How the GOP Is Resegregating the South
Continued from previous page
* * *
In a recent speech about voting rights at the LBJ presidential library in Austin, Attorney General Eric Holder noted that “no fewer than five lawsuits” are challenging Section 5 of the Voting Rights Act, which he called the “keystone of our voting rights laws.” Section 5 requires that states covered by the act receive pre-clearance from the Justice Department or a three-judge District Court in Washington for any election law changes that affect minority voters.
Conservatives want to scrub this requirement. In a 2009 decision, the Supreme Court stopped short of declaring Section 5 unconstitutional but asserted that “the Act’s preclearance requirements and its coverage formula raise serious constitutional questions.” Justice Clarence Thomas, in a dissent, sought to abolish Section 5, arguing that intentional discrimination in voting “no longer exists.” But in September a US District Court judge dismissed a challenge to Section 5, writing that it “remains a ‘congruent and proportional remedy’ to the 21st century problem of voting discrimination in covered jurisdictions.” Voting rights experts expect the Supreme Court to address this issue in the coming year.
Meanwhile, just as they’re seeking to declare Section 5 unconstitutional, Republicans are also invoking the VRA as a justification for isolating minority voters. “There’s no question that’s an unintended consequence,” says Jankowski of the RSLC (which takes no position on Section 5). “Republicans benefit from the requirement of these majority-minority districts. It has hurt the Democratic Party’s ability to compete in the South.” But Kareem Crayton, a redistricting expert at the UNC School of Law, argues that Republicans “clearly decided to ignore what federal law requires,” noting that “a party that doesn’t like federal mandates all of a sudden getting religion and talking about the importance of federal voting rights is more than a little ironic.”
The VRA states that lawmakers must not diminish the ability of minority voters to participate in the political process or elect a candidate of their choice. “There’s nothing out there that says a state can’t draw a 42 percent black district instead of a 50 percent black district as long as black voters still have the opportunity to elect a candidate of choice,” argues Paul Smith, a prominent redistricting lawyer at Jenner & Block in Washington. The VRA, in other words, did not compel Republicans to pack minority voters into heavily Democratic districts. “Using the Voting Rights Act to justify racial discrimination is anathema to the purpose of the Voting Rights Act,” says Stacey Abrams.
But it’s also difficult for voting rights advocates to prove in federal court that packing minority voters into majority-minority districts diminishes their ability to elect candidates of choice. That’s why the Justice Department has pre-cleared redistricting plans in every Southern state so far except Texas, much to the chagrin of civil rights activists. (Plaintiffs may have better luck in state court in places like North Carolina, where the court has acknowledged that civil rights groups have raised “serious issues and arguments about, among other things, the extent to which racial classifications were used.”) “I have not been at all satisfied with the civil rights division of the Justice Department under the Obama administration,” says Joe Reed, a longtime civil rights activist and redistricting expert in Alabama.
Wasserman says the Justice Department is saving its legal firepower to challenge restrictive voting laws passed by Republicans in half a dozen Southern states since 2010. The laws require proof of citizenship to register to vote, cut back on early voting, curtailed voter registration drives and required voters to produce a government-issued ID before casting a ballot. The department has already objected to South Carolina’s voter ID law, since blacks are more likely than whites to lack the necessary ID. “Every method that human ingenuity can conceive of is being used to undermine, dilute and circumvent the rights of minority voters to enjoy the franchise,” says Reed.