Jeffrey Toobin

Voter, Beware
by Jeffrey Toobin March 2, 2009
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Keywords
Voting Rights Act;

Supreme Court;

Civil Rights;

Northwest Austin Municipal Utility District No. 1 v. Holder;

Justice Department;
(Pres.) Barack Obama;

Nathaniel Persily
The Voting Rights Act, whic passed in 1965, stands as on of the great monuments to civi rights in American history. Th Fifteenth Amendment, ratified i 1870, purported to give American the right to vote regardless of “race color, or previous condition o servitude,” but it was not until century later, with the passage o the act, that the right was enforced and Southern blacks were finall free to cast a ballot. Over the years an ideologically diverse group o Supreme Court Justices ha reviewed and approved th constitutionality of the act man times. But, in a case to be argue before the Court this spring, th current conservative majority has chance to undo this signa achievement of America democracy
Section 5 of the act, which is at issue in Northwest Austin Municipal Utility District No. 1 v. Holder, is what gave the legislation teeth. That provision singles out by name those states and counties with especially notorious histories of discriminating against African-Americans, through such mechanisms as literacy tests, character tests, and poll taxes. The law not only eradicated these obstacles; it went a crucial step further. It decreed that if the “covered jurisdictions” wanted to change their voting procedures in any way—from redrawing district lines in the state legislature to moving the location of a solitary polling place—they first had to obtain permission from the Justice Department. (Congress reauthorized the Voting Rights Act in 1970, 1975, 1982, and 2006, and in the process expanded its coverage to include several Western states with histories of discriminating against Hispanic and Native American voters.) The process of review by the Justice Department, which is known as “preclearance,” has been remarkably effective.
And that is the point of the lawsuit. Some of the jurisdictions covered by Section 5 now want to be released from this form of federal receivership. As the lower court in the case put it, the plaintiffs argue that the preclearance provision should be found unconstitutional “because Congress ‘irrationally and incongruously’ chose to continue imposing ‘disproportionate’ burdens and a ‘badge of shame’ on covered jurisdictions on the basis of an ‘ancient formula’ and ‘conditions that existed thirty or more years ago but have long since been remedied.’ ” What is the proof? The plaintiffs stated it in the first line of their brief: “The America that has elected Barack Obama as its first African-American president is far different than when Section Five was first enacted in 1965.”
To paraphrase the President: Yes it is. The formula for determining which jurisdictions are covered is largely based on election results from 1964, a time that is nearly a half century, and a world, away from our own. Almost all of Virginia and much of North Carolina are covered jurisdictions under Section 5, and Obama won both states. Moreover, the Justice Department has for some time been approving ninety-nine per cent of the electoral changes submitted by covered jurisdictions. As Representative Lynn Westmoreland, a Georgia Republican, put it in arguing against the most recent reauthorization of the law, “Congress is declaring from on high that states with voting problems forty years ago can simply never be forgiven—that Georgians must eternally wear the scarlet letter because of the actions of their grandparents and great-grandparents. We have repented and we have reformed, and now, as Fannie Lou Hamer famously said, ‘I’m sick and tired of being sick and tired.’ ” There is something unseemly, to say the least, about conservatives who have opposed the Voting Rights Act now toasting its success, particularly as that success is incomplete.

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Barack Obama won the Presidency, but voting patterns in the Deep South suggest that race remains a major factor in American political life. As part of a brief in the Northwest Austin case, Professor Nathaniel Persily, of Columbia Law School, shows how poorly Obama did with white Democrats in those states. According to Persily’s analysis of the 2008 returns, Obama received forty-seven per cent of the white vote in states that are not covered under Section 5 but won only twenty-six per cent of the white vote in covered states. “Barack Obama actually did worse among whites than John Kerry in several of the covered jurisdictions, despite the nationwide Democratic swing,” Persily writes. Race seems like the best explanation for this difference. The fact that other African-American candidates have failed so often and for so long with white voters in the South indicates that no one should be in a hurry to declare the United States a “post-racial” society.
What recent electoral history shows is that voting requires broader, not narrower, protection. In many parts of the country, the voting rights of poor and minority citizens are treated with not so benign neglect. In the 2000 election, African-American voters in Florida suffered disproportionately from that state’s shoddy practices, such as inadequately maintained registration lists and inferior technology; in 2004, many minority voters in Ohio endured long lines waiting for balky, and too few, voting machines. Across the nation, laws that remove the franchise from those with criminal convictions hit minorities especially hard. More directly, the Republican Party has made an institutional commitment to eradicate the nonexistent problem of voter fraud by imposing identification requirements that are obviously aimed at limiting the numbers of voters from demographic groups that favor Democrats. But neither Florida nor Ohio is a covered jurisdiction under Section 5, and the act is not written to address new techniques of suppression. Three years ago, Congress ducked the problem by simply reauthorizing the old law and giving it a fatuous new name, the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006. For the legislators, this was heroism by association, not heroism in fact.
Viewing Obama’s election as an opportunity to tidy up the nation’s historical accounts is tempting but ultimately wrong. Yet even if the Court’s conservatives succeed in taking out Section 5 they cannot reverse the course of a changed and changing nation. In the Court’s great affirmative-action case of 2003, in which it upheld racial preference in admissions at the University of Michigan Law School, Justice Sandra Day O’Connor’s opinion suggested that by 2028 such measures should no longer be necessary. The Voting Rights Act expires in 2031. Thanks in part to the election of Barack Obama, it is now plausible to believe that the day will come when the act, too, will no longer be necessary. ♦