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Supreme Court Erodes Key Provision in the Voting Rights Act
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In a 5-4 decision, the U.S. Supreme Court ruled that a key provision of the Voting Rights Act (VRA) can only be invoked to create districts when a minority group makes up a numerical majority of the voting population in a legislative district. In doing so, the court narrowed the scope of an important civil rights law and may exacerbate the problem of racially polarized voting.
The decision struck down a redistricting plan by the North Carolina legislature that included a district, where as recently as 1991, most of the voting age population was black, but by 2003 that number had shrunk to 39 percent. In an effort to comply with Section 2 of the VRA, North Carolina’s General Assembly created a district called District 18 out of portions of four neighboring counties. Section 2 helps ensure that minority voters have an opportunity “to elect representatives of their choice” by outlawing the kind of racial gerrymandering that was a fact of life in the Jim Crow South.
Much of the racially polarized voting still evident in the South and other parts of the nation are the result of years of intentionally drawing up districts with the intention of diluting the voting power of minorities.. Section 2, on the other hand, puts the onus on state legislatures to draw districts that whenever possible, contain a high percentage of minorities provided that it’s in a geographically compact area with some degree of cohesiveness in voting behavior.
Pender County commissioners in North Carolina sued the state on the grounds that the plan violated the so-called Whole County Provision in the Tar Heel state’s Constitution, which permits creating districts only from whole counties.
States have considerable freedom in deciding on how to comply with the VRA, including invoking Section 2 to create what are called crossover districts. In crossover districts, minority voters are not quite the majority but make up the plurality of voters and by forming a coalition with whites manage to elect candidates of their choice. Political scientists and civil rights advocates see the emergence of crossover districts as part of the fulfillment of the promise of the VRA since it requires a multiracial majority of voters to elect candidates.
But a majority on the U.S. Supreme Court concluded that only districts where 50 percent or more of the voters are black are entitled to protection under the anti-dilution provision of the Voting Rights Act. “Section 2 does not impose on those who draw election districts a duty to give minority voters the most potential, or the best potential, to elect a candidate by attracting crossover voters,” said Justice Kennedy in the majority opinion of the court. For Kennedy, anything short of the 50 percent rule “would place courts in the untenable position of predicting many political variables and tying them to race-based assumptions” which “even experienced polling analysts and political experts could not assess with certainty, particularly over the long term.”
Critics worry Justice Anthony Kennedy’s hard and fast formulation is much too rigid and could lead to even more racially polarized voting behavior, which the VRA was designed in part to counteract. In his dissenting opinion, Justice David Souter noted “if states are forced to pack more racial minorities into majority-minority districts, the VRA will be used to “promote racial blocs” by unnecessarily packing even more racial minorities into minority-majority districts, and thereby spurring or intensifying patterns of racially polarized voting.
Justice Souter claimed “crossover is thus superior to a majority-minority district precisely because it requires polarized factions to break out of the mold and form coalitions that discourage racial divisions.”By not allowing states to invoke Section 2 to create cross over districts it may even diminish minority voting power or, as Souter put it, threaten to “vindicate the goals of” the VRA.
In a separate opinion, Justice Ruth Ginsberg noted “decision returns the ball to Congress’ court?” for clarity on how the federal civil rights law should be applied and interpreted.
Since numerous legislative districts nationwide containing certain racial minorities that outnumber other racial groups but do not comprise an outright majority, the ruling will surely complicate redistricting efforts in 2010.
For those wondering why with a black man is in the White House and another one as chairman of the Republican National Committee does the U.S. still need the VRA, consider the fact that out of 435 seats in the House of Representatives African Americans hold 42 of them and only 1 out of the 100 in the U.S. Senate. Also, the U.S. has had only about a handful of black governors ever.There are only about 21 Members of Congress that are of Hispanic descent, only 2 in the U.S. Senate, and only one Hispanic governor. Without the VRA those numbers would be far more modest, which does not bode well for a nation undergoing transformational demographic changes.
With another VRA case on Section 5 – arguably the heart and soul of the law since it bans a variety of discriminatory practices in the election process – to be decided this term by the Supreme Court, weary civil rights advocates perhaps took some solace in Justice Kennedy’s concession regarding the realities of race in America.
“Still, racial discrimination and racially polarized voting are not ancient history. Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions,” Justice Kennedy observed in his majority opinion.
That admission, though it was decidedly absent from Kennedy’s reasoning in the case, was at least more enlightened than Justice Clarence Thomas’s dissent. The lone black Supreme Court Justice called the entire VRA “a disastrous misadventure in judicial policy making.”
Sadly, the legacy of poll taxes, whites-only primaries and literacy tests is ancient history even for those who lived through it. Perhaps the law is a victim of its own success.
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