During the “Trumping the Race Card” at the National Review Institute’s Conservative Summit this weekend, Abigail Thernstrom, vice-chair of the U. S. Commission on Civil Rights rebuked Republican senators for blanching in the face of racial demagoguery and capitulating to expediency on matters of race. In particular, Thernstrom focused on GOP complicity in failing to amend the temporary provisions of the Voting Rights Act (reauthorized with no changes whatsoever a few months ago), and perpetuating racially isolated voting districts — the natural byproduct of which is greater racial polarization, the election of political extremists, the creation of invulnerable seats for black congressmen (and GOP congressmen in adjacent districts) and a coarsening of our racial discourse. Despite the fact that numerous witnesses testified credibly as to the need for amendment to eliminate the problems with the temporary provisions, the Senate, as Thernstrom noted, voted in favor of wholesale reauthorization 98-0.
The absurdity of the Republican senators’ nonfeasance (nothing more was expected of the Democrats) is illustrated by, for example, an examination of Section 5 of the act. Section 5 requires that any changes by covered jurisdictions to voting practices or procedures must be pre-cleared with either the attorney general or the D.C. district court before implementation. Even such relatively minor changes such as moving a polling station from a post office to a school gym across the street must receive prior approval. The original jurisdictions subject to the preclearance requirement were Alabama, Georgia, Louisiana, Mississippi, South Carolina, Virginia and most of North Carolina. Other jurisdictions such as Texas, Arizona and Alaska were added by amendment a few years after the act’s passage in 1965.
Section 5 was enacted to prevent jurisdictions that had been disenfranchising blacks from employing any devices to continue such disenfranchisement. Even at the time of its passage Section 5 was considered to be an extraordinary emergency intrusion into a state’s prerogatives regarding the conduct of elections. The temporary provisions were necessary, however, because of the massive resistance in the deep south to voting rights for blacks. The resistance spawned not only rampant violence, but all manner of schemes and chicanery to perpetuate black disenfranchisement.
Witnesses at the reauthorization hearings testified that it was important, if not imperative, that Congress establish a solid evidentiary record to justify an ongoing need for the act’s temporary provisions that were due to expire this year. Without such a record, the preclearance provisions of Section 5 might be exposed to constitutional challenge. That’s because the conditions that led to passage of the act, including the temporary provisions such as Section 5, have changed radically — in significant measure due to the act itself. (Indeed, the act often is called the most successful piece of civil-rights legislation in history). These changes call into question whether Congress has a basis for exercising its enforcement authority under the Fifteenth Amendment by reauthorizing Section 5 without any modifications to reflect such changes.
There’s no question that widespread patterns of disenfranchisement on the basis of race existed in the covered jurisdictions when Section 5 was first enacted 40 years ago. But circumstances have changed. At the time of the act’s original passage black-voter registration in, e.g., Georgia was just 19 percent. In Mississippi it was 7 percent. Today, black registration in the deep south is virtually indistinguishable from that of whites, and in some cases higher.
In 1964 there was only one black state representative in the entire deep south. Now blacks in those states are more likely to have a black representative than black in non-covered states.
More than 75 percent of voters in the original seven covered states were not even born when the act was passed. There’s been tremendous migration between covered states and non-covered states during the last 40 years also. Bull Connor, Lester Maddox, and George Wallace don’t run things anymore. The people who targeted blacks for disenfranchisement two generations ago are gone.
The legislative record in support of Section 5’s reauthorization contains scant evidence of purposeful voting discrimination today. The constitutional question, then, is whether Section 5’s preclearance provisions are congruent and proportional to any disparate impact that a change in voting procedures might have on a particular population.
Sure enough, barely a week after Congress reauthorized the temporary provisions of the act, a lawsuit challenging the constitutionality of Section 5’s preclearance provisions was filed in the U.S. district court for the District of Columbia.
The complaint alleges that the voting conditions that caused plaintiff, a voting district in Texas, to be covered under Section 5 have been remedied for over 30 years. In fact the district didn’t even come into existence until long after Section 5 was enacted. The district alleges that Section 5, based on an “ancient (coverage) formula is incongruous and irrational.” The district asserts that voters in the jurisdiction are being punished for conditions that existed decades ago and for which the voters aren’t responsible.
Whether constitutional challenges to Section 5 will succeed is far from clear. The point is that Republicans cowed by racial demagoguery and tempted by the prospect of safe congressional seats reauthorized the temporary provisions of the act on a flimsy evidentiary record. In doing so, they have continued unchanged a voting regime of racial separateness. Their reward for this act of political expediency? Just 11 percent of the black vote in the November midterm.
Thernstrom is right. That’s no way to trump the race card.
— Peter Kirsanow is a member of the U.S.Commission on Civil Rights. He also is a member of the National Labor Realtions Board. These comments do not necessarily reflect the positions of either organization.