Dispatch June 2009

On Voting Rights, the Court Finds Consensus

Behind the Act that helped elect Obama

The Supreme Court today voted on narrow grounds to uphold the Voting Rights Act, a law that for decades has helped ensure African-American access to the ballot, and has come to represent rare bipartisan consensus on a race-related issue. It also was responsible for helping Barack Obama win the White House. Today’s 8-1 decision sidestepped the most contentious question of whether or not the Act is constitutional. In doing so, the conservative majority – which in a 5-4 March ruling circumscribed the act – temporarily fulfilled Chief Justice John Roberts’ pledge to find consensus and defer to precedent.

Also see:

Supreme Court Upholds, But Narrows Voting Rights Act

The Supreme Court upheld Section 5 of Voting Rights Act, but says that it raises "serious constitutional questions." By Marc Ambinder

Voting Rights for Our Time

Today's ruling was a decisive 8-1. But where will the Supreme Court go from here? By Matthew Cooper

Today’s decision, though narrow, is in fact an important moment for the court and in the history of civil rights and the Voting Rights Act. By not taking this opportunity to overturn the Act’s key section, Roberts’ conservative majority defied court-watchers’ expectations, and highlighted just how successful the Act has been since its original passage. It also shows the extent to which a political, judicial, and institutional consensus has emerged in support of its continued existence.

The Act, passed in 1965 and expanded in 1975 to include “language minorities,” was first reauthorized by Congress in 1970, a second time in 1975, and again in 1982. That year committees on Capitol Hill held 27 days of testimony about voter discrimination and minority representation. In the end, both Republicans and Democrats concluded that there remained considerable “manipulation of registration procedures and the electoral process” in certain states and jurisdictions, and that this had effectively excluded African-Americans and Hispanics not only from achieving equal access to the voting booth but also from fair representation in state and federal government. “Minority voting strength,” Congress declared, had been “dilute[d].”

Under the leadership of Republican Senator Bob Dole, Congress rewrote Section 2 to forbid any political process in which a “totality of circumstances” showed that the electoral process had produced a discriminatory result. In other words, if an electoral process could be shown to have systematically disadvantaged a minority group – whether racism was the intent or not—then that process could be challenged in court. Congress also reauthorized Section 5, mandating that certain states and localities receive permission, or “pre-clearance,” from a federal court or the justice department before making any changes to its election procedures. The Senate then voted 85 to 8 in favor of renewal for 25 years, and large bipartisan majorities in the House also approved the re-authorization. The 1982 action established that African-Americans and other minority groups must have access to the ballot, and declared that fair representation in local, state and federal government was a rightthat had not yet been achieved. 

In his book The Two Reconstructions: The Struggle for Black Enfranchisement, political scientist Richard Valelly has shown that the 1982 reauthorization and the Court's subsequent rulings upholding Section 5’s oversight of election procedures had a staggering effect on black voting and black political representation. In Alabama, Georgia, Mississippi and Virginia, while the percentage of the black electorate remained unchanged between 1984 and 1993, the number of local black elected officials substantially increased. In Alabama, for example, the number of African-American officeholders rose from 241 to 605; in Georgia, it climbed from 250 to 459; in Mississippi—from 296 to 546, and in Virginia, it went from 86 to 125.

A mini-revolution in the percentage of black representatives in southern state governments was also underway. Legal challenges to districting plans denying minority candidates equal access to the political process led to the establishment of smaller districts more favorable to minority candidates. In 1980, Mississippi had one black representative in its state lower chamber; by 1993 – nine years after Congress had voted to reauthorize Section 5 – the state had 15 black representatives. In subjecting devices such as discriminatory at-large elections and multi-member legislative districts to judicial oversight, the 1982 reauthorization ultimately touched off a cycle: More African-Americans won state legislative office, and they in turn exerted greater influence on the congressional re-districting process—paving the way for the establishment of an expanded Congressional Black Caucus in the U.S. House. In 1990, when state legislatures in the South reapportioned districts according to new census data, 13 new black representatives won election to Congress, bringing the number of African Americans serving in the House to an all-time high of 38. Thus the 1982 reauthorization helped to level the playing field not just for black voting but also for black office-holding.  

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