The Supreme Court may be on the verge of striking down Section 5 of the Voting Rights Act, which mandates federal approval, or “pre-clearance”, of any changes to election procedures in states under the Act’s jurisdiction (mostly Southern, but some scattered northern jurisdictions, primarily in New York). It could be a mixed triumph for conservatives—a blow against a regionally discriminatory rule of law that limits Virginia and South Carolina from passing statutes that are perfectly legal in Kansas and Indiana—but a victory that will only fuel the impression that the political right is bent on suppressing minority voters.
Conservative legal activists would have been better advised to concentrate on doing away with or revamping the other elements of the Act that actually do much more damage to the proposition of a color-blind politics. Ending Section 5 would be explosive, and still won’t alter the Act’s evolution from an instrument of black voter participation in the South to a prescription for rigged districts that look exactly like spoils and quotas.
The VRA is a textbook of generally worded terms that subsequent courts and career bureaucrats have reshaped. It’s entirely appropriate command that covered states refrain from passing election laws that discriminate against their minority citizens has been swollen into a requirement that minorities be aggregated into legislative and congressional districts that are overwhelmingly dominated by their race. Even a slight rollback of the percentages, say, from 65 percent to 58 percent is prohibited on the theory that such a contraction “dilutes” the minority vote.
The effect is that in the Deep South, black voters influence politics solely inside their centers of gerrymandered influence: the numbers that remain elsewhere are not substantial enough to create authentic swing districts where Republicans might have to seek black support to win. In the same vein, the nature of nearly seventy percent black districts is that their elected officials are just as un-tethered from the need to build coalitions with conservative white voters.
Not surprisingly, black Democrats and southern Republicans have not complained. The South that results is the single most racially polarized electorate in the country and its African American politicians are hemmed into a race-conscious liberalism that marginalizes them statewide. In addition, more conservative black Democrats and Black Republicans are rendered unelectable in minority districts that leave no room for a non-liberal brand of candidate.
Conservatives ought to recoil from an anti-discrimination principle shifting into a mini political apartheid. Rather than condone a de facto spoils system, they should be trying to undo an arrangement that is more bent on electing a certain kind of black politician than on empowering blacks to engage the democratic process.
This article originally appeared on ricochet.com on February 27, 2013.