August 6 marks the 40th anniversary of the Voting Rights Act, and several provisions of the law are up for reauthorization in 2007. In a recent address to the NAACP’s annual convention, House Judiciary Committee chairman James Sensenbrenner (R., Wisc.) endorsed an across-the-board reauthorization. He shouldn’t have. While much of the act should stay in place, there are five major problems with it as currently written and interpreted.
First of all, it is bad to define “discrimination” in terms of results (i.e., whether racial proportionality is achieved) rather than in terms of intent (i.e., whether an action is taken because of race). The Voting Rights Act used to mean the latter, but in 1982 was amended to include the former as well.
As a result, a state that adopts a neutral rule, without discriminatory animus, and applies it evenhandedly can still be in violation of the Voting Rights Act if the Justice Department or a federal judge finds that the rule “results” in one race being better off than another and there is not a strong enough state interest in the rule.
For instance, suppose that a state decides that it wants to allow voter registration over the Internet, in addition to other ways of registering. There is nothing about race in the new procedure, no evidence that it was adopted with an eye toward helping one race more than another, and no evidence that it is being implemented in a discriminatory way. But suppose that more whites, proportionately, use the procedure than blacks. The state is therefore vulnerable to a claim that its new procedure “results” in racial discrimination in violation of the Voting Rights Act.
So, the act should be changed back to its pre-1982 language, to require a showing of actual racial discrimination–that people are being treated differently because of race.
Second, the Voting Rights Act now requires–or, more accurately, has been interpreted to require–the maintenance and even the creation of racially defined districts. This is a bad thing. One would think that our civil-rights laws would be designed to end discrimination, with the happy byproduct of facilitating integration. Instead, the Voting Rights Act encourages racial gerrymandering, which is both discriminatory and leads to segregation.
Ironically, the Supreme Court made clear in a series of decisions in the 1990s that the Constitution itself does not allow racial gerrymandering, meaning the creation of districts to serve racial constituencies. (Where race is used as a means to achieve politically gerrymandered districts, the Court has been more forgiving; in other words, it is one thing when the state figures that blacks are likely to vote Democratic and therefore zigs and zags to take this political fact of life into account–assuming that race is the best proxy for voting behavior available–but something else if the zigging and zagging is to create a black-controlled district for the very reason that the state wants a black-controlled district.) Yet much of the jurisprudence of the Voting Rights Act now requires exactly that kind of gerrymandering. Under Section 2 of the act, majority-minority districts must be drawn if the three-part test set out by the Supreme Court’s 1986 decision in Thornburg v. Gingles is met, absent unusual circumstances; under Section 5, if a majority-minority district existed once, it–or some similar racial “edge”–must be preserved in perpetuity.
So, the law should be amended to make clear that there is no requirement that districts be drawn with the racial bottom line in mind–and, indeed, that such racial gerrymandering is in fact illegal.
Third, the Voting Rights Act as interpreted by the courts literally denies the equal protection of the law–that is, it provides legal guarantees to some racial groups that it denies to others. A minority group may be entitled to have a racially gerrymandered district, or be protected against racial gerrymandering that favors other groups; at the same time, other groups are not entitled to gerrymander, and indeed may lack protection against gerrymandering that hurts them. No racial group should be guaranteed safe districts or influence districts or some combination thereof unless other groups are given the same guarantee–and it is impossible to do so (and it is, in any event, a bad idea to encourage such racial obsession).
So, the act should be amended to make clear that it guarantees nothing for one racial group that it does not guarantee for all racial groups.
Fourth, in many circumstances the Voting Rights Act currently requires that ballots be made available in languages other than English–an odd provision, since the ability to speak English is generally required for naturalized citizens, and citizenship is generally required for voters. The provision does, however, remove another incentive for being fluent in English, which is the last thing the government should be doing. This provision in the act should be removed.
Finally, the whole mechanism requiring some jurisdictions to ask, “Mother, may I?” of the federal government before making any change in voting practices and procedures needs to be rethought. We should not continue to have such a “pre-clearance” mechanism at all, and in any event surely the current law–which singles out parts of the South and a just few districts elsewhere, notably in New York City and California–is out of date. This mechanism was considered “emergency” legislation when it was passed 40 years ago: Does it really make sense now to have a different law for Texas versus Arkansas, or Maryland versus Virginia, or New Mexico versus Arizona? This provision of the act needs to be removed or, at least, rewritten, so that troublesome districts are more fairly identified.
Celebrate the Voting Rights Act—but not without updating it for the 21st century.
–Roger Clegg is general counsel of the Center for Equal Opportunity in Sterling, Va.