics). Some of these districts stretched hundreds of miles and were little wider at many points than a highway, or used finger-like extensions to pull middle-class minorities who had moved to the suburbs into inner-city poor districts.

The Justice Department’s Civil Rights Division, collaborating closely with civil rights groups, used its vast Section 5 power to insist on heavy-handed racial gerrymandering to create odd-shaped districts, especially during the decennial redistricting after the 1990 census. In the process, the division brushed aside Supreme Court precedents ruling that the division had Section 5 power to pre-clear only changes in state or local rules that reducedminority representation. The division insisted instead on “max-black” changes to increase the number of majority-minority districts whenever district lines were redrawn. It even treated a state’s failure to draw the maximum possible number of majority-minority districts as proof of “a discriminatory purpose.” In short, federal bureaucrats were routinely intruding deep into state and local electoral processes, even absent evidence of racism, to demand the manipulation of district lines to elect enough blacks and Hispanics to satisfy de facto racial quotas.

This approach, which Thernstrom plausibly calls “lawless,” was in keeping with the ideology shared for decades by the vast majority of career lawyers in the Civil Rights Division. In Thernstrom’s words, they “see themselves as valiant defenders of civil rights holding the line against pressures from opponents of race-based districting and other race-conscious politics” and are quick to attribute such opposition to racism. The career lawyers’ politically appointed bosses in the first Bush Justice Department were glad to go along. By taking pro-racial-gerrymandering positions philosophically at odds with the anti-quota rhetoric that Republicans espoused in other areas of the law, these political appointees helped to engineer a net gain in districts designed for Republicans.

In fact, most state and local officials would have weighed race as one of many political factors if left to their own devices. But the Civil Rights Division’s power left them little choice but to make race the dominant consideration. The results included fourteen new black-majority House districts between 1990 and 1992, all but two in the South, many of them bizarrely shaped and surrounded by Republican districts.

In the early 1990’s, the Supreme Court began to resist the stampede toward racial proportionality at all costs that its own decision in Gingles decision had helped set in motion. This reflected the replacement in 1991 of the passionately liberal Thurgood Marshall by the arch-conservative Clarence Thomas. But rather than clarifying or overruling Gingles, the conservative justices chose—unwisely, in Thernstrom’s view—to advance a novel and problematic interpretation of the equal protection clause, one that put it on a collision course with the Gingles interpretation of the Voting Rights Act.

Justice Sandra Day O’Connor’s opinion for the 5-4 majority in Shaw v. Reno, in 1993, likened North Carolina’s bizarrely shaped race-based congressional districts to “political apartheid” and sent the case back to the lower courts to determine whether the districts were an unconstitutional effort to “segregate” voters based on race. Such extreme racial gerrymanders, O’Connor wrote, threaten “to balkanize us into competing racial factions,” contrary to the Fourteenth and Fifteenth Amendments’ goal of “a political system in which race no longer matters.” They also reinforce “the perception that members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike, share the same political interests, and will prefer the same candidates at the polls.”

The justices used a similar rationale in 1995, in Miller v. Georgia, to strike down the extreme racial gerrymander that the Georgia legislature had adopted—at the insistence of the Civil Rights Division—in redrawing that state’s congressional districts. Justice Anthony Kennedy’s majority opinion whacked the Civil Rights Division for “a serious intrusion on the most vital of local functions” and for having “expanded its authority . . . beyond what Congress intended” in order to impose an "implicit command that states engage in presumptively unconstitutional race-based districting." Subsequent decisions struck down racially gerrymandered congressional districts in North Carolina Texas, and Louisiana.

The conservative justices’ diagnosis was correct but their remedy was problematic, spurring cogent criticisms from thoughtful scholars as well as a firestorm of hyperbolic attacks from civil rights groups. As Thernstrom points out, a regime in which one powerful federal authority (the Supreme Court) finds states in violation of the Constitution for complying with the demands of another powerful federal authority (the Civil Rights Division) was not easy to square with the conservative justices’ professed respect for states’ rights and judicial restraint.

Meanwhile Justice O’Connor was becoming less reliably conservative in race cases. One result was that the Shaw-Miller line of cases fizzled out in 2001, when she switched sides and voted with the Court’s four liberals to uphold a racial gerrymander very much like the ones that she had assailed in Shaw and Miller. Her explanation was that in the new case, Easley v. Cromartie, it was not clear that race, rather than partisan politics, was the legislature’s predominant motive. The new majority’s new message was clear: if you want racial gerrymanders, camouflage them as partisan gerrymanders. And then the Court’s balance shifted yet again. In early 2006, President Bush appointed Samuel Alito, a consistent conservative, to succeed O’Connor. Now there are five justices who generally share Thernstrom’s view that “in a society that is genuinely open to black opportunity, colorblind principles have no moral competition.”

Huge bipartisan majorities of Congress adopted a dramatically different view in the Voting Rights Act amendments of 2006. Congress extended and amended Section 5 in ways that seemed to presuppose a vision of the South as a place where racism is “more subtle” than in 1965, but “the effects and results are the same,” in the words of the House Judiciary report. It said that states were poised to “effectively shut minority voters out of the political process.” The bill itself warned that without Section 5, minorities would be deprived of “their right to vote,” as if white supremacists were poised to take over the South again as soon as the Section 5 cop is off the beat

Civil rights groups thoroughly dominated the legislative process, spoon-feeding what Thernstrom calls “fear-mongering nonsense,” reflecting “deliberate blindness to current reality,” to the Republican-controlled Congress. It extended until 2031 Section 5’s tight, supposedly temporary federal control over every aspect of the election process in the South and other covered jurisdictions. Instead of taking into account the vast racial progress of all covered states, Congress made Section 5 even more intrusive. It overruled two Supreme Court precedents limiting the Civil Rights Division’s Section 5 powers. It kept under the federal thumb the same "covered jurisdictions" that it had designated decades before, while adding no new ones. And it ensured the continued unworkability in practice of the theoretical right of covered jurisdictions to "bail out" of Section 5 coverage if their racial records in recent years were clean. All this despite data suggesting that many covered jurisdictions have done a better job of getting minorities to the polls and elected as representatives than many states and other jurisdictions that have never been covered.

