A sheltered status for minorities is of course what all affirmative-action policies provide — not just in voting, but in contracting and employment and education, too.
For the most part, the Supreme Court has signed onto that understanding of the Voting Rights Act, in particular. For a while, in a few cases, it flirted with abandoning its commitment to what the ACLU had called “max-black” districting, but the limits to its willingness to do so were apparent in a 2006 decision involving Texas congressional redistricting.
That same year, on the assumption that today’s more “subtle” forms of white racism required ever more aggressive countermeasures, Congress revised a crucial provision in the statute to ramp up the race-conscious legal standards that were built into the law beginning in the 1970s. Given a chance to recognize an altered racial climate by changing the statutory language, it took a pass and instead made sure DOJ would unequivocally insist on race-driven districting maps, overturning court decisions that would have limited DOJ’s power to insist on racial gerrymandering.
Thus, the Voting Rights Act has, in fact, become a statute whose key provisions are used to protect only minority voters. Indeed, only once has any provision of it been used to suggest otherwise — and only in a lower court. The act and its enforcement have become suffused with race consciousness.
With the New Black Panther Party case, there is now another new element. The racial double standards that run through redistricting decisions have now been extended to a voter-intimidation case. But that only makes a larger point: When statutes, judicial decisions, and a bureaucracy are all steeped in a race-conscious culture, inevitably that culture comes to govern decision making in new race-related areas. It is a metastasizing cancer.
If the Holder Justice Department came to believe — as some black politicians and many voting-rights scholars on both the Left and the Right do — that America has changed and race-conscious strategies built into voting-rights law have become an anachronistic holdover from a bygone era, it can make its views clear. We strongly doubt it will do so, however, given the ideological background of the people who have been appointed to run the department and the division.
Congress, too, could step up to the plate. In an important 2009 decision, Chief Justice John Roberts strongly hinted on behalf of the court that it was time to revise the statute. But congressional action is unlikely. How many politicians will cheerfully risk being accused of turning the racial clock back — of racism, in effect?
And so we are left with the hope that the Supreme Court will finally reject the unequal protection that has long been built into voting-rights law. Two cases challenging the constitutionality of a key element in the statute have recently been filed, and down the road the Justice Department may be forced to treat white and minority voters equally.
Oh, there is one more hope: Elections have consequences, and politicians will listen to voters if they speak loudly enough. Most Americans are appalled not only by the notion of unequal enforcement of voter-intimidation cases, but by the whole politically correct edifice of affirmative action and racial preferences that has been constructed over the years. It should never have been built, and, surely, it is long past time to begin tearing it down.
— Abigail Thernstrom is the author, most recently, of Voting Rights — and Wrongs: The Elusive Quest for Racially Fair Elections. She is an adjunct scholar at the American Enterprise Institute and vice chair of the U.S. Commission on Civil Rights. Roger Clegg is president and general counsel at the Center for Equal Opportunity in Washington, D.C.