Magazine | April 2, 2012, Issue

The Demise of Section 5

A now-irrelevant provision of the Voting Rights Act may soon be no more

Minority-voting-rights activists are all aflutter over the possibility that the Supreme Court will soon hold an important section of the 1965 Voting Rights Act unconstitutional — or at least in need of drastic modification. Section 5 is the provision whose life may be on the line. It gives federal authorities the power to veto proposed new methods of voting in what are called “covered jurisdictions” — almost all of them in the South — if they see them as racially suspect. That constitutionally extraordinary power may not survive a new round of close judicial scrutiny — although the Court’s view of Section 5 may end up being quite irrelevant to the long-run fate of the provision.

When a districting map, newly drawn after a decennial census, does not meet with federal approval (and is thus not “precleared”), state legislators must start again and draw lines that increase the odds that minority voters will have the ability to elect the candidates of their choice. Courts have described the revised, racially gerrymandered districts as resembling a “Rorschach ink-blot test” or a “bug splattered on a windshield.” Justice Sandra Day O’Connor, among others, has labeled them “segregated.” Their race-conscious contours are designed to separate whites from blacks or Hispanics in an effort to protect minority candidates from white competition in contests for legislative office. The result is that seats are reserved for minority officeholders: De facto racial quotas are created on legislative bodies, on the assumption that only black and Hispanic legislators can authentically speak for minority interests.

Although Hispanics as well as blacks are covered by Section 5, ensuring a political voice for blacks has always been the main concern. Yet what the ACLU has called “max-black” districting is possible only if black voters remain residentially concentrated enough to allow the creation of constituencies in which blacks are a majority. If a significant number of black families escape inner-city Chicago, for example, and move to suburban Oak Park, it’s no longer so easy to draw lines that promise minority voters a safe seat for the candidates of their choice, assumed to be almost always black or Hispanic. And in fact, neither blacks nor Hispanics are staying put. Their residential mobility and resulting residential integration — which civil-rights groups would normally applaud — is a problem for voting-rights activists.

In 1960, just 15.2 percent of blacks lived in a suburb, while today — strikingly — a majority of blacks (51 percent) who live in the 100 largest metropolitan areas reside in the suburbs rather than the central city. Over the 1990s, the total number of blacks declined in eight of the 25 cities with the largest black populations, and between 2000 and 2010, black flight occurred in 16 of the 25.

As minority families continue to move up into the middle class and from city to suburb, district lines have wandered to chase these mobile residents and maintain safe black legislative constituencies. Thus Representative David Scott of Georgia has been elected from a district created by stringing together pockets of black population and other Democratic strongholds from Atlanta suburbs, and Representative Sheila Jackson Lee of Texas is the beneficiary of contorted lines drawn to encompass Houston and outlying suburbs into which blacks and Hispanics have moved.

Not only have blacks moved to the suburbs in very large numbers, most have settled in places that were already racially mixed. Their neighbors now include large numbers of people who entered the United States in the wake of the major liberalization of immigration law in 1965. Moreover, the shift from a biracial to a multiracial society has occurred in the South as well as elsewhere (though more in Virginia, North Carolina, Georgia, Florida, and Texas than in Louisiana or Mississippi). With this much mixing at the neighborhood level, it will be extraordinarily hard to piece together constituencies in which one group is a decisive majority. More black incumbents or aspiring black politicians will find themselves in districts in which black voters are a plurality at best. Coalitions may form in these districts, but the districts are not likely to be precleared as ones “able to elect” black candidates.

Majority-black districts will also become increasingly hard to create because the black share of the total minority population is sharply declining. When the Voting Rights Act was passed, we were a biracial society: Almost everyone was either black or white. Today, with massive waves of immigration from Asia and Latin America, we are a multiracial nation, with the Hispanic share of the population up to 16 percent and continuing to grow rapidly.

#page#Since the early 1980s, the Justice Department and the courts have insisted on majority-minority districts to ensure that blacks and Hispanics carry sufficient weight at the ballot box to elect the representatives of their choice. But the demand assumes that blacks and Latinos combined constitute a “community” whose members share a racial and political agenda. Without question, members of these minority groups tend to vote for Democrats, and in this sense they are politically cohesive. But both social class and cultural differences divide blacks from Hispanics, and divide each group internally — a fact only rarely acknowledged in the enforcement of the Voting Rights Act. Latinos come to America from a diversity of settings; migrants from Puerto Rico and those from Ecuador, for example, bring very different cultures to their new homeland.

