- Published on Tuesday, 29 May 2012 17:41
- Written by Roger Clegg
“Minority Babies Are Now Majority in United States,” read the headline in the Washington Post a couple of weeks ago. And one thing that an increasingly multiracial and multiethnic United States cannot have is a system in which its institutions treat people differently according to skin color and what country someone’s ancestors came from—where, for example, public universities, government employers, and public contracting officials give preferential treatment to some and discriminate against others on the basis of race and ethnicity. Such division was never a good idea and is now simply untenable. E pluribus unum—now more than ever.
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And another area where this is an issue is with voting. Yep, even in voting—particularly in redistricting—politically correct racial considerations raise their ugly head. But that may change.
Here’s how: The same week as the Washington Post story, two cases challenging the constitutionality of Section 5 of the Voting Rights Act were decided by the federal court of appeals for the District of Columbia circuit. The bad news is that neither case was successful, but the good news is that both are now ready for Supreme Court, which is going to have to decide this issue sooner or later anyhow.
And there is reason for optimism once that happens. Earlier this year, in Perry v. Perez,the U.S. Supreme Court handed down a unanimous decision involving redistricting in Texas.
In its decision, the Court overturned lower court orders that had redrawn the legislative districts drawn by the state. The gist of the Court’s decision was that federal courts must be careful in throwing out state officials’ redistricting work, even when the challenge to that work is based on claims under, in particular, the Voting Rights Act. The Court sent the cases back down with some general guidance and the admonition to be less high-handed in throwing out the state’s work wholesale.
As I wrote at the time in the New York Post, it would be a mistake to read too much into the Court’s decision. The decision is fairly short and relatively narrow—and, what’s more, the decision was unanimous, which makes it unlikely that anything really controversial was written.
But also there in the Court’s decision—sometimes implicitly, sometimes between the lines, sometimes more overtly—is an equally healthy skepticism about the present Voting Rights Act and its use to require racial gerrymandering.
Yes, that’s right: The principal use of the Voting Rights Act—one of the crown jewels of the Civil Rights Movement, the same movement that aimed to abolish segregation and ensure nondiscrimination—is now to ensure that voting districts are drawn with an eye on race to ensure that they are properly segregated so that African Americans and Latinos have “their” districts.
Thus, in the Perry cases, the main complaint was that there had not been sufficient racial gerrymandering. And, at oral argument, Justice Kennedy explicitly noted the additional problems created in this area by Section 5 of the Voting Rights Act—which requires any change in voting practices or procedures in some jurisdictions, mostly but not exclusively in the South, to be preapproved by a federal court or the U.S. Department of Justice.
That is the issue with which the Supreme Court will have to deal soon: Is the Voting Rights Act, and especially its Section 5, constitutional—given its intrusiveness, given the transformation of the South, given its prohibition of actions that do not violate the Constitution, and particularly given the racial gerrymandering that the Act is now used to promote?
The Supreme Court considered the constitutionality of Section 5 in 2009. While its eventual decision at that time avoided ruling on this matter, the Court’s opinion wrote extensively on the “serious constitutional questions” raised by the current law—and the Perry decision quoted those words. Justice Thomas wrote separately in 2009 to say he would strike down the law without further ado—and in Perryhe reiterated that position in his separate, concurring opinion.
As Chief Justice Roberts had noted in another Texas redistricting case in 2006, “It is a sordid business, this divvying us up by race.”
He’s right, and racial gerrymandering has all kinds of bad consequences (many of which were emphasized, by the way, in the dissent by Judge Stephen Williams from the D.C. Circuit decision handed down this month). The racial gerrymandering creates districts that are less competitive and more polarized, racially and ideologically. It insulates Republican candidates and incumbents from minority voters and from issues of particular interest to those voters. Conversely, the insulation of minority candidates and incumbents from white voters makes it less likely that those politicians will ever be elected to statewide positions. Worst of all, it encourages racial balkanization and identity politics.
None of which is tolerable in a nation that is becoming as multiracial and multiethnic as ours is.
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By the way, the Center for Equal Opportunity has been involved in all the cases discussed above. And I should also mention that our board member Abigail Thernstrom is the expert in this area, and we highly recommend her latest book, Voting R ights—and Wrongs.