Congress adopted as its own fact-findings a massive record, compiled by civil rights groups with axes to grind, of incidents supposedly showing violations of minority voting rights in the South and other covered jurisdictions, and a need for an extended and fortified Section 5. Thernstrom draws on the work of other leading scholars who could hardly be called conservative to argue that there is less to these findings than meets the eye. New York University Law School’s Samuel Isaacharoff, for one, has stressed “the basic absence of a record of willful exclusion of the sort that could easily be marshaled in 1965 and even in 1982.”

Two major Supreme Court cases in 2009 illustrated the building tension over the Voting Rights Act between the newly conservative Supreme Court and the Democrats who had taken control of Congress and the presidency. On March 9, in Bartlett v. Strickland, the justices cut off a push by liberal groups to add a new mandate that states and localities manipulate district lines to draw black and Hispanic “crossover” districts in areas where it was not possible to draw more majority-minority districts. Crossover districts include sufficient minorities of black or Hispanic voters to form coalitions with like-minded white Democrats in order to elect the candidates preferred by blacks or Hispanics—all of them Democrats. “This position, if adopted by the [Supreme] Court,” writes Thernstrom, “would have completed the transformation of the Voting Rights Act from a law designed to protect blacks from racial animus in politics—providing equal political opportunity—to one intended simply to maximize African-American political power by whatever means, while augmenting Democratic Party power as well.” She applauds Justice Kennedy’s ruling for a 5-4 majority that while states are free to choose crossover districts, reading the Voting Rights Act as mandating such districts would “unnecessarily infuse race into virtually every redistricting, raising serious constitutional concerns.”

Later, as Thernstrom’s book was going to press, the conservative justices seemed poised to uphold a challenge to the constitutionality of Section 5, as amended and extended in 2006, which would have precipitated a congressional firestorm. But the June 22 decision in Northwest Austin Municipal Utility District v. Holder was doubly surprising. First, the four liberals (and all the conservatives but Thomas) joined Chief Justice Roberts’s majority opinion, including his assertion that Section 5 “imposes substantial ‘federalism costs’ ” and had become so problematic that it "raises serious constitutional questions." Second, and not coincidentally, eight justices (all but Thomas, who would have struck down Section 5) sidestepped these questions by ruling that the utility district was eligible to seek a "bailout.” The message to Congress was clear: we stepped back from the brink this time, but unless you make Section 5 less onerous on the many covered jurisdictions with no recent history of racist election rules, we may strike it down the next time.

Where this will lead remains to be seen. Meanwhile Thernstrom’s book is the best guide to where we are now, how we got here, and why it is a bad place to be.

The post A Bad Place To Be appeared first on Stuart Taylor, Jr..

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.

The post The Voting Rights Act And Its Wrongs appeared first on Stuart Taylor, Jr..

So testified civil-rights legend John Lewis, now a Democratic representative from Atlanta, on September 16. Similar alarums have poured forth from all of the liberal civil-rights groups. Some have joined Lewis in tarring with the Jim Crow brush a nominee who has consistently endorsed equal opportunity for minorities and women.

In the process, these Roberts critics have squandered much of their already-depleted credibility.

Roberts’s interpretations of antidiscrimination laws in memos and other writings between 1981 and 1992 — which may also represent his current opinions — were sometimes too narrow, in my view. (I especially dislike his 1982 critique of a Supreme Court decision ordering Texas to admit illegal immigrant children to its schools.) But his positions were both well reasoned and consistent with his restrained view of judicial power.

The nominee’s greatest sin, in the eyes of civil-rights groups, has been opposition to their agenda of race-based and gender-based preferences — an agenda that has arguably done disadvantaged Americans of all races more harm than good.

Many media accounts have uncritically repeated claims by civil-rights groups that the Roberts writings from 1981 to 1992 were steeped in out-of-the-mainstream, right-wing ideology. Rather than debating his preening inquisitors on the merits, Roberts left these claims largely unrebutted. He chose instead to insist — sometimes implausibly — that he had been stating only his superiors’ views.

The point here is that those views were far more defensible than the media coverage might suggest. A sampler:

Voting Rights. Voting is "one of the most precious rights we have as Americans," Roberts testified last week. This was entirely consistent with his much-assailed memos criticizing what was to become the key 1982 amendment to Section 2 of the Voting Rights Act.

The 1982 amendment was not about the already-established rights of minorities to vote. It was about making it easier for them to elect black and Hispanic candidates, by challenging at-large elections, multimember districts, and other widely used state and local election rules. Such rules — often adopted for reasons unrelated to race — were big obstacles to minority candidates in racially polarized, majority-white districts.

In 1980, the Supreme Court had held, in Mobile v. Bolden, that plaintiffs challenging such voting methods must prove intentional discrimination. The 1982 amendment overturned Bolden by barring any voting method that "results in" dilution of the black vote.

During the 1981-1982 debate, Roberts wrote that the proposed amendment would establish "a quota system for electoral politics by creating a right to proportional racial representation on elected governmental bodies." This, Roberts added, would flout the traditional civil-rights goal of "ensuring equality of opportunity and treatment, not … mandating particular results in terms of racial or sexual representation."

Congress rejected such warnings and adopted the 1982 amendment by overwhelming bipartisan majorities. But history has borne out Roberts’s predictions. Courts did see the 1982 amendment as requiring creation of as many "majority-minority" districts as possible, some with bizarre shapes, to facilitate the election of black and Hispanic representatives in proportion to their share of the state or local population.

Another consequence, also predicted by Roberts, was to put the Voting Rights Act on a collision course with the 14th Amendment. The Supreme Court held in 1993, in Shaw v. Reno, that it was unconstitutional to design strangely shaped districts to "separate voters by race" — a practice that the 1982 amendment had been widely read to require. Such racial gerrymandering threatens to "balkanize us into competing racial factions," wrote Justice Sandra Day O’Connor for the 5-4 majority, by encouraging politicians of all races to appeal only to members of their own.

Meanwhile, as others had predicted, the 1982 amendment fostered an alliance of convenience between conservative Republicans and the most-liberal Democrats to pack black and Hispanic voters into majority-minority districts.

