SCOTUS’ Voting Rights ruling has little immediate impact on La.
1st July 2013 · 0 Comments
By Christopher Tidmore
The ending of parts of the 1965 Voting Rights Act is good news for Louisiana Democrats. It will also have little impact on African American-majority districts from Congress all the way down, save that it will continue to force Southern Black elected officials into a strange marriage of convenience with conservative Republicans.
What the SCOTUS ruling does not spell is doom for Black-majority seats in Louisiana, or throughout most of the South, from the Councilmanic level upwards. It just effectively ends the ability of the U.S. Department of Justice to compel their creation, racial density, or design. Nor will the DOJ be able to block implementation of voter ID laws, measures whose critics claim disenfranchise African-Americans, but who’s supporters defend as vital to honest elections.
On Wednesday, the U.S. Supreme Court, in a 5-4 split, found Section 4 of the Voting Rights Act unconstitutional, and suspended Section 5, ruling that the formula by which states, counties, and localities are selected for pre-clearance of all changes to election laws and procedures by the Justice Department is based on outdated data.
Only 16 states were subject to the VRA, a problem that the Supreme Court said Congress should have addressed when it reauthorized the legislation in 2006. The court did not say requiring preclearance is itself unconstitutional — only that Congress cannot base the requirement on the same formula unaltered since 1972.
“Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions,” Chief Justice John Roberts wrote in the majority opinion. “The 15 Amendment is not designed to punish for the past. Its purpose is to ensure a better future. To serve that purpose, Congress — if it is to divide the States — must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions.”
Supporters of the civil rights law have already argued that a decision striking down the pre-clearance requirement would amount to judicial activism, citing the broad bipartisan support for the provision in Congress.
Justice Antonin Scalia turned heads during oral arguments in the case with his comment that Congress reauthorized the Voting Rights Act only due to “a phenomenon that is called perpetuation of racial entitlement.”
His opinion drew the furor of the Congressional Black Caucus members — as well as some of the court’s more liberal justices — who argued that equal access to the polls is indeed an entitlement, and that Congress’s broad bipartisan support for the Voting Rights Act stands as a reason for the court to preserve it, not a sign that part of it needed to be struck down.
The court’s decision was limited to the pre-clearance requirement and did not affect other provisions of the Voting Rights Act, which also include a mechanism to challenge changes in voting procedures after they have happened.
Still, that proved little solace to Justice Ruth Bader Ginsburg in her dissent. “The sad irony of today’s decision lies in its utter failure to grasp why the [Voting Rights Act] has proven effective… Throwing out pre-clearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet . .
President Obama agreed stating shortly after the ruling, “”For nearly 50 years, the Voting Rights Act — enacted and repeatedly renewed by wide bipartisan majorities in Congress — has helped secure the right to vote for millions of Americans. Today’s decision invalidating one of its core provisions upsets decades of well-established practices that help make sure voting is fair, especially in places where voting discrimination has been historically prevalent.”
“As a nation, we’ve made a great deal of progress towards guaranteeing every American the right to vote. But, as the Supreme Court recognized, voting discrimination still exists. And while today’s decision is a setback, it doesn’t represent the end of our efforts to end voting discrimination. I am calling on Congress to pass legislation to ensure every American has equal access to the polls. My Administration will continue to do everything in its power to ensure a fair and equal voting process.”
Noting the pre-clearance provisions of Section 5 remained in force should the House and the Senate devise a new formula, the President called upon Congress to “move swiftly in a bipartisan fashion to ensure that adequate voting right protection is restored.”
However, the need to seek Washington’s approval for election changes struck former Democratic State Senator, Secretary of State (and later Insurance Commissioner) Jim Brown as pointless. “The federal restrictions are a waste of time and money. I served as Louisiana’s chief elections officer in the 1980’s, all part of my job as the elected Secretary of State. During that time, there was not one case were elections officials were involved in any questionable activity that compromised the elections process. Not one. I had personally discussed this burdensome process with all five Secretaries’ of State who followed me in office, including current incumbent Tom Schedler, and each confirmed that there were no complaints of voting violations filed with the Justice Department. So what we have in Louisiana is a situation where there are no problems, no election barriers, and no discrimination, just a burdensome federal bureaucracy to deal with.”
“Certainly there were problems of voter discrimination throughout the south back in the 1960s. And there is a basis for the federal government to intercede when barriers are set up to keep certain groups from voting. The 15th Amendment to the U.S. Constitution, ratified five years after the Civil War, guarantees the right to vote regardless of “race, color, or previous condition of servitude,” and grants congress the enforcement power. That didn’t stop a number of states, in both the north and south, to put up road blocks that included literacy tests, character requirements and other pretexts to keep primarily African Americans from voting. And Louisiana was as creative as any other state in either prohibiting or controlling the voting of minorities. Thus, the Civil Rights Act of 1965.”
“But it’s a different world in the Bayou State today, where black and white voting registration rates are virtually identical. 30.6 percent of Louisiana’s population is Black, but African Americans make up 31 percent of total registered voters. Of Louisiana’s five largest cities, four have black mayors including, Baton Rouge and Shreveport. Yet by keeping Louisiana restricted with the egregious voting rights provisions, Congress made a finding that the sovereign dignity of Louisiana is less than that of the majority of other states.”