And the notion of a “black community” as the foundation of a black legislative district is also becoming an anachronism. The migration of blacks from Africa and the Caribbean has brought to America blacks who have little in common with the descendants of American slaves. Class differences within the black community are surely no secret. Stanford law professor Richard Thompson Ford has described them vividly: “Today there are, effectively, at least two black communities: an increasingly prosperous and well-educated professional class, and an increasingly isolated, poorly socialized, and demoralized underclass. . . . [They are] increasingly divided by lifestyle, values, norms of behavior, and life prospects.” Districting lines that rest on the assumption that blacks form a cohesive community ignore contemporary reality.

Black legislators attempting to choose their constituents in the map-drawing process understand social-class differences. Litigation in the early 1990s over congressional districts in Texas makes this clear. At the time, Eddie Bernice Johnson was a state legislator with the power to design a congressional district from which she would be sure to be elected to the U.S. House. She searched, she testified, for “performing” black voters. She did not, for instance, want neighborhoods where felons, who could not vote, were concentrated. Because renters were too residentially mobile to depend on, she wanted homeowners. A seemingly safe black district wasn’t safe if too few of its residents were eligible and reliable voters.

Today a number of constitutional challenges to Section 5 are working their way towards the Supreme Court. Every jurisdiction seeking relief from “preclearance” is making roughly the same argument: The Voting Rights Act was absolutely essential in ending the brutal regime of racial subjugation in the South, but it has become a period piece — anti-discrimination legislation passed at a time when southern blacks were kept from the polls by violence, intimidation, and fraudulent literacy tests.

Those disfranchising devices are as unlikely to return as segregated water fountains. In 1963, Martin Luther King Jr. described Mississippi as “sweltering with the heat of injustice, sweltering with the heat of oppression.” Today, over 900 blacks hold public office in that state alone. In contemplating the fate of Section 5, the Court will certainly look at evidence of racial change — which is hard to miss, unless you were a member of Congress in the summer of 2006, when the latest extension of the preclearance provision was adopted with scarcely a dissenting vote. The House Judiciary report of that year found that “discrimination [in voting] today is more subtle than the visible methods used in 1965” — but “the effect and results are the same.”

It’s hard to believe that five members of the Supreme Court will embrace that ludicrous assertion as a ground for keeping Section 5 alive. In fact, there are few good arguments for continuing to keep nine states and scattered counties from New York to California under, in effect, federal receivership. Most southern states today have higher black-voter-registration rates than those outside the region. And a funny thing happened in November 2008: The impossible was proven possible when a black man became the leader of the free world.

Chief Justice Roberts in a 2006 voting-rights decision revealed his impatience with “divvying us up by race,” calling race-driven districting to ensure safe minority legislative seats a “sordid business.” The chief justice was surely not alone on the Court in this sentiment, and his statement sent waves of panic, yet to subside, through the community of minority-voting-rights activists.

Yet how much difference will it actually make if the Court declares that Section 5’s time is up? Section 5 is a dead man walking, or will become one long before its expiration date in 2031. Whatever the Court says in response to current suits about Section 5’s constitutionality, unstoppable demographic change is likely to make majority-black districts increasingly hard to draw. And, at a certain point, minorities — having lost their sheltered status — will learn to “pull, haul, and trade to find common political ground, the virtue of which is not to be slighted in applying a statute meant to hasten the waning of racism in American politics,” as Justice David Souter wrote for the Court in 1994. At that point, blacks and Hispanics will truly be on the road to the racial equality they have been seeking with the “sordid business” of racially gerrymandered district maps.

– Abigail Thernstrom’s most recent book is Voting Rights & Wrongs (2003). She is the vice chairman of the U.S. Commission on Civil Rights and an adjunct scholar at the American Enterprise Institute. This article is drawn in part from one that will appear in the Summer 2012 issue of the Stanford Law & Policy Review.

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