This dramatically increased the number of black and Hispanic representatives. But it also surrounded them with overwhelmingly white districts, where conservative Republicans — with no incentive to court minority voters — could defeat moderate Democrats who had depended on the support of minority voters. It may also have helped Republicans win control of the House in 1994.

So the net effect of the 1982 amendment may well have been to reduce the clout of black and Hispanic voters, by leaving them with black and Hispanic representatives who are isolated and powerless in Congress and in other legislative bodies.

Racial preferences. In various memos, Roberts articulated the Reagan Justice Department’s stand against what he called "reverse discrimination." As deputy solicitor general, he also urged the Supreme Court in 1990 to strike down racial preferences in awarding broadcast licenses.

These positions were at odds with establishment opinion. But they were very much in the mainstream of general public opinion. In virtually every neutrally worded poll, voters — often including black voters — have overwhelmingly opposed racial preferences.

In his testimony last week, Roberts applauded "beneficial affirmative action to bring minorities [and] women into all aspects of society," while stressing the distinction between such programs and the quotas that he had criticized before. He was noncommittal about systematic preferences that purport not to be quotas, such as the University of Michigan Law School admission program that the Court upheld by 5-4 in 2003 in Grutter v. Bollinger.

I would guess (and I hope) that he will narrow Grutter and other pro-preference precedents but stop short of overruling them. In any event, while preferences have undoubtedly increased the number of minority-group members in high places, they have done little for most black and Hispanic people. And they have diverted civil-rights energy and attention from the plight of the uneducated poor and near-poor. These people are not even minimally qualified to take advantage of the preferential programs that so obsess the civil-rights groups who claim to be champions of the downtrodden.

Women’s rights. "Roberts Resisted Women’s Rights," blared a front-page Washington Post headline on August 19. Not really. He has consistently supported women’s rights to be free from discrimination and to receive "equal pay for equal work."

What Roberts resisted — sometimes persuasively, sometimes not — were broad readings of ambiguous antidiscrimination laws. He also resisted the counterfactual assumption that the large male-female gap in average salaries across the nation proved pervasive sex discrimination.

I have my doubts about Roberts’s Reagan-era view that Title IX, the 1972 law barring sex discrimination in federally subsidized education programs, should not have been applied to college sports programs that did not themselves receive federal money. But that view was adopted in 1984 by the justices, including O’Connor, a strong supporter of women’s rights.

It’s also true that all nine justices rejected Roberts’s 1991 argument that Title IX did not authorize damage lawsuits by students claiming sexual harassment in high school. But the appellate decision that he was defending had been joined by Judge Frank M. Johnson Jr., a hero of the civil-rights movement.

Roberts was appropriately emphatic in assailing feminists’ efforts to require equal pay for men and women in different jobs if judges find the jobs to be to be of "comparable worth." Laundry workers would have to be paid as much as truck drivers, for example — despite the judgment of the marketplace that truck drivers, whether male or female, are worth more.

To write "comparable worth" into the law, wrote Roberts in 1984, would mandate "nothing less than central planning of the economy by judges." Hyperbolic? Perhaps. But the young Roberts’s word choices — including the unfortunate "illegal amigos" — tell us less about his widely impugned "heart" than do the many professional women and others who praise him as an unfailingly generous mentor, colleague, and friend.

"As a Democrat and a woman," testified former Roberts colleague Kathryn Webb Bradley, now a law professor, "I could not be here today if I did not feel confident entrusting my own rights and those of my children and their generation to John Roberts for safekeeping."

The post Opening Argument – Young John Roberts: Reasonable On Civil Rights appeared first on Stuart Taylor, Jr..

One flaw in the analysis is that while the California decision suggests that mere variations in the accuracy of voting machines from one county to the next are unconstitutional, Bush v. Gore suggests the opposite. Perhaps some of the judges’ colleagues on the U.S. Court of Appeals for the 9th Circuit noticed: The recall decision, Southwest Voter Registration Education Project v. Shelley, has been stayed, pending review by an 11-judge panel.

In any event, the large differences between the two cases help illustrate when federal judges should — and should not — intervene in elections. They also point to why, notwithstanding all the hysterical attacks by legions of law professors, Bush v. Gore was a reasonable interpretation of the Constitution.

The three judges, who are among the more liberal members of the famously liberal, often-reversed 9th Circuit, upheld a lawsuit by the NAACP and other groups seeking to postpone California’s recall vote for several months so that all of the state’s voters will be able to use new, more-accurate voting machines.

The court’s logic was so sweeping as to cast doubt on the constitutionality of the election systems of any and all states in which one or more counties buy modern, more-accurate voting machines sooner than others do. The crux of the opinion was that "voters in counties using pre-scored punch-card balloting will have a statistically more probable chance that their vote will not be counted than voters in other counties," and that this violates the equal protection clause.

It apparently escaped the judges’ attention that postponing the recall vote until the next logical date — March 2, when California will hold its statewide primary — might cause even more vote-counting problems than would proceeding with the old machines on October 7, as scheduled by state officials. Los Angeles County Registrar-Recorder Conny McCormack told The Los Angeles Times that the new machines to be used in the primary election on March 2 — the date to which the recall would presumably be postponed — will not be able to handle the lengthy recall ballot and the primary ballots at the same time. "No one even asked the largest county in the state if we had the capacity to run it in March," McCormack said. "The answer is no." Oops.

The California decision derives a modicum of plausibility from the confusing logic of the Supreme Court’s one-person, one-vote precedents and some other election-law precedents. But the three judges were quite wrong to assert that the case "presents almost precisely the same issue as the Court considered in Bush, that is, whether unequal methods of counting votes among counties constitutes a violation of the equal protection clause."

To the contrary, Bush v. Gore asserts that unequal methods of counting votes among counties ordinarily do not violate equal protection. As Justice David H. Souter said in his partial concurrence, "The Equal Protection Clause does not forbid the use of a variety of voting mechanisms within a jurisdiction, even though different mechanisms will have different levels of effectiveness in recording voters’ intentions; local variety can be justified by concerns about cost, the potential value of innovation, and so on." The majority opinion made the same point, but less explicitly.

