It’s intriguing then that New York City isn’t eager to get out of the federal penalty box. Today, progressive, majority-minority New York City would seem to be a poster child for the claim that Congress has no basis to presume certain jurisdictions guilty based on their long-ago histories of discrimination—that when it comes to racism, past performance is no guarantee of future results. It is a near certainty that every one of the xenophobic New Yorkers who voted for the literacy test in 1921 is now dead. In 1989, the city elected its first African-American mayor; in 2009, the city council lost its white majority for the first time ever. (Shelby County, Ala., by contrast, is a terrible poster child for this claim: The white-flight exurb of Birmingham brought the case after its attempt to gerrymander its only majority-black city council district out of existence was blocked by the feds.) Why then is New York City, in a joint amicus brief filed by Mayor Michael Bloomberg and City Council Speaker Christine Quinn, urging the feds to continue presuming Manhattan, Brooklyn, and the Bronx guilty of racist voter suppression?
In its brief, which was pointedly filed the week of Martin Luther King Day, the city argues less as a covered jurisdiction than as the nation’s historic bulwark of social liberalism and its international gateway, guarding imperfect but progressive legislation from a reactionary court. It was the 1964 murder of two white New Yorkers, Michael Schwerner and Andrew Goodman, on a voter registration drive in rural Mississippi that rallied the nation behind the Voting Rights Act in the first place. In his filing statement, Mayor Bloomberg explained, “while New York has come a very long way since the 1960s … there remain other jurisdictions where there are efforts to impose unnecessary burdens.” Essentially New York will put up with the federal oversight because it doesn’t trust places like Alabama. And running a city where native-born whites are a small minority—New York City is now 37 percent foreign-born and, as the amicus brief notes, 67 percent minority—the mayor feels a certain responsibility to defend members of minority groups nationwide.
The brief itself is a document only a lawyer could love. It argues that Section 5’s preclearance requirements are “nominal and non-obtrusive,” conspicuously leaving out any reference to the halted 1981 primary. And though the brief rightly argues that, in an era in which demographics in both the city and the nation are becoming more diverse, the protections of Section 5 are more needed than ever, it fails to follow its own logic to the conclusion that Section 5 must be modified to better fit the country’s changing demographics.
The City’s brief notably avoids offering any defense of Congress’ coverage formula, which still relies on 1960s-era demographic data. Relying on more current data would likely flip the coverage scheme in New York City, increasing scrutiny on the two boroughs exempted from preclearance—Queens and Staten Island—in which the native-born white power structure has been most recently challenged by changing demographics. In a 2002 Election Day incident in Flushing, a once near-lily-white Queens neighborhood which has lately become almost entirely Asian, a white poll worker complained that Asian-American voters “should learn to speak English.” But since Queens was not heavily Puerto Rican in the 1960s, according to the Section 5 coverage formula, it need not preclear the electoral changes carried out by bigoted officials like this one.
Similarly, the most important voter suppression effort during the 2012 election took place in Pennsylvania, which was once overwhelmingly white and is exempt from preclearance even though it is now rapidly diversifying. (The Keystone State saw an 83 percent increase in its Latino population in the last census period.) In advance of the 2012 election, Republican state legislators passed a law requiring citizens to produce a photo ID to vote, knowing that in majority-minority Philadelphia fully 18 percent of residents have no drivers’ license, the most common form of ID specified under the law. As America’s racial diversity has spread beyond the historically diverse Southern tier and polyglot Northern metropolises to the nation as a whole, Section 5 remains stuck in the past.
Of course, just because a law is a bit out of date or is less than ideal doesn’t necessarily make it unconstitutional. But odds-makers think the conservative Roberts court is likely to strike down Section 5. Perhaps the bright, progressive legal minds in places like New York City should get a head start and figure out what a new, better preclearance coverage formula would look like. It would likely monitor Queens more closely than the Bronx and watch Pennsylvania as closely as it watches Alabama.