Politics & Policy

An Insulting Provision

Congress is set to renew an outdated and unnecessary Voting Rights Act restriction that applies only to certain states.

Just when you thought Republicans in Congress couldn’t dump on conservative principles any more than they already have, along comes the next show stopper. Judiciary Committee leaders in both chambers will introduce legislation today to reauthorize the expiring penalty provisions of the 1965 Voting Rights Act (VRA). Not happy with the revulsion resulting from last year’s Bridge to Nowhere, the heirs of Ronald Reagan are poised to renew until 2031 a bill that will fortify racial gerrymandering throughout the nation. 

On August 6, 2007, after more than 40 years of going hat-in-hand to the federal government for permission to change any voting practice, the Deep South states along with Texas, Arizona, and Alaska are scheduled to be dropped from Section 5 of the Voting Rights Act. This section–also know as the “preclearance” provision–requires nine states in their entirety and parts of seven others to get permission from the U.S. Attorney General or the D.C. federal courts before changes can be made in voting procedures–for example, before a polling place can be moved or a redistricting plan implemented. When the VRA was passed in 1965, this provision made sense–after all, the Jim Crow South had perfected ways of keeping blacks from the polls. Preclearance ended that. Nevertheless, Congress recognized that Section 5’s penalty provision was an unusual intrusion into areas constitutionally reserved for the states, and so it designed the provision to expire after five years. It’s still in effect today, however, after congressional extensions in 1970, 1975, and 1982.

Unlike Section 5, the most important provisions of the Voting Rights Act are permanent, such as the ban on literacy tests and grandfather clauses. Once these barriers were eliminated in the South, black voter-registration soared. Today, blacks and Hispanics are full and equal participants in the electoral process in the states covered by section 5. In fact, recent studies conducted for the American Enterprise Institute indicate that the electoral position of African-Americans and Hispanics is better in covered states like Georgia and Texas, than in non-covered ones like Arkansas, Wisconsin, and Tennessee. The old roadblocks to minority voting in Section 5 states are gone. Forever.

Yet, apart from a few courageous members of Congress, the Republican congressional leadership, cheered on by the Bush Administration, is hell-bent on keeping this system in place. Why? Two reasons: First, Republicans don’t want to be branded as hostile to minorities, especially just months from an election. After all, every American knows how important the VRA was in securing voting rights for Southern blacks. And even though only Section 5 is up for reauthorization, Democrats will claim Republicans want to “turn back the clock” if they voice any doubts. Who wants to rebut that charge?

The second reason is that Republicans as well as Democrats have grown to love the racial gerrymandering Section 5 promotes. Since Republicans control the redistricting process in most of the states covered by Section 5 (in fact, every whole state covered was as red as can be in 2004), during the next round of redistricting GOP state legislators will argue that Section 5 requires them to draw ultra-safe, minority-packed congressional districts. This bug-splat-like racial gerrymandering has the effect of bleaching the surrounding districts of reliable Democratic voters, creating numerous safe Republican districts. What greater distain for the bedrock principle of colorblind equal rights can there be? Congressmen are supposed to represent individuals in a geographically-defined community of interest–not of skin color or ancestry. To make matters worse, these segregated racial homelands have been encouraged by judges who have made a complete mess of the Voting Rights Act case law.

Over the last few years, the Supreme Court has tried to clear up some of the confusion it previously created over how states must draw districts in order to comply with Section 5. One case in particular, Georgia v. Ashcroft, gave state legislatures more leeway in unpacking minorities from ultra-safe minority districts. The Court noted in a 5-4 decision that minorities’ interests may be better served if they aren’t stuffed into one district, creating a majority of minorities, but instead spread into surrounding districts where they may have greater influence in election contests. The conservatives on the court–Justices Rehnquist, Scalia, Thomas, and Kennedy–joined the majority opinion written by Justice O’Connor by noting that “the Voting Rights Act, as properly interpreted, should encourage the transition to a society where race no longer matters.”

So what does the Republican Congress plan to do with this valuable legal doctrine? Well, they plan to overturn it by making compliance with Section 5 dependent upon the election of minority-preferred candidates. This will ensure heavily packed minority congressional districts that stifle competition, ideologically polarize elections, and insulate Republican representatives from minorities and minority representatives from Republicans.

In the end, Section 5 is not only unjust in that it singles out some states and ignores others when there is no longer any reason to do so; it is also unfair to voters–especially minority voters–because it promotes racial gerrymandering and racial segregation, which is just the opposite of the original goals of the Voting Rights Act.

President Bush has said he supports reauthorization of Section 5 and looks forward to working with Congress on it. Really, Mr. President, how can you support legislation that keeps Texas in the penalty box, but not neighboring New Mexico, Oklahoma, or Arkansas? Do you trust these other states to treat minority voters fairly, but not Texas? The same needs to be asked of every senator and congressman from the eight other Section 5 states.

Maybe a trip to the woodshed this November is the only thing that will get Republicans back on track. Like the saying goes, no matter how cynical you get in Washington, it’s impossible to keep up.

Edward Blum is a visiting fellow at the American Enterprise Institute and is the author of a forthcoming book on the Voting Rights Act from AEI Press.

Edward Blum, a visiting fellow at the American Enterprise Institute, is the president of the Project on Fair Representation.


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