The constitutional problem in Bush v. Gore was not the fact that some Florida counties had used old, relatively error-prone punch-card voting machines. It was the rushed, chaotic, unreliable process that the Florida Supreme Court had invented — after Bush had won the machine recount mandated by the state’s election code — to keep alive Gore’s effort to overcome Bush’s freakishly small margin of victory. That court had invented a right to an unprecedented statewide manual recount, while allowing local elected officials to choose vote-counters and to use subjective, non-uniform, inconsistent, and thus easily manipulable, standards to decide whether to count ambiguously marked individual ballots as votes for Gore, Bush, or neither.

In short, the Florida court’s plan seemed less reliable than it needed to be and far more vulnerable to partisan gaming than the machine recount that Bush had already won. It seemed likely — designed, in my view — to stack the deck in Gore’s favor.

The Supreme Court stated the problem less starkly. It said that when "a state court with the power to assure uniformity has ordered a statewide recount, … there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied."

The majority opinion identified four aspects of the Florida court’s recount that collectively amounted to a violation of the equal protection clause: the absence of specific, uniform standards for deciding which of many "undervotes" to interpret as legally valid votes; the use of untrained and unsupervised vote-counters to do the interpreting; the arbitrary exclusion from the planned recount of "overvotes," which were twice as numerous as undervotes but which Gore apparently considered less likely to help him; and the inclusion in the vote totals of a completed manual recount of the most heavily Democratic precincts of Miami-Dade County, without regard to whether there would be time to look for uncounted undervotes in more-Republican precincts.

(Justices Souter and Stephen G. Breyer agreed with their five more-conservative colleagues that the Florida court’s approach violated equal protection; they dissented from the more debatable decision that there was no time to begin anew.)

None of these equal protection problems exist in the California case, and no county’s voting machines were chosen to favor either side in any election. This is not to say that the September 15 decision was legally frivolous. The state itself has conceded that the disputed punch-card machines are "archaic," that they fail to count a relatively large number of ballots, and that the counties still using them have disproportionately large numbers of minority voters. The state has also pledged in a court-ordered consent decree that all counties will phase out the old machines by March 1, 2004.

Common sense and some precedents suggest that in a sufficiently extreme case, a court might be justified in ordering a county or state to phase out obsolete machines if more-accurate machines are available at reasonable cost. But any such order should set a timetable that: 1) does not unduly disrupt the state’s scheduling of its elections, 2) does not seem likely to skew the election’s outcome, excepting any effects attributable to more-accurate vote-counting, and 3) allows time to phase in new machines without creating new problems.

The California decision flunks the first and second tests and, McCormack’s statement suggests, quite possibly the third. The three judges cavalierly cast aside a provision of the California Constitution requiring that recall elections be expedited to limit the duration of the uncertainty hanging over the state. Their decision ignored the state’s interest in removing the governor, if that proves to be the will of the voters, without undue delay. And, of course, it is widely viewed as likely to improve Gray Davis’s chance of survival.

Should the Supreme Court step in to reverse this decision if the 11-judge panel does not? It depends, in my view, on how many of the justices would dissent.

This brings me back to Bush v. Gore: While its legal analysis was sound, I wonder whether it would have been wiser for the justices to punt the 2000 election brawl to Congress. The reason is that the 5-4 conservative-liberal split that made Bush president gave rise to possibly unfair but entirely understandable suspicions that all nine justices were driven not by legal principle but by their partisan political preferences. Those suspicions were fanned by the fact that the five justices who overturned the Florida court are ordinarily more deferential to state courts and states’ rights than the four dissenters.

A decision overturning the California ruling would also be legally sound. But like Bush v. Gore, it would gratify Republicans and anger Democrats. And if the four more-liberal justices were once again in dissent, the ugly appearance of partisan judging would be unavoidable.

A 9-0 decision to let California proceed with its crazy recall election as scheduled, on the other hand, would be a very good way for the justices to strike a blow against government by judiciary while putting the Bush v. Gore unpleasantness behind them.

The post Opening Argument – When Judges Should — and Should Not — Intervene In Elections appeared first on Stuart Taylor, Jr..

These were all, at best, recklessly false exercises in racial demagoguery. There was never any credible evidence for any of them. But the charges have had a big effect. Amplified in the media, this disinformation campaign has left a great many African-Americans in Florida and elsewhere believing that they were deliberately "disenfranchised" last year. In reality, the 13 percent of Florida’s registered voters who are black succeeded in casting a disproportionately large (15 percent) share of the nearly 6 million ballots there last year, and the black vote soared to 65 percent above the 1996 total. Rarely have so many been so dishonestly inveigled into so utterly unfounded a sense of victimization.

Now comes the U.S. Commission on Civil Rights-whose Clinton-appointed chairwoman, Mary Frances Berry, runs it as a propaganda mill for the victimology wing of the Democratic Party-with a relentlessly partisan 200-page "staff report" that was leaked this week and which will be discussed at the June 8 meeting of the eight commissioners. It catalogs every complaint that could be cadged from the unhappiest Democrats who could be found as evidence of "disenfranchisement" falling "most squarely on persons of color"; implies that there were massive violations of the Voting Rights Act by Jeb Bush and others; and calls for a Justice Department investigation.

While trashing Gov. Bush and the hapless Katherine Harris (Florida’s elected Secretary of State) as disenfranchisers for failing to run a perfect election, the report glosses over the inconvenient facts that, under Florida law, Bush has virtually no authority over the voting process, and the Secretary of State’s role is mainly to provide nonbinding advice to local officials. The report also ignores the fact that the local officials who run the process and are thus directly responsible for most of the problems detailed in the report-bureaucratic errors, poorly designed ballots, jammed phone lines, and other inefficiencies that caused long delays and unfortunately prevented an unknown number of voters from casting ballots-are mostly Democrats.

There were plenty of problems in Florida. Their combined effect was to block perhaps one-tenth of 1 percent of all those who went to the polls from casting votes at all. They also contributed to the confusion of the disproportionately black 2.9 percent of voters who spoiled their presidential ballots by punching or marking them erroneously. Indeed, the somewhat confusing "butterfly ballot" in Palm Beach County (designed by a Democratic official), combined with voter error, probably cost Vice President Gore some 6,000 votes-more than enough to overcome George W. Bush’s 537-vote margin.

