In 1965, the States could be divided into those with a recent history of voting tests and low voter registration and turnout and those without those characteristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.
Americans tend to imagine that the racial history of their nation is a steady line sloping upward; in truth, it looks more like an EKG. In that context, it’s unsurprising that a decision hobbling the Voting Rights Act could come in such close proximity to the first Presidential election in which the percentage of eligible voters who went to the polls was higher among blacks than among whites. Peaks in racial progress tend to come in concert with valleys of backlash.
Tuesday’s ruling hinged upon the idea that the V.R.A. applies current legislative power to what is essentially a problem of the past. There’s a curious logic undergirding the decision, one that suggests a kind of judicial engineering if not activism. The Court’s argument that the election and reëlection of an African-American President are evidence that the V.R.A. is no longer needed is roughly akin to arguing that declining crime rates mean we can comfortably strike down laws forbidding robbery. Minority voting turnout and registration rates “approach parity” in these places precisely because the V.R.A. serves as a deterrent to and recourse for voting discrimination. The violent subjugation of black voters in the South has all but vanished, but that overt kind of racism isn’t the best barometer of progress. Simple political interest—not raving negrophobic bigotry—has too often been enough to inspire efforts to diminish black turnout.
Reading the opinion it’s possible to forget that a grand total of three African-Americans senators and two governors have been elected in the past hundred and thirty-six years, only one of them in a Southern state. In arguing that the preclearance section of the V.R.A. was outmoded and based upon aged presumptions about Southern states, the court had to bypass not only history but contemporary reality. As Justice Sotomayor pointed out during oral arguments, Shelby County—the Alabama county that brought the challenge to the Court—had failed preclearance some two hundred and forty times. Given that Section 5 of the V.R.A. allows districts covered by its provisions to move out of coverage by consistently demonstrating that their laws have no discriminatory impact, this decision was something of an end run: places that have consistently failed the litmus tests of discrimination were, in a second, given the status of those where there’s been legitimate progress.
It’s difficult not to see a unifying thread between the arguments in the V.R.A. case and the affirmative-action case that the Court decided on Monday, one that dovetails with recent polls in which respondents said they believe that whites are now the primary victims of racial bias in the United States. The affirmative-action case, Fisher v. University of Texas at Austin, centered around a white woman who believes that she was unfairly kept out of the college of her choice so that the school could admit less qualified minorities; during oral arguments about the V.R.A. case it was hard not to walk away with the impression that the court felt Southern states—and by extension Southern white people—were being unduly judged on the basis of history and skin color. (We’re post-racism, but apparently not post-reverse racism.)
We’ve entered a new terrain where American meritocracy is a faith, not an ideal; where we must muster evidence of bias in increasingly vast volumes to warrant policies applied in ever narrowing circumstances; where nothing qualifies as what we once called racism, and commitment to this perspective is all but data-proof. The fault lines in this society are the problem that no longer has a name, or an apparent solution.
Original Article
Source: newyorker.com
Author: Jelani Cobb
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