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Wednesday, April 29, 2009

The Supreme Court and Voting Rights: Deja Vu?

Today, the Supreme Court will hear a case challenging a key aspect of the 1965 Voting Rights Act--Section 5. Section 5 is generally thought of as the section that gives the Act some teeth—it gives the federal government the tools necessary to enforce the spirit of the Act. Among other things, the section requires states with a history of racial discrimination to “pre-clear” any voting policy changes with the U.S. Justice Department. Section 5 claims involve everything from the location of polling places within a congressional district, to the redrawing of congressional district lines, in order to prevent racial gerrymandering the Supreme Court has said is unconstitutional.

Now, let’s put aside that fact that, depending on who the president is at any given time, getting changes pre-cleared is not always as difficult as it sounds. For example, under George W. Bush, Mississippi probably could have tried to reinstate literacy tests and the poll tax and Bush’s Justice Department surely would have pre-cleared it. In fact, that essentially what they did by pre-clearing new Voter ID requirements that added an extra financial burden to voter registration. But let’s put that aside for now.

And let’s also put aside the fact that while there has been a boom in Black elected officials since the 1965 Voting Rights Act, progress on racial disparities in poverty, employment, housing, health and other areas has been inconsistent at best. And in some areas, such as the criminal justice system, disparities have actually gotten worse. But let’s put that aside for now.

If we put aside the long-term benefits that we expect to come from voting, and just focus on the objective reality of using the vote, it’s clear that the Voting Rights Act has been one of the most effective pieces of legislation ever. That success is largely due to Section 5, but if you listen to the nine states that are subject to the pre-clearance requirements, they’ll tell you that they are now a more kinder, gentler South—a “new” South if you will—and that pre-clearance is no longer necessary. A conservative leaning Supreme Court may find their argument convincing.

Perhaps you’re thinking that this will be the case where Clarence Thomas finally decides to protect the kinds of rights that allowed him to become only the second Black person to serve on the Supreme Court. Don’t hold your breath. A few weeks ago, at an awards banquet with high school students, Thomas seemed to minimize the Bill of Rights when he made the following remarks:

It seems to me that more and more people are celebrated for their litany of grievances about this or that… Shouldn’t there at least be equal time for our bill of obligations and our bill of responsibilities?

As you reflect on Clarence’s remarks consider this. Inside the Supreme Court, directly above where the Justice’s sit, is a mural that includes an image symbolizing the Bill of Rights. The image was included because evidently someone felt that the Bill of Rights was central to the work of the Court. Apparently, Clarence never got that memo.

More importantly, Thomas and the other conservatives on the Court have already shown their thinking on these matters. In addition to approving Voter ID laws, just a few weeks ago the Court narrowed the circumstances where a majority Black district could be protected during redistricting. The decision could have a major impact during the next round of redistricting in 2010.

It’s been said that those who cannot remember the past are condemned to repeat it. So perhaps we shouldn’t be too critical of the Court. Perhaps they’re just playing their part in a historical cycle that’s beyond their control. Let us not forget that after the Civil War, the United States went through a period of Reconstruction, a period that saw the passage of civil rights laws and the election of Black Senators and at least one Governor. As an unfinished Reconstruction came to an end, one of the critical factors was a Supreme Court that eliminated the legislative gains that had been made.

More than 100 years later, the country experienced a Civil Rights Movement that some referred to as the second Reconstruction. In recent years that movement has led to the elections of Black Senators, a Black Governor and yes, even a Black President. And here we are, right back at the Supreme Court.

While the question of whether the Supreme Court will eliminate Section 5 is important, perhaps there are some deeper questions we need to ask. For example, if the 15th Amendment guarantees the right to vote, why is Section 5, and the rest of the Voting Rights Act, even needed at all. Seems to me that if we can answer that question—really answer that question--and then deal with the answer, we may stop being condemned to repeat the past.

On that “note”, i’m outta here!


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