But all of that has been known for many months. The most important (but least emphasized) revelation in this error-littered report is that Berry’s investigators have been unable to find even a shred of evidence that anyone deliberately disenfranchised a single eligible voter.

Consider the post-election clamor about "roadblocks" and police "intimidation." All that’s left of it is a pathetic four-page passage fatuously faulting the Florida Highway Patrol for conducting a single, routine vehicle checkpoint "within a few miles of a polling place in a predominantly African-American neighborhood," and preposterously suggesting that the occasional presence of troopers "in and around polling places [was] arguably in direct violation of Florida law."

But while the report stresses the complaint of one Roberta Tucker that she felt "intimidated" and "like it was sort of discriminatory" when stopped by white officers at this checkpoint while on her way to vote, the vast majority of the drivers stopped were white. Tucker acknowledged that the troopers let her proceed after briefly inspecting her driver’s license. And according to unrebutted testimony, the only reason why any troopers visited any polling places was to vote.

The report does detail one widely reported episode of gross insensitivity to voting rights that led foreseeably to the erroneous disenfranchisement of "countless" people: State officials implemented a badly written 1998 anti-fraud law in a way that contributed to the purging from the rolls of eligible voters.

The 1998 law was designed to remove ineligible felons (and dead people) from the rolls. But in their zeal to ensure that no ineligible felon go unpurged, officials in Harris’s office, with input from the staff director of the state clemency board (which Bush heads), urged an overinclusive approach that led local officials to remove 1,104 eligible voters-108 from the rolls who were not felons at all, and 996 whose civil rights had been restored by other states after they had served their sentences for felony convictions there. (These numbers come from an analysis in The Palm Beach Post, which discredits other media reports that "thousands" of people were wrongly disenfranchised.)

Forty-four percent of these people (and 49 percent of all Florida felons) were black. This racial disparity is, as the report stresses, troubling. But the roughly 500 African-American voters wrongly disenfranchised by the felon purge come to less than one one-thousandth of the 934,000 registered black voters in Florida.

Might these 500 and the rest of the 1,104 wrongly purged voters nonetheless have swung the election to Gore had they been able to vote? Possible, but doubtful. Assuming a relatively high 68 percent turnout in this group, about 750 of the 1,104 would actually have voted. They would have given Gore a net gain of 538 votes only if they had chosen him over Bush by at least 644 to 106. The felon vote may be Democratic-but not that Democratic. And, by the way, some 5,600 ineligible felons-68 percent of them registered Democrats-voted illegally in Florida last year, according to The Palm Beach Post. If officials had succeeded in purging all ineligible felons-and only ineligible felons-Bush’s 537-vote margin would have been well over 1,000.

Florida’s law disenfranchising felons who have served their sentences is a bad law that has been badly enforced. Florida is out of step with the 40 states that restore felons’ civil rights after they have served their sentences. The law should be repealed. And the wrongful disenfranchisement of 1,104 eligible voters was a gross injustice. But Bush and Harris have plausibly denied involvement in the felon purge. And even Mary Frances Berry does not claim that it was a Republican plot to steal the election.

The draft report also makes an elaborate but self-discrediting effort to imply that some kind of illegal racial discrimination must underlie the familiar fact that a far higher percentage of black voters in Florida (and elsewhere) spoil their ballots than do white voters. Contrary to the media-fostered myth that black voters are disproportionately stuck with punch-card voting machines that have higher spoilage rates than the machines used in predominantly white areas, the report notes (in passing) that the majority of white voters in Florida used the same punch-card machines as most black voters last year. It also says that the racial disparities in spoilage rates are attributable only "in a very small part" to differences among machines.

So what does explain these racial disparities? Some cite the well-known racial disparities in education and illiteracy rates and the unusually high percentage of first-time black voters in Florida last year. But the report rejects the first possibility (unconvincingly) and ignores the second, while offering no explanation of its own. Instead, it asserts that "persons living in a county with a substantial African-American or people-of-color population are more likely to have their ballots spoiled or discounted than persons living in the rest of Florida"-an odd way of summarizing evidence that black voters are more likely to make mistakes filling out their ballots than are white voters, even when using identical ballots and voting machines.

Are we supposed to think that the machines themselves are racist, that they set traps for unwary black voters while indulgently helping whites along? Or, perhaps, that the disparities in voter-error rates involve no racial discrimination at all?

The post Legal Affairs – Finding Racial Bias Where There Was None appeared first on Stuart Taylor, Jr..

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.

But the Texas case presents the Court with an opportunity, at long last, to draw a principled and intelligible line between unconstitutional racial gerrymandering, on the one hand, and permissible efforts to enable once-disenfranchised minority voters to elect representatives of their choice (as states are required to do by the 1982 amendments to the Voting Rights Act), on the other.

A good case can be made for striking down the two Houston-area districts before the Court. These districts, which border one another, were contorted into extreme and confusing shapes with dozens of split precincts for the purpose of separating black from Hispanic voters, so as to create one safe black and one safe Hispanic district. The alternative would have been two districts in which candidates would have to build cross-racial coalitions.

In contrast, the Dallas district appears to be on the constitutional side of the line. The process by which it was created-during the decennial reapportionment of 1991, in which Texas gained three new seats in Congress-shows why.

It was clear after the 1990 census that black voters in and around South Dallas were sufficiently numerous and geographically concentrated that a reasonably compact new congressional district could have been drawn with a narrow black majority. It was also clear that these black voters had been victims of a long history of race-based disenfranchisement, that they were politically cohesive, and that-given racial bloc voting-they could probably elect a representative of their choice only if such a district were created.

These circumstances suggested to all those involved in die 1991 Texas redistricting that a strong case could be made that creation of a district with a black majority (or near-majority) in the Dallas area was required by §2 of the Voting Rights Act, as construed by the Supreme Court in Thornburg v. Gingles (1986).

And, in fact, the near-majority-black district that was initially proposed by Eddie Bernice Johnson-who then headed the state senate’s Subcommittee on Congressional Districts, and whose goal was to create a safe black seal (for herself)-was reasonably compact.

But Johnson’s plan also provoked a pitched battle between her and two white Democratic incumbents from the Dallas area, Martin Frost and John Bryant. They engaged in a tug of war for various pockets of Democratic voters-conspicuously including black voters-and for areas like the white neighborhood near South Dallas in which Frost lived.

