“There has been a transformation,” said Democratic congressman John Lewis of Georgia four years ago. “It’s a different state, it’s a different political climate, it’s a different political environment. It’s altogether a different world we live in.” Lewis was trying to explain why a congressional redistricting plan, drawn up by Democrats in Atlanta, was permissible under the Voting Rights Act. His argument, in essence, was that the Georgia of the 21st century was not the Georgia of the 1960s. “We’ve come a great distance,” he said. “It’s not just in Georgia, but in the American South I think people are preparing to lay down the burden of race.”
He was certainly right about that, especially with respect to his own state. When Congress passed the Voting Rights Act in 1965, little more than a quarter of Georgia’s black population was registered to vote, and only a handful of blacks held elective office. But today, as Lewis said, it’s an altogether different world: By the 1990s, black registration in Georgia roughly equaled white rates, and in several elections — most notably those of 2000 and 2004 — blacks have been slightly more likely than whites to show up at the polls. And black politicians have enjoyed considerable success: Four serve in Congress, 50 have seats in the state legislature, and more than 600 hold local office. Significantly, of the 34 statewide elected offices in Georgia, nine are currently held by blacks, including that of the attorney general.
So it might seem that, over the course of four decades, the Voting Rights Act has accomplished what it set out to do — and that perhaps the time has finally come to phase out some of its most drastic provisions, which were once advertised as “temporary” measures necessary for confronting a civil-rights “emergency.” As it happens, many of these are scheduled to expire next year. Yet almost nobody in Congress has shown a desire to make the act conform to modern realities. Instead, there’s a headlong rush among both Democrats and Republicans to reauthorize it for another 25 years, and to do so before this fall’s elections. As Rep. James Sensenbrenner, a Wisconsin Republican and chairman of the House Judiciary Committee, told last summer’s NAACP convention: “The Voting Rights Act must continue to exist — and exist in its current form.”
There are actually several problems with the current form of the Voting Rights Act. One of the most important is known as “preclearance,” which basically means that the Department of Justice micromanages voting rules across the South, as well as in a handful of other places (e.g., New York City). “If a little town wants to move a polling place from a Catholic church on one side of the street to a Baptist church on the other, it has to seek permission from the federal government,” says Rep. Lynn Westmoreland, a Georgia Republican who is waging a lonely fight against a rubber-stamp reauthorization. “That’s ridiculous. Parts of this law have outlived their usefulness.” That’s an extraordinarily brave thing to say — and Westmoreland gets almost nothing but grief for it. In a column for the Atlanta Journal-Constitution last year, Representative Lewis accused Westmoreland of engaging in “the politics of misinformation” and of “slinging unsubstantiated claims.”
Yet it is primarily liberals who have trafficked in false claims about the Voting Rights Act. Shortly before the 2004 elections, for instance, the NAACP branch in Tacoma, Wash., sent out a newsletter that declared: “In the year 2007 we [i.e., black Americans] could lose the Right to vote!” This is of course a stupendous misreading of what’s at stake — the right to vote for all Americans, regardless of race, is a constitutional guarantee — but it’s exactly the kind of demagoguery that tends to boost turnout. Unfortunately, the Tacoma NAACP branch’s propaganda is no isolated incident: The notion that blacks are about to lose the right to vote has become something of an urban legend. In 1998, Camille Cosby, wife of Bill, published an op-ed piece in USA Today. She wrote that in 2007 “Congress once again will decide whether African-Americans will be allowed to vote. No other Americans are subjected to this oppressive nonsense.” White House counsel Harriet Miers waded into the controversy during an online discussion a year and a half ago, when “Jeannie, from Tampa,” asked whether “the right for African Americans to vote will expire in 2007.” Miers assured her that indeed it would not, but also mentioned that “the Department of Justice has received numerous inquiries concerning [this] rumor.” DOJ actually has a page on its website dedicated to debunking this myth. So does the NAACP Legal Defense and Education Fund.
Even when these misconceptions are cleared up, reauthorization of the Voting Rights Act remains a sacred cow. Consider Jack Kemp’s testimony before the House last fall: “All who care about social justice and equal opportunity in America share one overriding goal: that Congress needs to renew the provisions of the Voting Rights Act, which are coming up for reauthorization.” That’s an amazing statement, one that essentially slanders anybody who disagrees with the political agenda of the liberal civil-rights organizations that tend to support the act most strongly. Efforts to change the law have gone nowhere, according to the American Enterprise Institute’s Edward Blum, who is, along with the Manhattan Institute’s Abigail Thernstrom and the Center for Equal Opportunity’s Roger Clegg, a leading voice of reform. The problem goes beyond the Left’s demagoguery: There’s also the Right’s political problem. For Republicans, uncritical support for the Voting Rights Act has become a way to prove the GOPs race credibility. It’s no secret that Republican congressional leaders would like to reauthorize the law before November — well ahead of next year’s August deadline — so that their colleagues may tout it on the campaign trail this fall.
