The heart of the Voting Rights Act is its famous Section 5, which essentially put the South on perpetual probation. In rough terms, the law requires the states of the old Confederacy (as well as a few smaller areas outside the South) to submit any changes in their electoral law to the Justice Department for what’s known as “pre-clearance”—to make sure that the changes don’t infringe on minority voting rights. Before Section 5, states and municipalities could simply change their rules—about everything from the location of polling places to the borders of district lines—and dare civil-rights activists to sue to stop them. It was a maddening, and very high-stakes, game of whack-a-mole. As a result of Section 5, though, the Justice Department monitored these moves and made sure there would be no backsliding on voting rights.
In 1965, Congress authorized Section 5 for five years. In subsequent years, Congress has extended the provision several times, and in 2006, it was reauthorized for another twenty-five years. In 2009, the Supreme Court ducked a challenge to the law on procedural grounds, but now the issue cannot be evaded any longer. Last week, a three-judge panel of the United States Court of Appeals for the D.C. Circuit voted two-to-one to uphold the Voting Rights Act and reject a challenge to Section 5 by Shelby County, in Alabama. Next stop for the case: the Supreme Court.
The questions at the heart of the case are both simple and profound. How much has American society, and especially the South, changed with regard to race relations since 1965? Is Section 5 still a necessary check on the white majority—or is the law a patronizing relic of a vanished age? Judge David Tatel, writing for the majority, said Congress still had the right to insist that the Justice Department continue to monitor voting rights in the South.
Tatel’s opinion acknowledged the obvious: that a great deal had changed for the better in the South, and elsewhere, since 1965. He said further that the evidence of continuing discrimination was “by no means unambiguous.” Still, while the days of Bull Connor are long gone, Tatel said that Congress still had reason to keep Section 5 in place when it held the reauthorization vote in 2006. “Vote dilution” remained a big problem for black citizens; that is, white legislators were still “ ‘packing’ minorities into a single district, spreading minority voters thinly among several districts, annexing predominately white suburbs, and so on.” Certain facts, too, were unavoidable, notably that “not one African American had yet been elected to statewide office in Mississippi, Louisiana, or South Carolina.” In short, Tatel concluded that “serious and widespread intentional discrimination persisted in covered jurisdictions and that case-by-case enforcement alone … would leave minority citizens with an inadequate remedy.” Without Section 5, Tatel concluded, the rights of minority voters would be in jeopardy.
The dissent of Judge Stephen Williams came down to a simple idea: times have changed. Even the Justice Department, he pointed out, scarcely ever objects to the changes submitted for preclearance. (There were only five objections for every ten thousand submissions between 1998 and 2002.) Williams acknowledges that racial bias still exists, but he noted, with some justification, that it’s now as evident in uncovered jurisdictions (i.e., the rest of the country) as in the South. But that melancholy observation led Williams to conclude that the Voting Rights Act should not apply anywhere anymore.
It’s a hard case. “Things have changed in the South,” Chief Justice John G. Roberts, Jr., wrote in the 2009 opinion that put off the Voting Rights Act’s day of reckoning. “Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” All true, to be sure. One might also add that the President of the United States, who won office with the Electoral College votes of Virginia and North Carolina, is African-American. In this way, the United States of 2012 is an almost unrecognizable version of the country in 1965.
But as those changes illustrate, nothing about the nation is static, and it’s not easy to say which way the country is moving on racial matters. By overwhelming majorities, both Houses of Congress thought it was worthwhile to maintain the federal monitoring that has made such changes took place. It’s a more complicated country these days, but it’s not a fully healed one, either. So far, the Roberts Court has been eager to portray the nation as beyond the need for racial remedies—especially with regard to public schools. In light of that record, the odds are that the Court will reach the same kind of conclusion with regard to the Voting Rights Act and declare Section 5 unconstitutional. At that point, the white-controlled legislatures of the former Confederacy will be largely on their own in protecting minority voting rights. For better or worse, our problems are solved when the Court says they are—and these Justices appear determined indeed to close the door to an era that may not be completely over.
Original Article
Source: new yorker
Author: Jeffrey Toobin
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