- The Supreme Court did itself proud on Tuesday when it struck down Section 4 of the VRA.
- While passage of the 1965 act marked the death of Jim Crow South, today reflects the progress since.
- Mississippi, once the worst Jim Crow state, had the highest total turnout rate in the nation.
The Supreme Court did itself proud on Tuesday when it struck down Section 4 of the Voting Rights Act. That is the provision of the law containing the formula that determined which jurisdictions should be kept in the penalty box for suspected discrimination—even after nearly half a century of dramatic and heartening racial progress. While passage of the 1965 act marked the death knell of the Jim Crow South, the elimination of one of the act's obsolete provisions this week reflects the progress since.
With the court's decision in Shelby County v. Holder, the "covered" jurisdictions (mostly in the South) are free at last to exercise their constitutional prerogative to regulate their own elections. In killing Section 4, the court made unenforceable the preclearance provision in Section 5 of the act that required certain states and jurisdictions to obtain Justice Department permission for any laws or actions related to voting. So "covered" jurisdictions are no longer covered by Section 4, and the requirement that they get federal approval before even moving a polling place across the street is dead.
The civil rights community is up in arms over Shelby. Get ready for pressure on Congress to respond. But what could lawmakers do? Restore federal powers to review all proposed changes in election procedure—with the burden of proving an absence of discrimination on the jurisdiction itself, as was the case in pre-Shelby law? In theory, Congress could just use the original formula and update it with data from the 2012 elections. The problem: Members of Congress would not like the result.
In 2012, no state in the Union had a total voter turnout rate, for whites or minorities, under 50%—a figure that was the heart of the old formula. The turnout in the six states covered entirely by Section 5 was well above the national average. Mississippi, once the worst of the Jim Crow states, had the highest total turnout rate in the nation.
Civil-rights advocates today want states like Ohio subject to preclearance. It is very doubtful, though, that any American voters will be happy if their city or country or state government has to get permission from federal authorities, for instance, to alter the hours that polling places are open. And do voters trust the Justice Department to govern with a light hand any more than they trust the IRS? Seems doubtful.
The court's ruling Tuesday will benefit black America. Enforcement of the statute—including the imposition of "safe" black (and Hispanic) legislative seats as a remedy for discrimination—has herded black voters into what even North Carolina Democrat and Congressional Black Caucus member Rep. Mel Watt once called "racial ghettos." Rep. Watt was referring to race-based districts that have generally rewarded minority politicians who campaign (and win) by making the sort of overt racial appeals that are the staple of invidious identity politics.
The black candidates who ran in such enclaves never acquired the skills to venture into the world of competitive politics in majority-white settings. They were thus thrust to the sidelines of American political life—which is precisely what the statute did not intend. In this sense the law became a brake on minority political aspirations.
In his majority opinion, Chief Justice John Roberts described the purpose of the 15th Amendment—which forbids government at any level to deny voting rights to citizens based on race—as ensuring a better future. But the safe minority districts are not that better future. These districts once served the purpose of protecting black candidates from white competition when Southern whites would not vote for black candidates. But times have changed, and whites now vote for black candidates at every level of government.
The Section 4 coverage formula ignores current political conditions, Chief Justice Roberts wrote: "No one can fairly say that it shows anything approaching the 'pervasive,' 'flagrant,' 'widespread,' and 'rampant' discrimination . . . that clearly distinguished the covered jurisdictions from the rest of the Nation" in 1965. He also cited the dramatically increased figures on black turnout and registration, as well as black office-holding.
In enforcing the Voting Rights Act, Congress, the Justice Department and the courts have coped with the question of when decisions about electoral matters can be trusted to elected representatives by ignoring racial progress. Blacks, they have implied, live in a world in which the clock has almost stopped.
The issue of racial change has long sharply divided right and left, on the bench and off. Justice Sonia Sotomayor is too young ever to have witnessed the horrors of the South before the great civil rights acts of the mid-1960s. Yet, in the oral argument in Shelby, she questioned the whole notion that race relations in the region have been transformed.
Whatever the rates of black political participation in a covered jurisdiction, however many blacks are elected to legislative office, the liberals on the court were not likely to be satisfied. In the oral argument, a skeptical Justice Stephen Breyer drew an analogy between the problem of voting discrimination and a state whose crops had a plant disease in 1965. But "the disease is still there." No statistical evidence could possibly convince him that what he believed to be true was in fact false.
Justice Roberts gave full credit to the 1965 law for the progress he noted. The Voting Rights Act "has proved immensely successful at redressing racial discrimination and integrating the voting process," he said. It was an important statement—an acknowledgment of the efficacy of the act in the years it was so badly needed.
As for the coverage formula of Section 4—which was originally only supposed to last five years—the justice made clear that even if it could no longer be justified, it should never be forgotten. In 1965, Southern blacks were still in political chains, and the hold of whites on political power made all other forms of racial subjugation possible. It was part of a law that was an indispensable, beautifully designed and effective response to a profound moral wrong—Southern black disfranchisement that persisted 96 years after passage of the 15th Amendment.
Justice Roberts's opinion for the court is a celebration of the Voting Rights Act—and of a nation that made it work and outgrew its most-radical provisions.
Ms. Thernstrom is an adjunct scholar at The American Enterprise Institute and vice-chairwoman of the U.S. Commission on Civil Rights. She is the author of "Voting Rights—and Wrongs" (AEI Press, 2009).