November|December 2003




IT DIDN'T MAKE HEADLINES IN MANY NEWSPAPERS, but the U.S. judicial system delivered a significant decision last year when a three-judge panel concluded that the current racial environment in southern California is better than that of Mississippi circa 1959. Most Americans might think this is obvious, but the determination was a blow to activists who rely on the Voting Rights Act, a once-important piece of legislation that has outlived its usefulness.

The case, Cano v. Davis, was a challenge to two Congressional districts and one state senate district drawn by the Democrat-led California State Legislature after the last round of reapportionment. The plaintiffs, a large group of Hispanic activists represented by the Mexican American Legal Defense and Educational Fund, claimed that the state had improperly drawn these districts to "dilute" the voting power of Latinos in southern California and thus stymie the electoral chances of Hispanic candidates. Without a trial on the merits, the three judges (all appointed by Democrats) tossed out MALDEF's lawsuit, an unusually quick outcome for a voting rights case. The Supreme Court summarily affirmed the lower court's decision.

MALDEF had claimed that the three districts were "racial gerrymanders" resulting from the legislature's "predominant" use of race in the line-drawing process, which segregated voters into ethnically defined districts and violated the Equal Protection Clause of the U.S. Constitution as well as the Voting Rights Act. In years past, irregularly shaped districts hadn't bothered MALDEF. For at least a decade, in courts from coast to coast, the organization had enthusiastically defended racially gerrymandered voting districts shaped like bug splats, districts that made their counterparts in California look chunky and compact. But the new California districts made it less likely that Hispanic candidates would displace white incumbents who ran in these districts.

From the way MALDEF was arguing, you might assume that these white incumbents had acquired their seats as a result of anti-Hispanic sentiments among voters. In fact, these incumbents were elected—and will likely be reelected for the foreseeable future—because the voters who elected them are mostly indifferent to their race and ethnicity. The California court noted this indifference when it ruled against the plaintiffs. If the white voters in these districts voted for or against candidates because of the candidates' race or ethnicity, MALDEF would probably have prevailed. But because white voters throughout the country are increasingly colorblind—or at least color-indifferent—groups like MALDEF and the NAACP are going to have a very hard time convincing federal courts that minorities still need their own safe and secure voting districts.

TO UNDERSTAND THE SIGNIFICANCE OF CANO a little history is required. The Voting Rights Act of 1965 was among the most effective pieces of legislation passed during the second half of the twentieth century. National public opinion in support of the VRA was strong, nearly five to one in favor of its passage. Even in the South, support for the bill among white adults was 49 percent. As Abigail Thernstrom noted in her seminal book Whose Votes Count?, the act's simple and enduring aim was to provide the right to vote to Southern blacks. To achieve this goal, Lyndon Johnson demanded that his staff write the "goddamnedest and toughest" voting rights bill they could devise.

By every measure, they did. Less than three years after the VRA's passage, voter registration among blacks in Georgia had jumped from 19 percent to 51 percent; in Mississippi, black registration swelled from less than 7 percent to nearly 60 percent. Like most "temporary" laws, however, the VRA remains in place today. And like most civil rights laws, the two most radical provisions in the VRA—Sections 2 and 5—have been transmogrified into an often unworkable and indecipherable law that guarantees more race-consciousness, not less.

Section 5 required that any changes to voting procedures in the principally Southern jurisdictions covered by the law be "precleared" by the U.S. attorney general or the U.S. District Court for the District of Columbia before being implemented. Unlike the act's meaty Section 4, which ended literacy tests, poll taxes, and other pernicious devices that had blocked black participation at the polls, Section 5 was not a major concern during Congressional debate. Its inclusion in the bill was designed to trump any new contrivances jurisdictions might impose to slow the growth of black voting. Given the "massive resistance" to school desegregation and other civil rights actions by the federal government at the time, it was not an unreasonable addition to the law.

Beginning with Allen v. State Board of Elections in 1969, however, the courts expanded Section 5 from guaranteeing black access to the polls to guaranteeing the "effectiveness" of their vote. Not only blatant and obvious but also subtle and even unintentional actions were held to violate the law. As a result, hundreds of jurisdictions began going hat-in-hand to the Department of Justice, asking permission to annex land, change voting district lines, expand the number of representatives to an elective body, and so forth. Again, much of this was understandable in the years immediately following the passage of the VRA, since Southern chicanery required the DOJ to keep a close eye on unusual developments in voting procedures. But as judges and bureaucrats got in the habit of stretching the meaning of the VRA to reach any and all ends they considered desirable, the groundwork was laid for abuses. What started out as a tool to prevent anyone from being turned away at the ballot because of skin color turned into a means of second-guessing perfectly legitimate, nonracial rules concerning, for example, ballot security and absentee ballots.

LIKE SECTION 5, SECTION 2 OF THE ORIGINAL ACT has been reinterpreted by the courts, and, more importantly, by Congress. Originally, this section allowed no qualification or prerequisite to voting to be imposed by any state or jurisdiction on account of race. Grandfather clauses are the classic example of a racist pretext for excluding black voters. Section 2 began as little more than a clone of the Fifteenth Amendment, a simple ban on discrimination that was a shield, not a sword. But like so many civil rights laws, it was unwisely amended by Congress in an attempt to circumvent a Supreme Court decision some politicians and civil rights activists didn't like. In City of Mobile v. Bolden (1980), the Supreme Court ruled that Section 2 required a showing of a discriminatory intent—a reasonable enough standard, but one viewed as too difficult to meet by some critics. And so, instead of proscribing a jurisdiction's discriminatory treatment of blacks at the ballot box, the amendments, made in 1982, forbade any governmental action that had a racially disproportionate result.

