When Georgia’s Republican leaders redrew the state’s election-district maps last year, Democrats and minorities instantly cried foul. In an increasingly diverse state where 47 percent of voters chose Obama in 2008, the new maps looked likely to hand the GOP 10 of the state’s 14 seats in Congress. Perhaps even more significantly, they were drawn so as to give Republicans a shot at a two-thirds majority in both chambers of the state legislature, allowing them to pass constitutional amendments unilaterally. They achieved this in part by “packing” the state’s black voters (who overwhelmingly vote Democratic) into a handful of districts in order to make others more solidly white (and Republican).
Fortunately for the state’s Democrats, federal law seemed to offer a time-tested remedy. Section 5 of the Voting Rights Act, a landmark civil rights bill passed in 1965 to crack down on poll taxes and other discriminatory practices, requires Georgia and a number of other Southern states to get federal approval for any changes to their voting laws. Any that harmed minorities’ chances of fair representation were to be thrown out. And that’s exactly what Georgia Democrats expected Obama’s Department of Justice to do with Republicans’ new maps. Just two years earlier, it had invoked Section 5 to block two Georgia voter-verification laws. Liberals gleefully predicted the Republican gerrymanders would likewise be “DOA at the DOJ.”
The Republicans held a trump card, however: the threat of a lawsuit challenging the Voting Rights Act itself. If the Justice Department didn’t clear their maps, they warned, they’d pursue their case and seek to have the VRA’s Section 5 struck down by the Supreme Court.
Five years ago, that threat might have rung hollow. Yet the DoJ quickly approved the maps. The state’s Democratic and black leaders were stung by what they saw as a capitulation. “The DoJ’s decision was disappointing, because Republicans took it as an approval of their resegregation strategy,” says Stacey Abrams, leader of the Democratic minority in the Georgia House. So why did the DoJ acquiesce?
It’s possible, of course, that it thought the maps were just fine. While many believe packing contradicts the spirit of Section 5, it’s not prohibited per se. If anything, it provides near-certainty that at least some minorities will be elected to Congress and the statehouse. In Georgia, it’s white Democrats who are likely to be squeezed out as previously diverse districts become whiter and more conservative. The upshot is that black legislators may end up as a powerless Democratic minority in the Statehouse. So is that racial discrimination, or just gerrymandering as usual?
But Georgia is not the only state where the DoJ has disappointed Democrats by signing off on Republican-drawn redistricting maps. Virginia, South Carolina, and Louisiana all got green lights after adopting the same stance as Georgia: Approve or we sue. For Louisiana, it was the first time its state House of Representatives maps had ever won approval on the first try. And last month, the assistant attorney general for civil rights hinted the department might drop its Section 5-based challenge to a North Carolina town’s election law.
The real reason for that laissez-faire approach, Democratic leaders suspect, is that the DoJ is loath to test Section 5 in court. If so, there’s good reason for its reticence. Over the past few years, the law has come under assault from conservatives across the country, who see it as an outdated federal intrusion on state’s rights. The movement has been emboldened by the John Roberts-led Supreme Court, which in 2009 stopped just short of overturning it. The talk among legal experts now is that it may not survive another frontal assault. The obvious conclusion is that Attorney General Eric Holder is picking his Section 5 battles in a bid to spare a vulnerable law from destruction.
But to call Section 5 “vulnerable” is to understate what is already happening in Georgia and other Southern states. A more sober appraisal would be that Holder is trying to salvage what’s left of the VRA: By shying from the redistricting cases, the DoJ has already signaled that it is no longer willing to defend a robust interpretation of the law. Instead, it has focused its efforts on a South Carolina voter ID law, which many see as a straightforward affront to Section 5, and a lawsuit from Shelby County, Ala., that explicitly seeks judicial review of the section.
The restraint may be prudent, but it also comes at a huge cost for Democrats. The maps in states such as Georgia will shape elections there for the next decade, dampening Democrats’ hopes of turning the state blue as its demographics continue to become more diverse. DoJ-approved maps in North Carolina are an immediate setback in a state that voted Democratic in the 2008 presidential election for the first time since 1974.