The result was a geographically tortured compromise that put large numbers of black voters who lived near the black South Dallas core of the new District 30 into the Frost and Bryant districts. Meanwhile, District 30 was drawn with long, crooked tentacles shooting out to the north and west, mainly to pick up enough voters (a majority of them white) to create a 50-percent black district with a total population large enough to satisfy the one-person-one-vote requirement.

The proper legal inferences from this history were aptly suggested by Justice Stephen Breyer in his questioning at the Dec. 5 argument:

The state’s goal of creating a majority (or near-majority) black district was warranted by its compelling interest in complying with the Voting Rights Act. Contrary to the lower court’s opinion, the new District 30 was "narrowly tailored" to achieve this goal, despite its bizarre shape, because the predominant purpose of its extreme deviation from compactness was not to maximize black representation, but to protect the neighboring white Democratic incumbents. Such gerrymandering to protect incumbents-however distasteful-violates neither the Constitution nor the Court’s precedents.

In other words, while the Dallas district was surely race-based, and while it was surely gerrymandered, it was not a racial gerrymander. The gerrymandering was, rather, of the partisan variety.

To be sure, it can be said that (as the lower court stressed) "racial gerrymandering was an essential part of incumbency protection," in the sense that white and black Democrats vied to pull black neighborhoods into their districts, based on the (entirely accurate) assumption that blacks would overwhelmingly vote Democratic. But this was emphatically not racial gerrymandering in the sense of drawing weird shapes in order to "segregate" minorities from whites, or to isolate them in one district, or to enhance minority voting power.

And while some of the justices appear to be shocked-shocked!-whenever they see racial "stereotyping" going on, in this context that’s just a pejorative label for the statistically accurate inference of probable political orientation from ethnic identity-whether it be Irish, Polish, Hispanic, or black. It’s the sort of practice that has long been so universally employed and so easily camouflaged in the redistricting process that any effort to eradicate it would only drive it underground, and thus would be an exercise in futility, ending in hypocrisy.

None of this is to suggest that there is anything admirable about the forces that drove the Texas districting process, the most potent of which was the partisan and self interested gerrymandering engaged in both by Johnson (who went on in 1992 to win the safe black seat she had created) and by the incumbent congressmen of both parties.

But this practice (like the use of racial and ethnic "stereotypes") has pervaded the redistricting process all over the country throughout for history. In Texas especially, the tradition for decades has been to give protection of incumbents priority over compactness in drawing district lines.

And any judicial effort to bar politicians from manipulating the redistricting process to serve their own personal or partisan interests would be a novel exercise in judicial activism with little basis in the Constitution. It would also be as futile as ordering the bears to stop defecating in the woods.

That may help explain why the three-judge lower court, in an opinion by Judge Edith Jones of the U.S. Court of Appeals for the 5th Circuit, made no effort to strike down any of the majority-white districts in Texas-some of which were no less bizarre in shape than District 30, and no less gerrymandered to suit the personal and partisan self-interest of incumbent politicians. The only districts the court struck down were the 50 percent black district in Dallas and the majority-black and majority-Hispanic districts in the Houston area.

For this apparent double standard, Judge Jones and others of the "colorblind Constitution" school of thought have been plausibly accused of engaging in a peculiarly color-conscious and result-oriented gerrymander of their own: attacking the constitutionality of politically motivated gerrymanders only when the beneficiary politicians and groups happen to be black or Hispanic.

Beyond that, the rules laid down by Judge Jones-a Reagan-appointed darling of the Republican right-would make it even more difficult to create majority-minority districts, as is sometimes required by the Voting Rights Act, without sacrificing incumbent white Democrats. How convenient-for the Republicans.

Justice O’Connor-whose comments at oral argument seemed to echo Judge Jones’ insistence on compactness in the drawing of majority-minority districts (and only those districts)-should heed the brief filed in the Texas case by Penda Hair of the NAACP Legal Defense and Educational Fund.

"By imposing a special, regular-shape-maximization requirement only on majority-minority districts," the brief contends, the Jones opinion "mandates that die stale discriminate against racial minorities, compared to other groups seeking recognition of their voting strength," and thus "heaps an additional disadvantage on minority groups which already suffer barriers to participation in the political process."

The post Why This District Should Be Upheld appeared first on Stuart Taylor, Jr..

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.

But when asked whether she would endorse any change at all in the 100-1 ratio, Reno mumbled, "I want… to hear from all concerned as to what the appropriate ratio might be," and "I have not been presented yet with what I think are the appropriate factors that could enable me to reach that decision." Huh?

Here we are, more than 1,000 days into the Clinton administration, and Janet Reno still has nothing to say about how to fix an exhaustively studied sentencing regime that she admits is unfair.

Reno’s explanation was, of course, hogwash. Her real message was this: "The president is scared to death of doing anything that might (however falsely) be called soft on crime, and I am a political hack, here to do his bidding. You won’t catch me sticking out my neck to avoid complicity in destroying thousands of lives that might be salvaged by a less barbaric system."

The conceit underlying the overall regime of federal drug sentencing is the notion that the multitude of factors that should be involved in determining each defendant’s degree of culpability, and appropriate penalty, can be legislatively predetermined and congealed into rigid rules. Congress’ primary method of doing this has been to calibrate prison terms to different types and weights of drugs and, in the case of crack, to choose a number (currently 100) by which the weight is multiplied to reflect the drug’s perceived special dangers.

It’s a stupid, destructive game that has purged federal drug sentencing almost entirely of common sense, has made it impossible for judges to fit the penalty to the individual crime and criminal, and produces such harsh results as to shock the consciences of almost everyone who sees it in operation, including most federal judges, conservative and liberal alike.

Take Judge Alex Kozinski of the 9th Circuit. In a recent interview (by me, for The American Lawyer), he was asked, "What do you think are some of the most grievous injustices in American society today?"

He thought for a minute, and said this: "To some extent, I think we tend to overpunish in our criminal system. Very often we put people away for 20, 30 years-sometimes more-for nonviolent crimes, usually minor drug crimes…. [I]n fact, while sitting [specially] as a district judge, I’ve imposed sentences on people that I thought were draconian. And there was nothing I could do about it. They qualified under the sentencing law, and basically their lives were snuffed out-or at least any meaningful life."

