When the Supreme Court hears arguments this Wednesday (April 29) in a case challenging one of the key components of the federal Voting Rights Act, it will be doing so amid a political landscape that is far less openly hostile to Blacks than when the law was first enacted 44 years ago. But the court should not infer from this that the landmark legislation is no longer needed. On the contrary, many of the political gains that our so-called “racial, ethnic and language minorities” now enjoy are directly attributable to the vigorous application of the law. The success of the law therefore argues in favor of its retention, rather than any retreat from its enforcement.
At issue is the “pre-clearance” provision of the Act, which requires that before making any changes to current electoral procedures, states and other jurisdictions with a history of practices that restrict minority voting rights must first obtain permission from the Justice Department or federal court. In adopting the requirement – commonly known as Section 5 – Congress sought to remedy a history of discriminatory electoral practices targeting Blacks in direct violation of the 15th Amendment. (Such practices included an assortment of restrictive voting requirements, literacy tests, poll taxes, intimidation and often, outright violence). As President Lyndon Johnson remarked in 1965 upon signing the bill into law:
“This act flows from a clear and simple wrong. Its only purpose is to right that wrong. Millions of Americans are denied the right to vote because of their color. This law will ensure them the right to vote. The wrong is one which no American, in his heart, can justify. The right is one which no American, true to our principles, can deny.”
The pre-clearance requirement applies to nine states – Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia – and to various counties and towns in seven others. In New York, three of the five boroughs are covered by the provision. Since its initial enactment, the law has been extended four times – most recently in 2006 for a 25-year period.
The legal architect of this latest challenge to the law is Gregory S. Coleman, a former Texas solicitor general who brought the suit on behalf of the Northwest Austin Municipal Utility District No. 1 – a tiny utilities district in Austin that is covered by the law. As The Washington Post reports, Coleman is a politically active lawyer who once clerked for Justice Clarence Thomas and testified before Congress in opposition to extending the Voting Rights Act in 2006. He recruited the utilities district for a test case after Congress enacted its latest extension.
Not surprisingly, the election last fall of Barack Obama to the presidency features prominently in Coleman’s brief to the court:
“The America that has elected Barack Obama as its first African American president is far different than when Section 5 was first enacted in 1965,” he wrote. “There is no warrant for continuing to presume that jurisdictions first identified four decades ago as needing extraordinary federal oversight through Section 5 remain uniformly incapable or unwilling to fulfill their obligations to faithfully protect the voting rights of all citizens in those parts of the country.”
I put that argument last January to Laughlin McDonald, director of the Voting Rights Project of the American Civil Liberties Union, and he was having none of it. Here’s part of his response from the Wednesday, January 14, 2009 edition of Talkback:
“The Supreme Court and an appellate court can indeed take judicial notice of recent elections, but there are a lot of cases out there which say that the mere election of a minority to office is not enough to defeat a Section 5 claim. The courts have said that the relevant standard under the Voting Rights Act is whether a system usually diminishes the ability of minorities to elect candidates of their choice. So I don’t think the mere fact that Barack Obama was elected would be dispositive. In addition, you only have to look at the actual results to see that six of the states that are covered in whole or in part by Section 5 did not go for Obama – they went for McCain. In those jurisdictions we do not see the abnegation of history, racial attitudes and the persistent pattern of racial block voting; it still exists.”
According to McDonald’s analysis, the white vote for Obama in several of the covered states actually declined in 2008 compared to that for the white Democratic candidate John Kerry four years earlier. For example, Kerry got 19 percent of the white vote in Alabama in 2004, while Obama got just 10 percent in 2008. In Louisiana, Kerry got 24 percent of the white vote in 2004, while Obama got only 14 percent in 2008. In Mississippi, Kerry got 14 percent of the white vote, and Obama 11 percent.
And regarding the idea that this latest reauthorization of the Voting Rights Act was based on decades-old evidence, McDonald was equally dismissive, noting that Congress extended Section 5 after holding more than 20 public hearings and examining a record that exceeded 15,000 pages. Legislators noted the hundreds of Section 5 objections that had occurred since the last extension in 1982, as well as the hundreds of lawsuits that successfully challenged racially discriminatory voting practices during the same period. The 2006 extension of the Act was passed by an overwhelming majority of the House (390-33) and by a unanimous vote of the Senate. (The ACLU, which is among several civil rights organizations that have intervened in the case, discusses the legislative record at considerable length in its brief to the court).
While it is true that African American voters — as well as other racial, ethnic and language minorities – are no longer hamstrung by some of the more overt restrictions and exclusionary electoral machinations of the past, that does not mean that the lessons of the past are no longer instructive in our present circumstances. In his book, Stealing Democracy: The New Politics of Voter Suppression, George Washington University law professor Spencer Overton likens our vast and complex electoral system to a “matrix” that requires continuous attention “so that it more fairly empowers all voters rather than simply privileging the insiders who know how to manipulate it.” As he explains:
“Contrary to conventional perception, American democracy is not an organic, grassroots phenomenon that mirrors society’s preferences. In reality, the will of the people is channeled by a predetermined matrix of thousands of election regulations and practices that most people accept as natural: the location of election-district boundaries, voter-registration deadlines, and the number of voting machines at a busy polling place. This structure of election rules, practices and decisions filters out certain citizens from voting and organizes the electorate. There is no ‘right’ to vote outside of the terms, conditions, hurdles and boundaries set by the matrix.”
That’s why we need a robust Voting Rights Act as much now as we ever did: to safeguard the rights and secure the interests of those who history has shown to be the likeliest targets for marginalization by the matrix.
Posted by talktohugh 
...and another thing 