As if that weren’t cynical enough, many Republicans view the Voting Rights Act as a tool of their own political ascendancy because it has led to the creation of “majority-minority districts,” especially in the South. “It broke up the monopoly of white Democrats who drew congressional districts for themselves and it led to the election of more black Democrats and more Republicans,” says Rep. Tom Feeney, a Florida Republican who supports reauthorization. “I think it was as important as the Contract with America in making 1994 possible.” (In that year, the GOP gained control of the House of Representatives for the first time in 40 years.)
It’s a simple fact that there are both more blacks and more Republicans in Congress today to some extent because these two groups have conspired to create congressional maps that ensure the election of as many black politicians as possible. Packing black voters into majority-minority districts — often through the brazen use of racial gerrymandering — has had the effect of removing an overwhelmingly loyal group of Democrats from other districts. These in turn have become more conservative, and thus have elected more Republicans. Gone are the days when moderate white Democrats from the South brokered political agreements between the Left and Right; that species is near extinction. This may be a vital but unrecognized factor in the oft-cited breakdown of civility in Washington’s political culture.
Another clearly observable effect of these “max black” districts is that most seats are safe, and almost never see competitive general elections. The Supreme Court, for its part, has frowned on some of this race-driven redistricting, but ultimately its jurisprudence on this matter is such a confusing mess that the practice is bound to continue, as will the litigation that always accompanies it.
A separate section of the Voting Rights Act that frustrates conservatives is the requirement of foreign-language ballots in jurisdictions with large populations of non-English speakers. Whereas preclearance and gerrymandering are supposed to combat a receding factor in American life (racism), the language rules are meant to benefit immigrants whose numbers are rising. The paradox here is that most immigrant voters are supposed to possess a functional level of English — it’s a requirement of naturalization (except for certain older immigrants). Demanding ballots in other languages leads to all sorts of headaches: A recent report by English First, a pro-English advocacy organization, documents everything from the high cost of this unfunded mandate to basic translation problems. At a voting site in Flushing, N.Y., for example, the Chinese ballots referred to the Republicans as Democrats and vice versa. This kind of gaffe of course leads to allegations of fraud, as well as lawsuits.
“The challenges of compliance are enormous,” says Jim Boulet, one of the report’s authors. “In Los Angeles County alone, these arcane rules must be applied to at least 5,000 individual precincts. As others have pointed out, that’s about how many Starbucks coffee shops there are in America.” The difference, of course, is that when a Starbucks customer asks for a grande latte and gets a venti cappuccino instead, he can’t make a federal case out of it. By contrast, liberal civil-rights groups send out monitors whose job is to do just that. Rep. Steve King, an Iowa Republican, hopes to reform some of this by offering amendments to the Voting Rights Act, but he knows that he faces long odds. “I’m going to go against the wishes of some in my party’s leadership,” he says. “When I look at these non-English ballots, though, it just seems like they’re meant to divide Americans and drive wedges through us.”
Despite the best efforts of conservative House members like King and Westmoreland, the most likely revisions to the Voting Rights Act will be to make it worse rather than better. There will probably be an effort to amend the law to make it even easier to redistrict based on race. And if Democrats are feeling especially confident, they may try to require states to grant voting rights to felons, who in many states are banned from the ballot box. Liberals view the enfranchisement of this group as a potential bonanza. (If felons had been allowed to vote in Florida in 2000, Al Gore probably would have been elected president.)
The problem for liberals is that they may overreach: There is the political risk of standing up for the rights of criminals, as well as the legal risk of supporting a law whose current elements may not even pass constitutional muster — not to mention any potential expansion. Why, for instance, don’t the most controversial sections of the Voting Rights Act apply to the whole country, as opposed to just the South and a few other jurisdictions? Lawmakers from the rest of the country certainly don’t want the added burden of an expanded Voting Rights Act, and their reluctance could trigger a series of legal challenges. Although several of the Supreme Court’s recent decisions on civil rights have disappointed conservatives — especially the University of Michigan case involving race preferences — the addition of Justice Sam Alito may have tipped the balance to the right. It’s possible to hope that the courts will force Congress, at long last, to do as Representative Lewis said, and “lay down the burden of race.”