Consequently, any voting practice that was determined to be a denial of a minority group's ability to elect its representative of choice was now subject to the VRA's Section 2 prohibitions. But Congress didn't provide much guidance about how one proves this denial, and hundreds of jurisdictions were ba¡Y´ed by what the statute actually meant. In 1986, the Supreme Court was forced to step in to provide a framework for establishing a claim about the "dilution" of the minority vote in a district. The court created three conditions, the third with the sharpest teeth: If whites typically vote as a bloc to defeat the minority candidate of choice, then racial gerrymandering could be used to offset this phenomenon.

But the abuses of the VRA continued. By the 1990s, supporters of racial proportionality in the voting rights section of the civil rights division at the DOJ were demanding the creation of "max-black" voting districts—districts drawn to maximize the number of black voters in them¡—and were rejecting plans drawn by state legislatures that didn't meet racial quotas specified by the division. What's more, the "results" language enabled activists to challenge perfectly legitimate rules, like not letting felons vote, as illegal discrimination because of their racially disproportionate effects. The original 1965 Voting Rights Act was one of the best and most effective pieces of legislation ever passed; its 1982 amendments proved to be among the worst and most destructive. What had begun as an effort to ensure all citizens the right to vote had degenerated into a DOJ-led extortion racket. In order to receive the federal government's preclearance of their reapportionment plans, states had to racially gerrymander them to the nth degree.

IRONICALLY, AS THE POWER OF THE VRA CONTINUED TO GROW, its reason for existing began to disappear. By the 1980s, whites were sometimes voting for black candidates even when there was a white candidate in the race. (Blacks, on the other hand, still rarely vote for a white candidate if there is a black candidate in the race; the same is generally true of Hispanics, to whom the VRA's protections were extended in 1975.) Simply put, the voting habits of white Southerners, and nearly all white Americans, are today colorblind to an extent that only the wildest optimists would have envisioned in 1965.

This turn of events has MALDEF and the NAACP struggling to find new and innovative ways to prove to judges that whites still act as a cohesive voting bloc to defeat minority candidates. Without this proof, using the VRA to demand the creation of Rorschach-blot-shaped districts that guarantee the election of a Hispanic or black candidate is difficult or impossible. Furthermore, a series of Supreme Court decisions from the 1990s makes it clear that the Fourteenth Amendment demands the government look with heightened suspicion on any racial considerations in redistricting.

And so, after two decades of complaining about the effects of certain voting districts—not the intent used to create them—the racial advocacy groups now find their reliance on the amended Section 2 of the VRA a problem. It was the amended Section 2 on which they unsuccessfully relied in Cano v. Davis. A similar outcome is increasingly likely elsewhere as well. As the district court noted in Cano, although Latinos constitute a majority in the districts they challenged, the plaintiffs were unable to demonstrate that whites vote sufficiently as a bloc to defeat the preferred candidate of Hispanics. Throughout America, this is old news: Minority candidates have attracted so much white crossover voting during the last 15 years that their success at winning elections doesn't raise an eyebrow.

SO SHOULD WE RUE THE TWO DECADES OF VRA MISAPPORTIONMENT, but rest assured that the act is now functioning as it was originally intended to? The answer is no. Even if the most abusive lawsuits are being thrown out by courts, unjustified litigation continues and it has bad consequences. It is expensive and unpredictable, and its mere threat is enough to push some jurisdictions to continue gerrymandering. The post-2000 census reapportionment—in Virginia, Georgia, Mississippi, Texas, and elsewhere—still spawned lawsuits revolving around whether there was too much or too little attention paid to race. In many cases, the jurisdictions want to gerrymander, and Section 5 gives them a fig leaf to justify their actions.

If there are fundamental problems with a statute—if the premise on which it is based no longer exists—then Congress ought to rewrite it. As an institutional and constitutional matter, the courts shouldn't be thrust into the political process any more than is necessary. It is misguided to place more and more reliance on judges who often don't understand the messy, but by no means illegitimate, political minutiae of the redistricting process.

Minority voters are no longer disenfranchised, and to pretend that they are helps no one. The ballots of black voters are increasingly marginalized for the simple reason that nearly 90 percent of them can be counted on to vote straight-Democrat, so they are taken for granted by Democrats and written off by Republicans. The VRA amendments actually facilitate this race-driven voting behavior, the result of which is bad for both parties in the long run. Republicans don't get into the habit of campaigning for black votes or develop the skills for successfully doing so, because in most local elections there are practically no black voters in any district they can hope to win. Furthermore, isolating blacks and Hispanics in safe "minority-majority" districts pushes their leadership to the left because more moderate constituencies are gerrymandered out, and it marginalizes more moderate and conservative minorities.

The Voting Rights Act now thwarts the desegregation of voting districts, a result that calls the constitutionality of the act into question, encourages identity politics, and is bad in the long run for Democrats and Republicans, minorities and nonminorities. (The law is also dubious in continuing to treat the South differently from the rest of the country and requiring ballots to be made available in foreign languages.) Since the act is up for reauthorization in 2007 anyway, it's time to start thinking about how to reincorporate the court's constitutional standard into Sections 2 and 5: Is the right to vote being abridged because of race, or not?

It's up to Congress to fix what it broke. The pro-gerrymandering provisions of the Voting Rights Act need to be repealed, and the VRA needs to be returned to its original conception: a mechanism to ensure that people are not treated differently according to race when they vote.