EDITOR’S NOTE: Abigail Thernstrom, vice chair of the U.S. Commission on Civil Rights, wrote the book on the Voting Rights Act. The recently published Voting Rights — and Wrongs: The Elusive Quest for Racially Fair Elections provides the backdrop for Monday’s Supreme Court decision in Northwest Austin Municipal Utility District Number One v. Holder. (For additional coverage on the case, visit Bench Memos.) The excerpt below is adapted from the conclusion of Voting Rights — and Wrongs.
The 1965 Voting Rights Act is the crown jewel of federal civil rights laws. No one should doubt its importance in making America a very different nation from the one in which I grew up not so many years ago. While the 1964 Civil Rights Act was crucial in forcing southern whites to accept the blacks in their midst — in restaurants, hotels, theaters, places of employment, hospitals, schools, indeed, in the entire public sphere — that earlier statute had only minor and weak provisions guaranteeing the right to vote. And yet, black ballots were the levers of change that white supremacists most feared. Enfranchisement, they knew, would turn African Americans into true citizens. President Lyndon Johnson, in signing the act on August 6, called it “one of the most monumental laws in the entire history of American freedom,” while John Lewis, a young leader in the civil rights movement at the time, saw the statute as “every bit as momentous and significant . . . as the Emancipation Proclamation.”
Black ballots alone turned out not to suffice. In Mississippi and elsewhere, whites in power were prepared to alter election processes to keep blacks out of public office — hence, the race-conscious districting as a temporary measure to give blacks what Daniel Lowenstein has called “a jumpstart in electoral politics.” But Lowenstein makes a further, important point: “A jumpstart is one thing but the guy who comes and charges up your car when the battery’s dead, he doesn’t stay there trailing behind you with the cable stuck as you drive down the freeway. He lets it go.” It’s time to let race-driven districting go the way of those jumper cables. America is better off with the increase in the number of black elected officials who gained office, in large part due to the deliberate drawing of majority-minority districts. But black politics has come of age, and black politicians can protect their turf, fight for their interests, and successfully compete even for the presidency, it turns out. It’s a new world.
In today’s America, the costs of continuing to insist on race-based electoral arrangements are very high. Had congressional committees in 2006 been willing to confront honestly the question of renewing and strengthening section 5, they would have acknowledged the constitutional problems at the core of a decision to extend further the emergency provision designed as a temporary measure to force the nation to live up to its constitutional promise. Special arrangements that provide privileged protection for black and Hispanic candidates are a serious distortion of a democratic system in which ethnic groups have no collective right to representation. Methods of voting based on the notion that individual citizens are indistinguishable members of a racial group and should be grouped accordingly are also deeply constitutionally suspect. The Fourteenth Amendment stops states from denying “the equal protection of the laws” to “any person” — not to “any group.” Rights are individual in America; our liberty depends on that belief.
Congress in 2006, had it been willing to explore the status of American voting rights in the twenty-first century with some intellectual integrity, would also have acknowledged that maximizing the number of majority-minority districts impedes black progress in significant ways. The costs enumerated by Sandra Day O’Connor in Shaw cannot be empirically proved, but nevertheless seemed instinctively to have some validity. Such districts, she said, reinforce “the perception that members of the same racial group — regardless of their age, education, economic status, or the community in which they live — think alike”; they “threaten to stigmatize persons by reason of their membership in a racial group and to incite racial hostility”; they may “balkanize us into competing racial factions”; and they tell elected representatives that “their primary obligation is to represent only the members of that group, rather than their constituency as a whole.” Alex Aleinikoff and Samuel Issacharoff, it may be recalled, also argued that race-conscious districts not too surprisingly raise racial consciousness; they scream, “RACE, RACE, RACE.”
And yet, increasingly, blacks may not see themselves as defined by racial identity, some recent polling suggests. In a 2007 national poll, 37 percent disagreed with the notion that blacks can “still be thought of as a single race,” while 61 percent expressed their belief that, in recent years, “the values of middle class and poor blacks [have] become . . . more different.” Is America moving very slowly toward Harvard law professor Randall Kennedy’s ideal of “all Negroes” being “voluntary Negroes”? The luxury of racial identity is still quite new in America, and the deck is heavily stacked against such self-identification. It is hard to escape the world of boxes that demand that you check one to select your racial or ethnic group. But that is today, perhaps not tomorrow.