As the Supreme Court this week heard arguments over the Voting Rights Act in Shelby County v Holder, Adam Serwer sets the scene:
Under Section 5 [of the Act], parts of the country with histories of discriminatory election practices have to ask for permission—or “preclearance,” in legal terms—from the Justice Department before making any changes to their voting rules. But [according to Bert Rein, the attorney leading the challenge to the Act,] the South, where most of the covered jurisdictions are, has changed, [and] the law, although once justified, is now unfair and unconstitutional. The five conservative justices on the Supreme Court seemed to agree. “The Marshall Plan was very good too,” argued Justice Anthony Kennedy, “but times change.” … Scalia called Section 5 the “perpetuation of a racial entitlement” that legislators would never have the courage to overturn. “In the House there are practically black districts by law now,” Scalia complained.
Scalia is an asshole, but what Kennedy is saying is not outrageous.
I have to say I am not one of those who thinks that this kind of federal oversight, essential once, must necessarily be essential for ever. And I cannot quite grasp the logic of liberals’ insistence that the bigotry of 1964 is no less a danger today. It’s obviously a much less bigoted society with respect to race than then – in part because of the very Act that liberals are rightly proud of (and that more Republicans as a proportion of their numbers voted for than Democrats). I do think there’s a day in which such supervision may not be necessary as a matter of principle and disagree with Rachel Maddow’s views expressed on last night’s Daily Show that oppression is for ever and that government control of oppression must also be for ever. Societies change. It’s crazy to take no notice of this, and wherever possible the government, in my view, should be race neutral.
But when that change has occurred seems to me to be best left to the legislature – and I thought that was the core conservative position. When last revisited, the Voting Rights Act was passed overwhelmingly. Since when were conservatives the ones asking the courts to strike down laws almost unanimously supported by the representatives of the people?
Serwer argues that SCOTUS shouldn’t even be hearing the case, because jurisdictions can in fact bail out of Section 5 provided they maintain a long-standing record of not having proposed discriminatory voting changes – something Shelby County, Alabama has not done. Jamelle Bouie’s jaw drops at the implication from Scalia and others that racism is a thing of the past. Below he responds to Roberts having asked if it was “the government’s submission that the citizens in the South are more racist than the citizens in the North?”
The answer is a qualified yes. Here is the conclusion of a 2005 study from political scientists Nicholas A. Valentino and David O. Sears:
General Social Survey and National Election Studies data from the 1970s to the present indicate that whites residing in the old Confederacy continue to display more racial antagonism and ideological conservatism than non-Southern whites. Racial conservatism has become linked more closely to presidential voting and party identification over time in the white South, while its impact has remained constant elsewhere.
But Abigail Thernstrom outlines arguments and evidence showing that black voting is vibrant in the Southern state in question:
In Alabama, the number of blacks in the state legislature is proportionate to the black population, Rein replied. There is also very high black registration and turn-out. The point could have been put more strongly. For many years, those political participation rates have not been especially low in the Deep South. The disparity between black and white registration rates, the Chief Justice pointed out, is greatest in Massachusetts, with Mississippi, where (remarkably) the black registration rate is higher than that for whites, having the third-best rate in the country.
In addition, blacks in the covered jurisdictions have had greater success in winning public office than outside the Deep South “But think about this State that you’re representing, it’s about a quarter black, but Alabama has no black statewide elected officials,” Justice Elena Kagan argued. In reply, Rein might have pointed a finger at the Voting Rights Act.
The insistence on race-conscious districting to maximize the number of safe black legislative seats — built into the enforcement of the Voting Rights Act — is a brake on minority political aspirations. In majority-black districts, minority candidates tend to consolidate the black vote by making the sort of overt racial appeals that are the staple of invidious identity politics. Very few have any experience building biracial coalitions; they do not acquire the skills to venture into the world of competitive politics in statewide majority-white settings. As a result, max-black districts (the ACLU’s term) seem to have worked to keep most black legislators clustered together and on the sidelines of American political life – precisely the opposite of what the statute intended.
(Photo: Activists hold a pro-voting rights placards outside of the US Supreme Court on February 27, 2013 in Washington, DC as the Court prepares to hear Shelby County vs Holder. The case centers around a key section of the 1965 Voting Rights Act which mandates federal approval for any proposed voting changes in nine states. By Mandel Ngan/AFP/Getty Images)
The Dish 