Voting Rights For Our Time

Will have more later on the Roberts Court opinion on the Voting Rights Act. I guess a few things struck me after seeing the initial ruling.

1. You had to be impressed that the Chief Justice got an 8-1 ruling on this issue. Of course, it was a narrow ruling that sidestepped the larger controversial constitutional questions surrounding Section 5 of the VRA, which requires certain jurisdictions, mostly in the South, to have any electoral changes "precleared" by the Justice Department. The idea of Section 5 was to thwart any Jim Crow attempts at electoral subterfuge--annexing more white voters to dilute black voting strength, moving polling places, whatever. No one doubted that such an extraordinary heavy federal hand made sense to undo the legacy of disfranchisement of African-American voters. But over the years, the provision has come under fire as antiquated and cumbersome although civil-rights groups reflexively support its continued enforcement. Only Clarence Thomas dissented. He wanted Section 5 tossed out entirely. Even Antonin Scalia wasn't prepared to go there yet.

2. Are we getting closer to a Voting Rights Act thaw? What do I mean by that? The VRA is one of the holiest of American statutes, endlessly venerated by all sides of the political spectrum and rightfully so since it was an essential piece of legislation--along with the Civil Rights Act of 1964--in dismantling Jim Crow. Over time, the law evolved in ways that promoted minority-majority districts where Hispanic or African-American candidates could win elections. When I came to Washington in the mid 1980s, my first job was at the U.S. Commission on Civil Rights working on these issues. There was a standoff in the agency, which is a hybrid of think tank and watch dog, over the VRA's direction. Would the creation of all of these majority-minority districts, however well intentioned, lead to a kind of political segregation with white candidates who no longer needed to reach out to minority voters and vice versa? It was no secret at the time that conservative Republicans loved what the VRA was doing--creating lots of lily-white districts that were perfect for the GOP. Those of us seeking an integrationist politics worried where all of this was heading.

The debate's over, though. The VRA is here to stay even if a provision like Section 5 eventually gets trimmed back by giving jurisdictions a means to opt out. The courts and Congress are in the business of preserving minority-majority districts and the consequences for our politics was not the resegregation many of us feared.

3. The Affirmative Action years. A decision like this only makes you wonder where the court will go on the New Haven firefiighters and other affirmative action cases. The Rehnquist years saw a trimming of affirmative action in some respects and its continued expansion in others. Are the Roberts years going to be more of the same? My guess is that, like the Voting Rights Act, affirmative action in its myriad forms is here to stay.