Pop Quiz. Which state has the most African-American elected officials? Mississippi. In fact the Magnolia State and its Southern brethren lead the country in many categories of black voting prowess and electoral power. For instance, when the Census Bureau compared racial disparities in voting registration and turnout, the top 10 — i.e., the states where differences were the smallest — included Mississippi, Alabama and Georgia, with Louisiana, South Carolina and Texas not far behind. In fact, black voters in Mississippi and Alabama actually turn out in higher percentages than their white counterparts. The only outlier is Virginia, ranking 44th in registration and 45th in turnout. Which state ranked last in both categories? Massachusetts.
The reader will be forgiven, however, if she receives blank stares at the next Washington cocktail party when toasting the South for its political “inclusiveness” and “diversity.” Those who attend such events, along with the federal government, are woefully benighted to contemporary Southern racial dynamics.
This obliviousness was on full display in the case of Shelby County v. Holder, which was recently decided by the District of Columbia Circuit Court. In Shelby County, the court rebuffed a constitutional challenge to Section 5 of the Voting Rights Act, originally passed in 1965. Section 5 mandates covered jurisdictions (mostly Southern states and their political subdivisions) get preapproval from federal authorities before implementing any changes — no matter how trivial or obviously nondiscriminatory — to their election laws.
The fact that Section 5 directs the federal government to treat some states differently raises serious constitutional concerns. Even more problematic is that Congress has not updated the Section 5 coverage formula since 1972. This formula is so out-of-date that if applied today it would only cover Hawaii. The resulting time warp puts Section 5 supporters in a quandary. A prominent scholar explained the problem succinctly: “The most one can say in defense of the [coverage] formula is that it is the best of the politically feasible alternatives or that changing the formula would … disrupt settled expectations.” And just what are those “settled expectations”? The familiar yet dated stereotypes taken as gospel by Washington officialdom at their cocktail parties.
Congress — always willing to valiantly fight for cheap political points — supported the “settled expectations” with a whopping 15,000-page record before the Voting Rights Act’s latest reauthorization in 2006. It concluded that, without regard to past sins, Section 5 covered the same jurisdictions where current violations are happening or might happen without reauthorization. How convenient.
But while one may expect such willful blindness from a supremely political body, courts are supposed to be different. The Constitution trusts judges to disassociate politics from law and apply the facts to the law as written.
The criteria the court used to justify Section 5’s admittedly heavy burdens are weak at best. For instance, the court looked to the quantity of Department of Justice Section 5 actions — e.g., information requests and objections. It concluded that this activity demonstrated persistent problems in covered jurisdictions. A cynic might opine this activity derives from DOJ agents with political agendas seeking to justify their positions. But even without ascribing ill motives, it’s easy to see potential selection bias.
Another criterion the court touted was that minority voters sometimes failed to elect their “candidate of choice.” Well, that often happens in a democracy. In any case, it has two positive results. First, it encourages the defeated to advocate harder for their future candidates. Second, it gives people a chance to judge the success or failure of the other party’s policies. The current federal focus on majority-minority districts forces gerrymandering and produces narrowly focused candidates, making them less appealing statewide.
Particularly galling is the court’s repeated admonition that South Carolina and Louisiana in particular have never elected an African American to statewide office. While true, this supposed indicator of animus toward minority candidates fails remarkably. Both states have Indian-American governors.
While Southerners have moved past the ugly incidents that unfortunately marked a good portion of the 20th century, the federal government has not.
But those days are gone and not coming back. And remedies such as Section 5 are now as anachronistic as the problems they were designed to solve. As Justice Clarence Thomas, the Supreme Court’s only Southerner, has noted, Section 5’s demise should be celebrated not mourned. For now, the South is stuck waiting for the rest of the country to catch up.
Paul H. Jossey is a lawyer living in Alexandria, Virginia. His interests include environmental policy and First Amendment issues.