A "Post-Racial" Assault on Voting Rights

As a presidential candidate trying to rescue his candidacy from the fires of the Jeremiah Wright scandal, Barack Obama delivered a widely praised speech on race. He acknowledged criticism that his candidacy was "based solely on the desire of wide-eyed liberals to purchase racial reconciliation on the cheap." Immediately after Obama won the election, Shelby Steele argued in a column for the Los Angeles Times that whites didn't "want change from Obama as much as they want documentation of change that has already occurred. They want him in the White House first of all as evidence, certification and recognition."

But conservatives also use Obama's election as "documentation" of the end of racism, most recently in an attempt to roll back long-standing protections for minority voters. In a closely watched Supreme Court case, the constitutionality of Section 5 of the Voting Rights Act -- which forces constituencies with a history of discriminating against minority voters to "pre-clear" their election-law changes with the Department of Justice -- is at risk. The Department of Justice rejects the changes if they find the changes have the purpose or effect of discriminating against minority voters. The plaintiff, a small municipal utility district in Austin, Texas, argues in its filing that, in part because of Obama's election, Section 5 presents an "illegitimate" intrusion on states' rights. In other words, it is unfair to assume that states and localities with a history of discriminating against minority voters will continue to do so, because, after all, we have a black president.

Brian Robinson, a spokesperson for Rep. Lynn Westmoreland of Georgia, who opposed the renewal of the Voting Rights Act in 2006, says Section 5 should be overturned, arguing that it assumes the covered jurisdictions are racist. "It's based on this ridiculous idea that America stopped moving in 1968," Robinson says. "It's absurd to suggest that Georgia, with numerous statewide elected black officials, with a vibrant black caucus in the state Senate, is the same state that it was back then." The Voting Rights Act contains a bailout provision, which allows states to get out of pre-clearance by showing a record of good behavior, but Robinson says it's too difficult for poorer counties to meet the standard.

Gerry Hebert, a former acting chief of the Voting Rights Section of the Justice Department, has represented the 17 jurisdictions, all in Virginia, that have managed to bail out of Section 5. "On average it costs about $5,000 to bail out," Hebert says. "A lot of counties just think it's too onerous, so they don't ever pursue it."

But not all Republicans agree that Section 5 is irrelevant. Rep. Jim Sensenbrenner of Wisconsin, who chaired the House Judiciary Committee in 2006 when the Voting Rights Act was renewed, does not believe the statute tars Southern states as racist. During the hearings, Congress compiled an enormous record of testimony -- 12,000 pages -- that Sensenbrenner says proved the continuing need for Section 5.

"The record showed actions have been taken by state legislatures and local governing bodies that were clearly invidious discrimination," Sensenbrenner says. "Those that were complaining the loudest about Section 5 were the ones that continued to do discriminatory actions," he adds, pointing out that Georgia and Texas are among the worst offenders. The municipal district filing suit has never had changes rejected under preclearance. Several of the states covered by Section 5, including Mississippi, Louisiana, and North Carolina, filed an amicus brief in support of the government's position.

Since 1982, the Department of Justice has objected to more than 700 voting changes that were seen as discriminatory, and in fact, fewer objections were made between 1964 and 1982 than afterward. That said, we've moved a long way from the days of poll taxes and grandfather clauses; racial discrimination in voting, as Congress found in 2006, "continues to persist and evolve." The changes made to voting laws that discriminate against minority voters are usually small and subtle enough not to merit national attention. They include the reduction of elected bodies to exclude likely black seats, the addition of at-large seats in order to dilute recently secured black representation, last-minute changes to polling place locations or voting times, or even cancelling elections in order to preempt the possibility of blacks gaining office. Voting-rights advocates argue that Section 5 also has a deterrent effect, meaning that states avoid making changes that might discriminate because they know they'd be rejected.

"The fact that jurisdictions know their laws are subject to pre-approval puts many jurisdictions in the position of soliciting minority input, engaging the minority community in ways they might not," says Kristen Clarke of the NAACP Legal Defense Fund. The 2006 report from the House Judiciary Committee noted that the National Committee on the Voting Rights Act found that Section 5 had a "significant deterrent effect." During oral arguments, Chief Justice John G. Roberts rejected this rationale, saying, "It's the elephant whistle. You know, I have this whistle to keep away the elephants. You know, well, that's silly. Well, there are no elephants, so it must work."

Racially polarized voting remains endemic in the South, meaning that minority voters could easily be subject to partisan manipulation of voting laws. (Whether disenfranchisement of minority voter occurs as a consequence of racism or partisanship is ultimately irrelevant.) Last October, the Justice Department intervened in Texas after Waller County attempted to prevent students at a local black college from registering to vote locally. The repeal of Section 5, voting-rights advocates say, would allow this kind of racial discrimination to continue unchallenged.

During the oral arguments before the Supreme Court, however, ongoing discrimination against minority voters took a backseat to the question of whether Section 5 discriminates against the South as a region. Gregory Coleman, arguing on behalf of the Northwest Austin Municipal District, said the evidence did "not justify a presumption that state and local officials in these areas are so racist that they cannot be relied on to pass and enforce fair voting laws." The subsequent discussion was then framed by Coleman's statement. Rather than being an evaluation of the ongoing need for voting protections, the case seemed to become a referendum on whether or not Southerners are still racist.

"Is it your position that today Southerners are more likely to discriminate than northerners?" Chief Justice Roberts asked the NAACP Legal Defense Fund's Debo Adegbile, who was arguing in favor of the government's position. Both Adegbile and Deputy Solicitor General Neal Katyal were repeatedly put in this position -- whenever they cited the empirical evidence for ongoing discrimination, the conservative jurists on the court demanded to know whether they were casting aspersions on the South.

Likewise, when Katyal argued that arbitrary time limits on when discrimination will end shouldn't be set, Roberts demanded, "So your answer is that Congress can impose this disparate treatment forever because of the history in the South?" But the attitude of the likely majority was summed up by Justice Anthony Kennedy, who compared the bailout provision to the labors Hercules had to perform in order to redeem himself. "It's like Eurystheus keeps telling Hercules, 'Oh, you did a good job, but now you've got another -- got another thing to do,'" Kennedy said.

Shelby Steele mocked Obama for offering absolution to whites for America's racist past, but it is conservatives, including those on the high court, who have come to claim the prize: They will be pleased with nothing less than an erosion of the civil-rights protections that made Obama's rise to office possible. While Justice Kennedy acknowledged that "democracy was a shambles" when the Voting Rights Act was first passed, the general feeling of the court seemed to be that white folks have finally overcome the problem in 2009.

A recent Pew Study highlighted the significant advances that have been made since the Voting Rights Act was first past: In the 2008 presidential election, nonwhite voters made up nearly a quarter of the electorate, with black women being the most politically active demographic. Much of the surge in black votes came from the South. The disparity in participation levels between black and white eligible voters was nearly erased. Supporters of Section 5 argue that the law made this possible, and express concern that those gains might not be repeated if the law is overturned.

Gerry Hebert hopes that in the end, Kennedy, the usual Court swing vote, will "feel the weight of history" and uphold Section 5. "The struggle to gain the equal opportunity to vote has been an enormous one," he says. "People have died in that struggle. Blood has been shed in that struggle. It really is not ancient history."

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