Kozinski was compelled in one case to send a man named Fred Hagler to prison for 20 years, without parole. Hagler’s crime: acting as a middleman in a small-time dealer’s sale of 2.3 ounces of crack, for $1,350, to undercover agents.

Hagler got 10 years because the crack weighed more than 50 grams (about two ounces), and another 10 years because prosecutors cranked into the formula one of his two minor prior convictions for simple possession of cocaine. He would have gotten life without parole-more than most murderers- except that prosecutors gave him a break (!) by disregarding the other prior conviction.

This for a 37-year-old doer of odd jobs who eked out a meager existence with his common-law wife and three children in a Los Angeles ghetto, and who was wiretapped asking a customer to lend him $60 so he could go down to Toys-R-Us and buy his little boy a birthday present.

It is the Fred Haglers of this world who get caught and packed into federal prison, only to be replaced by legions of ever-younger men, women, and children with nothing better to do than sell crack.

And yes, the Fred Haglers of this world are black-almost all of them. According to a May 21, 1995, article in The Los Angeles Times, "[n]ot a single white, records show, has been convicted of a crack offense in federal courts serving Los Angeles and six Southland counties since Congress enacted stiff mandatory sentences for crack dealers in 1986…. while hundreds of minorities have been locked up in federal prison."

Nationwide, black defendants accounted for 88 percent (and non-Hispanic whites for just 4 percent) of federal convictions for crack cocaine distribution in 1993, even though die majority of crack users are white. So black cocaine defendants receive far longer sentences on average than similarly situated white cocaine defendants.

Nor is this just a matter of blacks being the ones who happen to peddle cocaine in its most dangerous form. Plenty of whites sell crack, but Reno’s crack-busters target inner city defendants-which means blacks and Hispanics-almost to the exclusion of whites.

It’s not so much that Congress consciously rigged the system for the purpose of punishing blacks more harshly. But the crack sentencing regime is racist, in the sense that Clinton, Reno, and Congress insist on perpetuating the failed laws in the face of these huge disparities with no offsetting justification.

President Clinton himself asserted on Oct. 16 (in his speech on the day of the Million Man March) that "something is terribly wrong" when almost one-third of black men in their twenties are either in jail, on parole, or on probation, and when "that is a disproportionate percentage in comparison to the percent of blacks who use drugs in our society."

Yet two weeks later, Clinton made sure that a disproportionate percentage of blacks would continue filling up federal prisons, when he signed a bill blocking the Sentencing Commission’s proposal to eliminate the 100-1 crack-to-powder ratio.

The commission had recognized that crack might pose special dangers, and had accordingly proposed to fine-tune penalty enhancements for some crack defendants, particularly those with a record of violence. But that wasn’t tough enough for Clinton.

It should have been. The dangerousness of crack as compared with powder cocaine has been greatly exaggerated. It’s true that smoking crack produces more rapid and intense highs-and perhaps more addiction-than does snorting powder cocaine, and that the crack market involves small-dose sales to low-income users and much violence among sellers.

But as the Sentencing Commission found in a 242-page report: Powder cocaine, when injected, is just as addictive as crack and more deadly; it is easy to convert powder cocaine into crack; "cocaine is cultivated, processed, imported, and distributed almost exclusively in the powder form at the higher levels of the drug distribution chain," and therefore, the crack penalties often have the perverse effect of "punishing low-level (retail) crack dealers far more severely than their high-level (wholesale) suppliers."

In addition, neither crack nor powder cocaine "excites or agitates users to commit criminal acts," or leads them to "commit large numbers of violent acts to raise money to buy drugs," according to the commission’s report. And powder cocaine has the same effects on fetuses as crack. In short, crack has gotten far more than its share of the blame for inner city ills that would still be frightening if crack had never been invented.

But our president, while posturing about ending crack’s "devastating impact on … inner city communities…and families," cynically-chases the white hard-line-on-crime vote by wreaking further devastation on those same families. He is locking up their sons, husbands, and fathers, and some of their mothers and daughters, for the sake of some votes. That’s the barbaric, racist, Bill Clinton-Janet Reno drug policy. To borrow from an old saying of Vietnam War vintage, they are destroying the ghetto in order to save it-or, rather, to save themselves.

The post Clinton: Jailing the Ghetto for Votes appeared first on Stuart Taylor, Jr..

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.

To O’Connor’s left, Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer have voted to uphold extreme racial gerrymanders that threaten to aggravate the Balkanization of the electorate by entrenching as a permanent and officially sanctioned feature of our political process the very disease of racial bloc voting that the Voting Rights Act was designed to cure.

Such gerrymandering has been pushed by an unholy alliance of liberal black and Hispanic politicians and civil rights groups with conservative white Republicans, working in concert to create as many majority-minority voting districts as possible. With the energetic assistance of the Justice Department, under both Presidents George Bush and Bill Clinton, these allies have advanced their respective agendas at the expense of moderate white Democrats-and, arguably, to the detriment of most black voters.

MIDDLE GROUND

The O’Connor approach, on the other hand, seems to be to allow the creation of majority-minority districts that encompass reasonably compact communities of interest; to allow (or even require) such districts, when truly necessary, to remedy the virtual disenfranchisement that can result from dispersing minority voters among majority-white districts; but to prohibit the use of racial gerrymandering to pursue proportional representation at all costs.

Civil rights lawyers have voiced hyperbolic complaints that the Miller decision "guts the Voting Rights Act of 1965" "cripple[s] minority voting rights," and "has thrown into question the constitutionality of every black-majority district across the nation" in the words of Laughlin McDonald of the American Civil Liberties Union. But a reading of the Miller opinions suggests otherwise.

So does the Court’s summary affirmance, a few hours after Miller was announced, of a lower court decision upholding a California redistricting plan that included several relatively compact majority-minority districts. And so do the Court’s decisions to hear two appeals this fall involving majority-minority congressional districts in Texas and North Carolina.

