In the wake of last month’s Supreme Court decision striking down an important component of the Voting Rights Act, the Justice Department has announced plans to reinvigorate its prosecution of discriminatory voting practices on the state, county, and municipal level, relying on the remaining sections of the VRA. Although the court’s decision left most of the VRA provisions standing, by striking Section 4(b), which determined which states and municipalities had to “pre-clear” their electoral practices with the federal government, it shifted the legal burden in proving discriminatory practices from local to the federal government. If minority voters will continue to enjoy legal protection, the Justice Department will have to go on offense.
Though a GOP-led Congress voted overwhelmingly to reauthorize the VRA in 2006, the Supreme Court was responding to a conservative lawsuit out of a mostly white suburb of Birmingham, Alabama when it ruled Section 4(b) unconstitutional. It argued that, in order to justify the onerous bureaucratic burden facing certain local governments, Congress could not continue to rely on a historical formula based on 1964, especially in the light of significant racial progress. According to the Section 4(b), any local jurisdiction which prior to 1964 had employed a “test or device” to exclude voters of color and had less than 50% voter registration overall would require pre-clearing, a process by a panel of federal judges could veto anything from voter ID laws to changing a polling place from one church to another. Local governments could sue to “bail out” of the pre-clearing process, but doing so required a 10-year record of no discriminatory practices. Only moments after the opinion striking down 4(b) was announced, Texas, no longer held back by the federal stay, asserted its racial progress by moving forward with the implementation of a controversial voter ID law that had been struck down by pre-clearance last year, defending against “widespread” voter fraud and deaf to arguments doing so would disproportionately affect communities of color.
Already, the court’s ruling and the federal government’s reaction to it have epitomized both ways of looking at race and law in America. The right has always seen racism as a largely legal problem that was completely and instantaneously remedied by the passage of the Civil Rights Act of and the Voting Rights Act in 1964 and 1965. There used to be “bad” laws like segregation and poll taxes, but those laws are now gone, and, in fact, today we largely live in a post-racial society. Any discussion or identification of discrimination serves only to “divide” us.
The left, on the other hand, sees racism as a cultural, institutional phenomenon that the law has a responsibility to protect against, in the form of affirmative action, pre-clearance, or hate crime legislation. Sure, there might not be a readable, racist intent in our criminal code, but that does not mean that it won’t have racially discriminatory consequences that the government has a legal duty to redress. In the fight for the VRA, two concepts of racial fairness, each unfathomable to the other, are butting heads. The legal dilemma is that anti-discriminatory laws need context and an appreciation of racial history in order to make sense. Without it, as in the eyes of many conservatives, these laws look like special treatment.
In terms of the court’s decision, although all that was decided was that the pre-clearance formula was outdated, in effect pre-clearance itself was struck down. Any possible path to reviving it left open by the court, such as Congress passing legislation setting up a new formula, is extremely unlikely. Without that new formula, pre-clearance is dead.
In light of this, the Justice Department has decided to go on offense. They are now on disadvantageous ground, the burden of proof having shifted from the local level, which before had to prove that electoral changes did no harm, to the federal government, which now must prove that they do. Undaunted, Attorney General Eric Holder announced the Justice Department’s support for a lawsuit challenging the voter ID law and filed by a coalition of Texan lawmakers and activists, making it clear that we can expect many more such anti-discriminatory suits to follow.