SCOTUSWatch: FYI, Personal Racism Doesn’t Matter
The Voting Rights Act of 1965 (“VRA”) came under the Supreme Court’s review this term. Shelby County, Alabama sued, alleging that Sections 4 and 5 of the VRA were unconstitutional. The VRA safeguards the ability of minority groups to vote. Section 4 lists criteria that the federal government uses to determine whether a given jurisdiction should be subject to federal review of any proposed changes in their voting laws. Section 5 gives the federal government the right to oversee those jurisdictions’ changes. Today, SCOTUS struck down Section 4, but not Section 5. The entire opinion, including the dissent, is available here.
The SCOTUS decision to strike down Section 4 of the VRA is a prime example of judicial overreach, since Congress already reviews the VRA to make sure its restrictions are still warranted every 5 years. Further, the logic underlying the decision is fundamentally flawed: the decision states that the 1965 version of the Voting Rights Act has been so successful that the criteria in Sec. 4 of the VRA is now obsolete, since it dates back to 1965. As Justice Ginsburg notes in her dissent, it doesn’t make sense that a law is so successful that it is no longer necessary: “Throwing out pre-clearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” Moreover, regression is a very real threat to minority voting rights, specifically those of Black people in Southern states. Not only have the VRA-monitored jurisdictions kept trying to pass discriminatory voting laws (“…between 1982 and 2006, DOJ objections blocked over 700 voting changes based on a determination that the changes were discriminatory”), some of them actually attempted to re-enact some of the very same laws that led to them getting extra federal scrutiny in the first place: “In 1995, Mississippi sought to reenact a dual voter registration system, ‘which was initially enacted in 1892 to disenfranchise Black voters,’ and for that reason, was struck down by a federal court in 1987.” (emphasis mine).
Although there is plenty to say about this decision, one point deserves special emphasis. This decision is the logical result of the false narrative that racism = people’s personal beliefs and prejudices. The Chief Justice invoked this pernicious lie during the oral arguments in this case, when he asked the DOJ’s lawyer questions that implied that the VRA should be expanded beyond the few states that meet Sec. 4′s criteria. “Is it the government’s submission that the citizens of the South are more racist than the citizens of the North?” Chief Justice Roberts asked. Unfortunately, the government’s lawyer replied with a weak-sauce combination of “No” and “I don’t know”. As Mother Jones points out, that answer made it harder for him to argue that the VRA should be allowed to keep the criteria that made it apply to some states and not others. His answer should have been, “The VRA is directed at the South’s laws, not the opinions of Southerners.”
It simply does not matter whether people in the South harbor more personal racially based prejudice than people from other regions in this country. The North is also full of people who have these prejudices! The VRA does not apply based on how many people in a jurisdiction espouse a particular opinion. On the contrary, Sec. 4′s criteria to bring a jurisdiction under federal scrutiny is based on a given jurisdiction’s actual laws:
As enacted in 1965, the first element in the formula was whether, on November 1, 1964, the state or a political subdivision of the state maintained a “test or device” restricting the opportunity to register and vote. The Act’s definition of a “test or device” included such requirements as the applicant being able to pass a literacy test, establish that he or she had good moral character, or have another registered voter vouch for his or her qualifications.
So, the question is, how much of your state suppressed minority voters by means of an official test (or something similar) as of a given date? If the answer is past a certain threshold, your state itself and all of its political subdivisions (usually counties) are under federal scrutiny. In 1965 this covered Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia in their entirety, and Arizona and Texas were added in their entirety later. But if, for example, a third of the counties in a state suppress the minority vote overtly, but the other two-thirds don’t, then only part of the state is subject to federal oversight. The list of partially-covered states has changed since 1965, but the latest list includes parts of California, Florida, Michigan, New York, North Carolina, and South Dakota. States and counties can challenge the federal government’s application of the VRA with a “bail-out” lawsuit, in which, if they show evidence of their fair behavior towards minority voters, they can emerge from the extra oversight regime. Connecticut, Idaho, Maine, Massachusetts, and Wyoming have filed successful bail-out lawsuits in the past.
It should be clear that the VRA applies to parts of states from all over the country, so arguments that the South is being unfairly targeted are questionable from the start. The bigger problem with allegations that the South does not deserve statewide scrutiny disregards both the history of Southern state governments and of the VRA. State governments in the South were left to their own devices when the last Reconstruction-era troops were removed from the region in the 1870s. The Southern Democrats of the time reacted to the mass enfranchisement of Freedmen by building white supremacy into their governmental institutions, and Washington did nothing to prevent it until a century later. The systems themselves are built for categorical exclusion of non-whites; they are a product of the post-Civil War era and they function as they were intended. Alaska is a similar example: after the United States bought Alaska from Russia, Americans set up a state government that excluded native Alaskans from participation in any aspect of civic life. As in the South, the effects of institutions built to exclude, rather than to include, reverberate today. The South and Alaska have a history that must be addressed in order to avoid repeating this race-based exclusion indefinitely, and the VRA is the mechanism we have used since 1965 to do that.
Pretending that the VRA directly addresses personal prejudice is extremely destructive. Mis-casting systemic racism as personal prejudice is a deliberate and sustained campaign by those in power to minimize white supremacy as a personality flaw. It is impossible to solve systemic racism by piling disapproving tweets on Paula Deen (though she deserves all the derision #PaulasBestDishes can muster). The only thing that can address systemic racism is activism geared toward systemic change. That kind of activism resulted in the passage of the VRA in 1965. We need it again now, in the wake of this decision, in order to achieve the equality that many institutions were created in order to deny.