The Voting Rights Act Comes to the Supreme Court

On Wednesday, the Supreme Court will hear oral arguments in Shelby County v. Holder, a case that will ask the Court to examine the famous Section V of the 1965 Voting Rights Act. I touched on this case last month in a broader piece about race cases for National Review and now seems like a good time to reassert the argument:

This term’s second blockbuster race case–Shelby County v. Holder, a challenge to the Voting Rights Act (VRA) of 1965–offers an opportunity to reformulate conservative principles for the new century. Section 5 of the VRA prohibits any covered jurisdiction (most, but not all, of which are in the South) from modifying its electoral system without permission (“preclearance”) from the Justice Department or the federal courts in Washington, D.C. This extraordinary remedy is based upon Congress’s authority under the 15th Amendment to enforce the right to vote—a right that was still widely denied to blacks when the act was passed.

While the VRA was necessary shock therapy to end Jim Crow, its violations of federalism have no place in the 21st century. In today’s South, blacks register and vote at rates that are equal to, and sometimes higher than, those of whites. Twenty-two percent of the U.S. voting electorate in the 2008 election was non-white (12.1 percent black, 7.4 percent Hispanic, and 2.5 percent Asian), and the 2012 election showed that this is a trend, not an anomaly.

Minorities have won numerous positions of elected leadership at the local, state, and federal levels. Just over 10 percent of the members of the House of Representatives are black, and almost 7 percent are Latino. When Americans of Asian descent are added, the percentage of minority House members in the most recent Congress was 19.1. And, of course, a black American is about to start his second term as president of the United States.

The very nature of an extraordinary remedy means that it should not become ordinary. As recently as 2009 the Court expressed concerns with the preclearance regime, noting that it goes “far beyond the prohibition of the Fifteenth Amendment” and “differentiates between the States, despite our historic tradition that all the States enjoy equal sovereignty.” The plaintiff in the current case, Shelby County, Ala., has asked to have Section 5 declared unconstitutional, since it imposes a great burden on state and local governments without any showing whatsoever of recent discrimination against minorities, let alone the sort of massive and sustained discrimination that would be necessary to justify (as it did in 1965) such an invasion of a state’s prerogative to determine its own voting laws.

And yet Democrats and Republicans have cynically colluded to use the Voting Rights Act to advance their partisan interests. In the George H. W. Bush administration, for example, the Justice Department allowed states to create congressional districts with very high concentrations of minority voters (no benefits of diversity here, it seems). Democrats approved of this policy because the districts reliably elected minority congressional candidates, while Republicans liked it because it siphoned minority voters from nearby districts, which were thus more likely to vote Republican. The minority-heavy districts sent (and continue to send) far-left representatives to Congress even as they helped Republicans win and keep control of the House of Representatives. Similar results have occurred on the state and local levels.

Conservatives should oppose the VRA, and not just because it immorally classifies individuals on the basis of their skin color. As with affirmative action in colleges, conservatives can go beyond arguments based on the Constitution and attack these voting schemes for sacrificing the interests of minorities on the altar of elite opinion. Drawing districts along natural geographic or historical boundaries, and letting the minority population fall where it may, will end minority officeholders’ exclusion from the competition of normal politics. At the same time, candidates of all stripes will have to consider minority views as they build coalitions. The rough-and-tumble of politics will mean that the number of minorities in Congress will wax and wane, as it does for every category in a truly competitive system, but both minority voters and minority politicians will benefit from the end of their ghettoization.