More Racial Gerrymanders

Beware of bipartisan legislation to extend a provision of the Voting Rights Act. The measure has little to do with voting rights.

When conservative Republicans such as House Speaker Dennis Hastert and Senate Majority Leader Bill Frist jointly sponsor Voting Rights Act amendments with such liberal Democrats as Rep. John Conyers and Sen. Edward Kennedy, be suspicious.

They are steamrollering through Congress bipartisan legislation to renew for the next 25 years a much-misunderstood, largely anachronistic provision (Section 5) of the Voting Rights Act, including amendments that are driven by racial-identity politics and that would aggravate ideological polarization.

The amendments would turn back the clock on racial progress by requiring even more racial gerrymandering of election districts than under current law. And the extension of Section 5, as currently drafted, would perpetuate an extraordinarily punitive oversight regime that gives to federal political appointees and not-exactly-apolitical bureaucrats at the Justice Department unreviewable power to dictate state and local election rules in nine (mostly Southern) states and some other jurisdictions.

Why would broad bipartisan majorities of House and Senate incumbents want to do that? To help themselves win re-election, for starters. More specifically, Democrats are pandering to the demands of black and Hispanic politicians for safe seats and to the ideological obsessions of the civil-rights lobby, which still sees America as so steeped in racism that whites just won't vote for minority candidates.

Never mind that Douglas Wilder, an African-American, was elected governor of Virginia in 1989; Bill Richardson, a Hispanic, was elected governor of New Mexico in 2002; Colin Powell might well have been elected president of the United States had he run in 1996; nine of the 34 Georgia officials elected statewide are black; and so on, and so on.

As for the Republicans, they are terrified of being characterized as racists if they oppose anything that carries the "voting-rights" label. Such demagoguing works because most Americans don't understand that this legislation is not mainly about the basic right to cast a meaningful ballot—which is secure—but about mandating safe seats for incumbents and other minority politicians.

Second, many Republicans also believe—perhaps incorrectly—that drawing so-called "majority-minority" urban districts for black and Hispanic Democrats will "bleach" the surrounding suburban districts and thus help Republicans beat white, moderate Democrats there. That was the result of the racial gerrymanders of the 1990s: The number of (very liberal) black and Hispanic Democrats in the House went up; the number of (more moderate) white Democrats went down—and this helped Republicans take and keep control of the House. This was good for black and Hispanic politicians. It was not so good for black and Hispanic voters.

But Republicans who think that they will benefit by renewing their alliance of convenience with the civil-rights lobby may be in for a surprise, as explained below.

In any event, the pending legislation "will ensure heavily packed minority congressional districts that stifle competition, ideologically polarize elections, and insulate Republican representatives from minorities and minority representatives from Republicans," as Edward Blum, a scholar at the American Enterprise Institute, said in congressional testimony.

Bad as this is for the body politic, writes Roger Clegg of the Center for Equal Opportunity, it is good for incumbent politicians: "Both parties, especially Republicans, are politically happy with segregated districts and uncompetitive contests."

While Blum and Clegg are conservatives, leading liberal scholars have also raised concerns about the wisdom and the constitutionality of major aspects of the pending legislation to extend and amend Section 5, and have called for reducing the Justice Department's power to dictate state and local voting rules.

"It is far from clear that the injustices that justified Section 5 in 1965 can justify its unqualified re-enactment today," said professor Samuel Issacharoff, a leading liberal expert on election law at New York University Law School, in Senate testimony on May 9. He also noted that federal Section 5 interventions in statewide redistricting have been "rife with accusations of partisan motivation." And he questioned whether "minority voters are well served by being packed in increasingly concentrated minority districts."

The Voting Rights Act's permanent provisions protect against the vestiges of discrimination in voting that no doubt remain, especially in scattered localities where old-fashioned racism remains strong. Section 2, for example, supports court challenges to dilution of minority voting power.

Section 5, on the other hand, was adopted in 1965 as a temporary measure to prevent evasion by the state and local governments with the worst histories of suppressing the black vote. They must obtain Justice Department "preclearance" of redistricting plans and of even the smallest change in voting rules.

But so effective have other Voting Rights Act provisions been that little evidence exists that most governments in the nine covered states are more hostile to minority voters than are governments that the law doesn't cover. Indeed, there is little evidence of systematic discrimination by any state government, despite a huge research effort by the civil-rights lobby to find and magnify such evidence.

Not only are the terms of the proposed re-enactment unduly strong medicine for what discrimination in voting rules remains; enforcement of Section 5 has actually aggravated racial gerrymandering and has sometimes been partisan.

The Justice Department earned a rebuke from the Supreme Court in 1995 for insisting that Georgia, among other states, adopt a racial gerrymander of its congressional districts so extreme as to violate the Constitution's equal protection clause. The George H.W. Bush Justice Department, in its alliance of convenience with the civil-rights lobby, had pushed for such racial gerrymanders. But Republicans should beware what the next Democratic president's Justice Department might do, especially with some of the pending amendments.

One would overrule a 2003 Supreme Court decision to bar states from replacing any of their existing majority-minority districts—safe seats for black or Hispanic politicians—with districts that are more racially integrated. This despite strong evidence that more-integrated districts would be better both for minority voters and for attaining what Rep. John Lewis, D-Ga., a civil-rights icon, once called the goal of a community "where we would be able to forget about race and color, and see people as people, as human beings, just as citizens."

Justice Sandra Day O'Connor quoted Lewis's words in her majority opinion in the 2003 ruling Georgia v. Ashcroft. She added that a central purpose of the Voting Rights Act was "to foster our transformation to a society that is no longer fixated on race." Accordingly, she held that a state may, if it chooses, reduce the number of majority-minority districts in order to increase overall minority voting power by creating larger numbers of more-integrated "influence districts." Those are districts controlled by coalitions of minority and white Democrats.

Influence districts also tend to be more competitive and to choose candidates who are more moderate than the extreme liberals who tend to dominate majority-minority districts and the extreme conservatives who tend to dominate "bleached" suburban districts.

But now Congress is poised to require more segregated districts, and thus to enhance both our fixation on race and our ideological polarization. John Lewis—who has sadly let party loyalty and solidarity with racialist allies trump his nobler principles—is a co-sponsor.

Other pending amendments to Section 5 would effectively overrule two other Supreme Court decisions, in 1997 and 2000, by allowing Justice Department officials to veto any change in voting rules that they subjectively label unfair to minorities, even if the change leaves minority voters no worse off than before. This would make it especially easy for Justice Department officials to devise pretexts for grinding partisan axes.

Which brings us back to why House Republicans may be in for a surprise if they hope to reap the same political gains that they did in the 1990s from helping the civil-rights lobby create majority-minority districts.

Once Democrats win the presidency, they will have the motive, the means, and the opportunity to stick it to Republicans by manipulating the Justice Department's enlarged power over state and local voting rules in the nine covered states—all of them red. And Democrats have become more adept since the 1990s at creating fairly safe seats for black and Hispanic Democrats without making the adjacent suburban districts safe for Republicans.

So by casting aside their supposed color-blind principles in pursuit of political self-preservation, among other sins, Republicans may be paving the way for their own return to permanent minority status, at least in the House.

This they richly deserve, for many a reason. I wish that I could be confident that a Democratic majority will be better.