As I noted a week ago, the Supreme Court has taken up a case from Texas that could undermine or overturn Section 5 of the Voting Rights Act of 1965. Section 5 is the provision that requires Justice Department “preclearance” of changing in voting procedures or districts to ensure that they do not dilute minority voting influence, mostly for jurisdictions in the South. The VRA was extended by Congress with few changes in 2006, by an overwhelming bipartisan vote, despite some preliminary conservative rumbling about major revisions, particularly with respect to the preclearance requirement.
Adam Serwer of The American Prospect explains in a recent article that comments by Justices Roberts, Alito and Kennedy during oral arguments in the present case raise some pretty strong suspicions that the Court could mess with Section 5, on the familiar grounds that the preclearance requirement is obsolete in its treatment of the South:
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.
This “so’s your old man” argument that white southerners are no more racist than their yankee brethren has always been at the heart of southern conservative complaints about the VRA. Indeed, once they stopped opposing the VRA in its entirety, their next stop was to demand expansion of the preclearance requirement to the entire country. And as Serwer notes, this construction of distinctive racial problems in the South as being ancient history–and of concern about it being a sort of latter-day bloody flag–may have been reinforced by the general conservative argument that Barack Obama’s election as president means that the civil rights movement has achieved its purposes and needs to go away.
In a good, brief legal analysis of the oral arguments over the Section 5 challenge, Elizabeth Wydra of the Constitutional Accountability Center (which filed an amicus brief in the case) expresses alarm over the extent to which conservative members of the Court feel entitlement to second-guess the fact-finding power of Congress to determine that voting rights discrimination in the South justifies a continuation of the preclearance requirement:
Whether Congress could have written a different or even better Voting Rights Act in 2006—making pre-clearance voluntary for the entire nation (as suggested by Justice Scalia) or extending pre-clearance requirements to jurisdictions not previously covered (as Justices Alito and Kennedy seemed to find intriguing)—is thus the wrong inquiry. Here, Congress held 21 hearings, interviewed more than 90 witnesses, amassed a 15,000 page record, and found that jurisdictions required to pre-clear had engaged in thousands of discriminatory electoral practices between 1982 and 2006. This evidence is more than sufficient to support Congress’ extension of the Voting Rights Act under the standard of deference required by the Constitution.
No matter what the Supremes do in this case, there’s no question that in the court of public opinion there are plenty of white folks north and south who’d like to put all these messy racial questions behind us once and for all. As a white southerner who has spent a lot of time outside that region, I understand the resentment many feel about the hypocrisy involved in attributing racially discriminatory motives to us crackers exclusively (though there are VRA remedies other than preclearance for challenging voting rights violations outside the South).
But southerners do have to face their own history honestly, and get over the resentment. When will it be appropriate to stop presuming that voting rights violations might be especially prevalent in the former Confederate States? I’d say that fine day will arrive when there’s no longer a large cohort of living Americans who can remember being denied the right to vote altogether, along with the right to attend integrated schools or sit alongside white folks in restaurants or movies theaters or buses. That was a lot more humiliating than the current indignity of having to run voting changes through some lawyers at the Justice Department.
