Posted by Abigail Thernstrom, guest-blogging: A Period Piece http://volokh.com/archives/archive_2009_08_16-2009_08_22.shtml#1250729704
[Note to my lively, thoughtful readers: Your remarks deserve longer responses than I have room for. Very briefly, I agree with the comment: �Since the political makeup tends to correlate at least somewhat with the racial makeup, it is frequently difficult to distinguish these two things,� and I do talk about the issue in my book. [And I also believe that Obama probably performed worse than John Kerry in the South for reasons other than race. To the more conservative southern white ear, Obama must have sounded weak on national defense, and far to the left on domestic policies such as health care. He was not a decorated war veteran. Etc. (More on this point in the book.)] [And to clear up a confusion: Yes, I do say in Tuesday�s post that the preclearance requirements are exceedingly vague, and then asserted yesterday that Georgia�s original plan had met the demands of the law. It is the DoJ regs that provide no guidance to the states, but the Supreme Court�s standard in Beer v. U.S. (1976) was clear, and it remains the controlling decision. DoJ has created detours around that decision.] In 2006 the �Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act� (VRARA) was passed with almost no dissent. It amended and renewed section 5 for another quarter century. By the new expiration date, electoral arrangements in the South, the Southwest, Alaska, and a collection of arbitrarily selected counties elsewhere will have been under federal receivership, in effect, for a total of sixty-six years. Congress had been persuaded that at least until 2031 minority voters in the covered jurisdictions (covered by a formula last updated in 1975) would remain unable to participate in American political life without the benefit of electoral set-asides. Such pessimism is not benign; it distorts public discussions and the formulation of policies involving race. A serious disconnection from reality surrounds the Voting Rights Act today. By every measure, American politics has been transformed since the 1960s. Blacks hold office at all levels of government, and have reached the pinnacles of virtually every field of private endeavor. Racial prejudice has fallen to historic lows. Yet the passage of the 2006 VRARA was preceded by a sustained, meticulously organized campaign by civil rights groups to persuade Congress that race relations remain frozen in the past, and that America is still plagued by persistent disfranchisement. Activists were determined to garner such overwhelming support for the act�s renewal that no one would dare stop to consider whether these provisions were still appropriate in the twenty-first century. In passing the VRARA, Congress signed on to a picture that reflected conventional wisdom in the civil rights community and the media. �Discrimination [in voting] today is more subtle than the visible methods used in 1965. However, the effects and results are the same,� the House Judiciary Committee reported. �Vestiges of discrimination continue to exist . . . [preventing] minority voters from fully participating in the electoral process,� the statute itself read. Surely, rarely in the rich annals of congressional deceit and self-deception have more false and foolish words been uttered. No meaningful evidence supported such an extraordinary claim. It cannot be said too strongly or too often: The skepticism of those, like Georgia representative John Lewis, who cannot forget the brutality of those years is understandable. But the South they remember is gone. Today, most southern states have higher black registration rates than those outside the region, and over 900 blacks hold public office in Mississippi alone. Massive disfranchisement is ancient history�as unlikely to return as segregated water fountains. America is no longer a land in which whites hold the levers of power and black and Hispanic political representation depends on the exercise of extraordinary federal intervention, constitutionally sanctioned only as an emergency measure. In the presidential election of 2004, a stunning 68.2 percent of the black population in original section 5 states was registered to vote, a rate a few points higher than that in the rest of the country. Black turnout rates, as well, have been impressive. Whether candidates preferred by the group are able to win elections is another test of electoral progress. By 2008, there were forty-one members of the Congressional Black Caucus. Almost 600 African Americans held seats in state legislatures, and another 8,800 were mayors, sheriffs, sheriffs, school board members, and the like. Forty-seven percent of these black public officials lived in the seven covered states, though those states contained only 30 percent of the nation�s black population. The rate of black progress in winning election to state legislatures is also striking. My book contains much more data -- not all of which paint quite the same rosy picture. But the bottom line is indisputable: black officeholders today have political power. In fact, black voters are the Democratic Party�s most reliable constituency. Their unwavering loyalty makes them indispensable to the party�s fortunes. Voting rights advocates argue that elections are still racially polarized. But the highly questionable definition of white bloc voting most commonly used -- whites and blacks generally preferring different candidates -- means it can be found wherever black candidates run campaigns unlikely to attract a majority of whites. By definition, then, all districts in which whites tend to be more politically conservative than blacks are racially polarized. Without the threat of federal interference, would southern state legislatures feel free to engage in all sorts of disfranchising mischief? It seems wildly improbable. Not even Mississippi -- the state that Martin Luther King, Jr. in 1963 described as �sweltering with the heat of injustice, sweltering with the heat of oppression� -- can peddle backward. Blacks are today embedded in its political culture. As a Clarksdale, Mississippi, newspaper editorial noted in June 2008, �There�s probably less chance today of election discrimination against minorities occurring in Mississippi�given the high number of African-Americans in elected office, including as county election commissioners�than in many parts of the country not covered by the Voting Rights Act.� Yet, section 5 �presumes that minorities are powerless to protect their own election interests in places where they actually have the most clout.� Racial progress rapidly outpaced the law, and the voting rights problems that are now of greatest concern�hanging chads, provisional ballots, glitches in electronic voting, registration hassles, voter identification, and fraud prevention measures -- bear no relationship to those that plagued the South in 1965. Nevertheless, the most radical provisions of the statute live on, addressing yesterday�s problems. Fifteen years ago, one of the most liberal members of the Court came close to describing blacks and Hispanics as members of normal political interest groups. �Minority voters,� Justice David Souter said, �are not immune from the obligation to pull, haul, and trade to find common political ground, the virtue of which is not to be slighted in applying a statute meant to hasten the waning of racism in American politics.� America has changed; the South has changed, and it�s time to revise the Voting Rights Act as well.
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