Artur Davis: Of Voting Rights and Gay Rights

At the risk of upsetting a popular narrative, that the Supreme Court just dealt a crippling blow to the interests of black voters while handing a decisive win to gays on the future of marriage, I offer a few contrarian points. In random order,

(1)   It’s a cheap misread to construe the Court’s rulings on Section 5 and the Defense of Marriage Act as some subversive proof that the Court, or more accurately Anthony Kennedy, the deciding vote in both cases, is more sensitive toward the aspirations of gays than blacks. Whatever you think of  Kennedy’s analysis, it is at its core a judgment about the scope of federal v. state authority: put simply, Justice Kennedy’s view is that states should have more leeway to regulate their election practices, as opposed to Washington, and that states ought to determine what is or isn’t a marriage, as opposed to Congress doing so. Those are serious, entirely consistent positions that shouldn’t be dismissed by fixating on the politics or matching the gloom on the face of blacks outside the Court yesterday with the zeal of gays today.

(2)    The Court’s complex holding on Prop 8 has a clean result-an explosion of gay weddings in California in the next month-but its winding procedural course had little to do with sweeping claims of autonomy or dignity. To the contrary, a rare coalition of conservative and liberal justices clung to some fairly basic rules of legal standing: You don’t get to file a lawsuit simply because you are rooting for one outcome or another. You have to be an injured party who is contending that either enforcing or violating said law injures you in some way. I am in the camp that thinks that the Court got it wrong here: by denying standing to the plaintiffs, the Supremes effectively let the Governor and Attorney General of California over-turn a majority of their voters by refusing to enforce or even defend Prop 8, their constitutional oaths of fidelity to California’s laws notwithstanding. But resolving Prop 8 with an ordinary technical legal point hardly suggests that the Court is poised to take on North Carolina’s referendum against same sex marriage last year, or any statute in any of the other 37 states that don’t recognize gay marriages.

(3)    Combined with the decision to decide another day on affirmative action, this was a week of a cautious court (or again, two cautious jurists in Kennedy and John Roberts) that took pains to minimize the upset to the social and political landscape. Politicians who have linked the Voting Rights Act to the Obama presidency can certainly do so in a thematic, inspirational way, but they should remember that with the exception of Virginia, not one VRA covered state was part of President Obama’s winning coalition in 2012. In not one of these states will a black congressman’s job be imperiled, given that the Republicans who control the legislatures in these states are perfectly happy with heavily racially gerrymandered districts and the free ride they give Republicans in the rest of the state. (It is telling that every single southern redistricting plan in 2011, all but one drawn by a Republican legislature, was pre-cleared by the Holder Justice Department). To be sure, voter ID laws in the VRA states will pass more frequently and with less scrutiny, but in states that are already red and that haven’t been contested at the presidential level since Bill Clinton seemed momentarily capable of winning everything in October 1996. (I will allow for the possibility that Texas is the one state where a rollback of Section 5 confers an edge to Republicans, given the vagaries of drawing districts there and the tension between a heavily Republican legislative majority and a rising minority base that is not as geographically concentrated as in the South).

(4)    Similarly, despite the talk about unstoppable momentum, the DOMA victory for gay marriage advocates could have been built of much stronger stuff. For all of Kennedy’s rhetorical lilt, the court explicitly declined to endorse a fundamental right of same sex marriage in every state, or even hold in dicta what a few justices suggested in oral argument—that a state is vulnerable to an equal protection challenge if it does not confer at least civil unions. Either conclusion was conceivable just a few months ago, and the tactical savvy of calling a partial win a historic landmark shouldn’t erase those inconvenient details in the storyline. And Democratic campaigns looking to gain ground around the issue will probably find that few major league Republicans will quibble aggressively with the federalist dimensions of the DOMA result: if a state issues a couple a marriage license, they are also entitled to be married for purposes of federal law and benefits. That license does not travel to Alabama or Virginia or one of the 37 states that preserves the traditional view of marriage.

(5)    I’ve argued here, and elsewhere, that conservative legal activists were wrongly fixated on Section 5 and not the hyper-gerrymandering that courts and DOJ bureaucrats have written into Section 2’s non-discrimination standard. But it is well worth watching what the mechanics of rewriting the Section 4 preclearance formula expose about liberalism’s internal tensions on race and politics. For example, as Democrats try to craft a new formula for preclearance that doesn’t just single out the old Confederacy, how many of them will be willing to see their states fall under the VRA’s coverage? How eager will Schumer, Feinstein, and Durbin be to see their local election chiefs in New York, California and Illinois learn the joys of federal oversight? It’s been easy in the last 24 hours to demand continued vigilance about the “benighted south”: the interesting question will be how many northern Democrats genuinely believe charity begins at home.

(6)    I don’t endorse the theory that one judge’s fifth vote tells us much about the relative lobbying power of the black political establishment vis a-vis the GLBT lobby. But by dispatching the next path on voting rights and gay relationships to the political process, the Court has just created a field that will invite comparisons on political skill. What are the prospects that the Congressional Black Caucus will be able to mobilize around a substantive legislative vision of which communities ought to be covered by the VRA, and that their product will appreciate two subtle realities: that in today’s world, black voter participation is weaker in states like Indiana and Michigan than in Alabama and Georgia, and that any conceivable end-game in Congress would involve bargaining with southern Republicans who won’t vote for a South-only VRA but might accept a framework that is more even-handed. Absent that kind of legislative craftsmanship, voting rights advocates will be left with impassioned but vague appeals to avoid turning back the clock that won’t purchase much in an ideologically gridlocked Congress.

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