And even with the Department of Justice carefully choosing its ground, many legal scholars are convinced that Section 5’s days are numbered. By those grim lights, the Justice Department’s quiescence isn’t saving the law—it’s just buying time. No liberal wants to let one of the defining laws of the civil rights movement die on their watch. Instead, they’re letting it waste away.
Few would have predicted such a rapid demise. For decades after its passage, the VRA enjoyed broad support, at least outside the Southern states targeted by Section 5. (Nine states—Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia—are fully covered by the law, while seven others are partially covered under the formula, which is based on voting in the 1964 election.) It was credited with ending the legal whack-a-mole game in which these states passed discriminatory laws, then withdrew them and passed new ones as soon as the federal government sued. As Slate’s Dahlia Lithwick has noted, on the long road to rectifying racial inequality in the United States, there always had been a chorus of wee voices asking, “Are we there yet?” Yet as recently as 2006, Congress responded with a resounding “no.” Legislation to renew the Voting Rights Act for 30 years passed with flying colors in the House; the vote in the Senate was 98-0. The VRA’s future appeared secure.
That changed when the Supreme Court veered right under Roberts. In a 2009 case out of Texas, several justices voiced strong misgivings about Section 5, wondering why it still applied to some states and not others. (It’s a fair question: Indiana and Wisconsin, among others, have passed voter ID laws similar to those the DoJ blocked in Southern states.*)
The court stopped short of striking it down, but its oral arguments were seen as a warning to Congress: Fix this law, or we’re eventually going to kill it. Apparently unwilling to risk fracturing the coalition that supported the status quo, Congress did nothing.
And now the Department of Justice appears to be tiptoeing around on the basis, not of a ruling, but of mere oral arguments made by justices in the Supreme Court. To NYU law professor Samuel Issacharoff, who wrote an influential paper in 2004 calling Section 5 “a victim of its own success,” that’s as it should be: When SCOTUS speaks, the DoJ is wise to listen.
In the eyes of Democrats in Georgia and other Southern states, the Justice Department has already ceded too much ground. Yet that assumes that if it did take the fight to the Supreme Court, the DoJ would have a realistic chance of prevailing. UC-Irvine law professor Rick Hasen doesn’t think that’s the case. That the Roberts court would overturn key parts of Section 5 in the face of a direct challenge, Hasen believes, is a near certainty. The real question, he said, is how sweeping the ruling would be—and whether other civil rights laws would drop like dominoes in the fallout.
If the court strikes down Section 5, it will likely be on the grounds that there’s not enough evidence of ongoing racial discrimination in the covered states to justify federal meddling in their electoral processes. But if that’s true, then what’s to save Section 2 of the Voting Rights Act, which applies nationwide? Both sections rest on the assumption that the government still has an important role to play in redressing racial wrongs. And while the cases are quite different, it’s the same fundamental premise that forms the legal basis for affirmative action—which the Supreme Court has decided to tackle in the current session. Roberts and others on the court have made it clear they just don’t think racism is that big a problem anymore.
So what will happen if the VRA is gutted? It’s true that the country, including the South, has changed since 1964, and no one expects states to bring back poll taxes. Rather, the main result would be to give state-level political majorities more leeway to rig voting rules in their favor, even when that means diluting the influence of minorities at the polls. That would be a shame, and it would slow the process of political change in states like Texas and Georgia as minorities make up an ever-larger share of the population. But in the long term, it may not amount to the worst-case scenario that some civil rights activists fear. Through strategies such as packing, Republicans have long managed to work the VRA to their advantage anyway. And even voter ID laws won’t hold back the tide of minority influence at the polls for long.
For a time, the South Carolina case appeared as though it could be on track to reach the high court this year. Hasen now believes the Shelby County case, backed by three Republican attorneys general, is the best bet to win the sweepstakes, perhaps reaching the Supreme Court next year. By that point, of course, even a win for the Justice Department wouldn’t change the outcome of the battles it has already forfeited.
Correction, March 1, 2012: This piece originally misidentified Ohio as a non-Section 5 state that has passed a voter ID law similar to South Carolina's. Ohio's House of Representatives did pass a voter ID bill in March, but it stalled in the state Senate and never became law. (Return to corrected sentence.)
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