The Demise of Section 5
A now-irrelevant provision of the Voting Rights Act may soon be no more


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.

April 2, 2012    |     Volume LXIV, No. 6

  • Mitt Romney, the Mormons, and those who hate them.
  • Claims that the GOP is fighting a war on women’ can be made to backfire.
  • It is far from unthinkable that we will have one.
  • Some thoughts on a slippery word and concept.
Books, Arts & Manners
The Long View  .  .  .  .  .  .  .  .  
Athwart  .  .  .  .  .  .  .  .  
Poetry  .  .  .  .  .  .  .  .  
Happy Warrior  .  .  .  .  .  .  .  .