May 22, 2006

Thernstrom on Voting Rights Act renewal

Abigail Thernstrom sends along the following thoughts via email on Voting Rights Act renewal:

    Actually, in contrast to Nate Persily's take on last Wednesday's Senate Judiciary Committee hearings--where he and I both testified--I thought the whole affair rather sad. Fred Gray did great things in his day, but like so many who had a moment in history, that day lives on and on in his imagination. (In desperately trying to depict America as still hopelessly racist, he even dragged in No Child Left Behind.) Armand Derfner and Drew Days likewise seem to be holding on to a vanished era for dear life. A majority in Congress may find it politically expedient (and morally gratifying) to deny extraordinary change and pretend that southern disfranchisement could actually reappear, but most Americans know better. Advocates of renewal keep talking about section 5 as the great deterrent; in fact, it is the power of the black vote coupled with radically altered racial attitudes that have blocked permanently any possible return to old and ugly ways. Southern segregationists knew that black enfranchisement would be--for them--the beginning of the end, and so it was.

    Nate can rather dismissively label my concern with the perpetuation of racial classifications (in the form of race-based districting) as predictable, but I suspect it's a matter that a majority on the Supreme Court will continue to find troubling. As it should. I also expect that those who worry that at least five Justices will have serious doubts about the constitutionality of the proposed VRARA are rightly flashing yellow warning signals that the civil rights community ignores at its peril.

    In 1965 the Voting Rights Act was perfect legislation. (I cannot think of another statute I would label as such.) But on the question of renewal and amendment more than four decades later I disagree--in varying degrees--with everyone writing for this wonderful blog site. Here are a few thoughts in response to them, to the experts who testified last week, and to the Senators who have already signed on to the proposed bill. These points are based in part on notes I took during the hearing.

    1. The record presented by Gray/Derfner/Days was, to put it mildly, thin. Anecdotes mostly--some quite old. There was a moment I found mildly hilarious in which Sen. Durbin said he was talking about “hard reality” (something like that) in contrast to my data. Well, Senator…oh, never mind.

    2. Using the existing trigger--or any trigger that rests on registration and turnout--no longer makes sense. In his testimony, Sam Issacharoff says: "Had the coverage
    formula been applied to the 1968 presidential election rather than the 1964 presidential
    election, not one of the originally covered states would have fallen under the preclearance
    regime." But that seems to miss a crucial point: those who wrote the '65 act knew precisely which states they wanted to cover and worked backwards--finding a statistical formula that would target them. The level of political participation (both black and white) was circumstantial evidence of the use of a fraudulent literacy test. In subsequent years, when literacy tests were banned, the logic of using turnout figures to finger jurisdictions deliberately keeping blacks from the polls was lost. Three boroughs in New York City, when they came under coverage in 1970, were not the equivalent of Mississippi, and even the NY Times thought the trigger had become arbitrary. Which it had--and is, by now.

    3. Another seemingly lost point: Preclearance was part of a package of temporary emergency provisions--equivalent to a curfew after a riot. Is black disfranchisement a permanent emergency? In 1965, no one dared suggest it should last even a decade. And that was not because the framers of the act were naïve about the determination of southern racists. Moreover the retrogression test was the only one that squared with the original vision of the provision as a means of ensuring that the effect of the ban on literacy tests stuck. Preclearance was a prophylactic measure--a device to guard against renewed disfranchisement. Against backsliding, in other words. Any other interpretation involves legal standards inevitably inappropriate to a process of swift administrative review. The notion that voting section attorneys (and their equal opportunity specialists) should be sorting out basic questions of electoral equality and applying (totally murky) constitutional standards in discerning discriminatory purpose is simply beyond me. White v. Regester et al were a mess. Aside from the fact that the definition of "purpose" disintegrated into a failure to draw max-black and max-Latino plans.

    4. I am a little bewildered by the references to a politicized Department of Justice. This is a story I wrote about with respect to the 1980s (and I did have access to the internal memos of the voting section), and that Maurice Cunningham lays out in great detail in his history of enforcement in the 1990s. Leaving aside, of course, the tale in Miller v. Johnson et al. More politicized today? I’m sorry; not credible, in my view.

    5. And a couple of last points, since I am sitting in bed with a fever and am undoubtedly wearing down the patience of readers: One, resting coverage on the record of section 5 objections might be fair if we could all agree that DOJ objections did, in fact, signal bad things going on, but DOJ objections have been ideologically driven for decades. Two, insisting that covered jurisdictions prove a negative--the absence of discrimination--made sense in the southern context in 1965; today? And finally, the meaning of "racially polarized voting" needs to be revisited. It is one topic among many that warrants a sophisticated discussion somewhere in the course of these hearings. Not holding my breath.

    Abigail Thernstrom

Posted by Rick Hasen at May 22, 2006 08:26 PM