A prediction: The number of black members of the House of Representatives, now 38, will remain well above 30 after the electoral system has absorbed the impact of…

O’Connor’s search for a middle ground, albeit flawed by undue vagueness seems the least flawed approach to a devilishly difficult group of issues.

The post Drawing The Line On Racial Gerrymanders appeared first on Stuart Taylor, Jr..

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.

The second imperative is that if we are ever to get away from racial politics and bloc voting, we must resist efforts to make race the main criterion in districting. That’s because even remedial race-based districting carries the heavy costs of encouraging politicians to appeal only to members of their own race-and of putting the law’s imprimatur on the notion that people are expected to vote along racial lines.

The Court’s liberals-Justices Harry Blackmun, now departed, and John Paul Stevens-sometimes seem to see the Voting Rights Act as a mandate for wholesale proliferation of race-based electoral districts, despite the danger of thereby entrenching the very racial bloc voting that the liberals deplore, and despite the act’s explicit disclaimer of any "right to have members of a protected class elected in numbers equal to their proportion in the population."

The Court’s two most ardent conservatives-Justices Clarence Thomas and Antonin Scalia- understandably abhor the racial spoils system that they see being ushered in by liberals, but have reacted in a lawless and dishonest way:

In Holder v. Hall, handed down the same day as the De Grandy ruling, Thomas (joined by Scalia) argued with passion and cogency that by "segregating the races into political homelands," the courts are moving toward the functional equivalent of "a scheme under which members of different racial groups are divided into separate electoral registers and allocated a proportion of political power on the basis of race." But rather than seeking a stopping point consistent with the Voting Rights Act, Thomas’ 59-page concurrence flouts the utterly clear intent of Congress (not to mention 25 years of Supreme Court precedent) by disingenuously claiming that the act provides no remedy for dilution of minority voting power in racially polarized, majority-white districts. The swing justices on this issue-Sandra Day O’Connor, Anthony Kennedy, David Souter (and, perhaps, Ruth Bader Ginsburg)-seem to be groping for a moderate middle course. But so far they have not been able to agree on much. Ginsburg has not yet spelled out her views. And O’Connor and Kennedy have lurched back and forth without signaling a clear sense of where they want to go.

If Justice-nominee Stephen Breyer can import some coherence and common sense into this confusion-by steering a principled path between the Scalia-Thomas colorblind absolutism and the liberal lust for racial enclaves-he will deserve the praise his admirers have heaped upon him as a moderate-spirited consensus builder.

Breyer may have a chance of doing just that. While voting-rights law is in a mess, symbolized by O’Connor’s atrociously muddled opinion for the 5-4 majority in Shaw, both that decision and Souter’s opinion for a unanimous Court in De Grandy represent a fundamentally healthy rejection of the extreme liberal view.

Meanwhile, the extreme conservative view of Thomas and Scalia has no chance of prevailing. They could not even win over Chief Justice William Rehnquist, their usual ally. While he has never seen a race-conscious remedy he didn’t hate, Rehnquist apparently could not swallow Thomas’ transparent effort to gut the Voting Rights Act in the guise of literalist "interpretation."

The challenge for Breyer will be to help shape the Court’s muddled middle into a solid center, and to help Souter complete a project on which he made a decent start in De Grandy: guiding lower courts to use the strong medicine of race-based districting as a remedy when absolutely necessary, while taking great care to avoid an overdose.

De Grandy is remarkable (although so far largely unremarked upon) for the rare unanimity with which the Court rejected the position of the Justice Department. Solicitor General Drew Days III had argued that Florida must seek proportionate representation of all the Hispanic people scattered across the entire slate by drawing as many Hispanic-majority districts as possible in the Dade County area (where the largest concentrations of Hispanic voters live).

The Justice Department would, remarkably, have required the state to give Hispanic and black voters in ,, the Dade area more than proportional representation, while fragmenting white neighborhoods so as to submerge all non-Hispanic whites in the Dade area into black-majority and Hispanic-majority state senate districts.

The De Grandy Court was also unanimous in rejecting the holding of the special three-judge lower court that, wherever racial bloc voting exists, the Voting Rights Act mandates creation of as many majority-minority districts as possible. This noxious doctrine of "maximization" of black and Hispanic voting power at all costs had often been invoked not only by liberal civil-rights lawyers and minority politicians seeking safe seats, but also by opportunistic Republicans seeking to concentrate black voters (who tend to vote Democratic) into a relatively small number of black-majority districts.

Souter was able to get justices ranging from Rehnquist to Blackmun (as well as Stevens O’Connor, and Ginsburg) to sign his opinion because all agreed that minority voters cannot generally claim vote dilution when the districting plan creates majority-minority districts "roughly proportional to the minority voters’ respective shares in the voting-age population." Souter cautioned that in some circumstances such proportionality, by itself, would be neither necessary nor sufficient to satisfy the Voting Rights Act. But his opinion is so laden with approving references to proportionality that states and lower courts may be tempted to infer that relentlessly race-based districting up to the point of proportionality is the safest course.

This would be a mistake. As Souter’s opinion also warns, a "race-conscious calculus" tends to "promote and perpetuate efforts to devise majority-minority districts even in circumstances where they might not be necessary to achieve political and electoral opportunity." Souter also stresses, rightly, that "minority voters are not immune from the obligation to pull, haul, and trade to find a common political ground [with members of other groups], the virtue of which is not to be slighted in applying a statute meant to hasten the waning of racism in American politics."

And Shaw (in which Souter dissented) stands for the salutary principle that excessive use of race-based districting raises concerns of constitutional dimension. O’Connor’s seeming fixation in Shaw on the snake-like shape of one North Carolina congressional district is best seen as reflecting a more general constitutional presumption that states cannot make race the overriding criterion in redistricting, to the point of ignoring traditional standards like compactness, contiguity, and respect for political subdivisions.

Here’s hoping that in the next big voting-rights case, Breyer will team up with Souter and perhaps others to reconcile the constitutional holding of Shaw with the Court’s seemingly disconnected interpretations of the Voting Rights Act, and to devise a coherent blueprint for creating majority-minority districts when-and only when-they are clearly necessary to remedy very substantial vote dilution.

The post Blazing a Trail Out of the Voting-Rights Brawl appeared first on Stuart Taylor, Jr..