The Practical Impact on the Pelican State
A revised Congressional formula for Section 5 would have to include DOJ pre-clearance covering every state in the Union, argued several Congressional Republicans. Otherwise, the South remains unfairly targeted. Since half of the U.S. House GOP delegation hails from states that compromised the Old Confederacy, the Hastert rule will probably kill any reauthorization of the VRA. What remained unspoken by many Democrats in the wake of the SCOTUS ruling, though, particularly those Dems from the Northeast, was a firm opposition in their caucus to any form of national pre-clearance.
Since pre-clearance has already had that effect on Louisiana politics, of creating strong minority seats, any major reducing in the number of Black majority legislative districts are equally unlikely. Republicans here would not stand for out of simple, self-interested survival.
Put another way, thanks to Section 5, Pelican State Republicans have been the direct beneficiaries of the creation of African American-majority districts, on the legislative and Congressional levels. The packing of Supermajorities helped pave the way to killing the white Southern Democratic seat. Or at least, the creation of districts that a white Democrat could win. Packing African-Americans in to districts proven the pathway to Republican majorities in the State House and Senate, and possession of every LA Congressional seat except the Black majority New Orleans Second District.
Clint Bolick, director of litigation for the conservative Goldwater Institute in Arizona, expressed hope that the demise of Section 5 of the Voting Rights Act will reduce this “balkanization of racial gerrymandering” that has become so popular lately. “Voting districts drawn on racial or ethnic lines divide Americans,” he said. “This decision helps move us toward the day in which racial gerrymandering becomes a relic of the past.”
But, ending racial gerrymandering would be as foolish a choice for local GOP leaders as it would for Black Caucus members. It would be suicidal to both, as each seeks to secure the re-election of their members to the legislature and Capitol Hill. In the current political environment in Louisiana, creating swing districts where white Democrats could be competitive would no more occur to local Republicans — fearful of losing their hard-won, relatively recent legislative dominance–than it would to suffer the media condemnation of being labeled racists in an effort to end Black majority seats.
It is in the GOP’s self-interest to keep Black majority seats in existence, meaning in practical terms, the loss of pre-clearance will have little effect in any redistricting efforts before or after the 2020 census.
Only a few seats will feel the impact of the loss of pre-clearance, and ironically, whites in New Orleans will likely pay the price of losing the VRA’s protections.
Last year, voters amended the Orleans City Charter to allow Parish At-Large Council seats to be voted upon in two separate elections, instead all the candidates running together in a single jungle primary. As a result, the previous ability to win one, or both, of the At-Large seats in the open primary with just 25 percent of the vote, has been eliminated. For sure, now, that Justice Department pre-clearance is no longer necessary.
The proportional representation created by letting all of the candidates run together, and a loyal minority helping advance the two top finishers, was a system first devised to empower racial minorities. Originally in Caucasian-majority New Orleans, it was supposed to make it easier for the Black community to elect a citywide councilperson. When the city evolved into an African American-majority electorate, it served the purpose of aiding the white minority.
Except that in recent years, as the overall Black population proportionately reduced, Black candidates failed to win, despite their constituents numeric advantage. Two white At-Large Councilpersons were elected for several cycles, post-Katrina (and post-Oliver Thomas). Transitioning to two separate elections, where a majority of voters would decide the each Councilman (as is done in Jefferson Parish) was seen as the solution to electing African-American councilpersons in Black majority Orleans.
Yet, some critics of the reform had petitioned the U.S. Justice Department to block the reform under Section 5 pre-clearance as discriminatory to the city’s white minority. With Section 5 gone, the At-Large seats look to be voted upon under the new system in next year’s winter municipal elections.
In some places, certain White Democratic seats may also survive beyond the next redistricting, should their incumbent members remain in office. Under Section 5’s mandates that number of African-American seats reflect the overall racial balance of the population, they might have lost the contours of their districts after 2020.
State House seats like those held by Democrats Helena Moreno, Walt Leger III, and Neil Abramson, arching through New Orleans’ increasingly gentrified Uptown and Downtown were nearly gutted in the last redistricting in order to save a Jefferson Republican seat and an Orleans African-American legislative district.
A deal between Black Caucus leaders and the House GOP leadership to create another Black majority seat in exchange for drawing then-Rep. John Labruzzo’s Old Metairie seat into Uptown (along with refashioning the seats of his fellow GOP Reps. Nick Larusso and Cameron Henry to cross the 17th Street Canal) barely fell apart in the waning days of the 2011 legislative session. The aforementioned white Democrats kept their seats as a result, and the district lines of Uptown were subsequently drawn in a fashion that had some consideration for the geography of the area.
As Black leaders emerged from the SCOTUS ruling believing that the end of DOJ pre-clearance will spawn further “disenfranchising” voter ID laws, the data does seem to suggest that these laws have had just the opposite effect—mainly because the Black electorate grew so angry over their passage, that they were more motivated to vote on election day.
Surveys of the last few election cycles have noted that exactly the sort of voter ID laws Obama’s Justice Department has been waging war against have not demonstrably reduced minority voting in the areas where they have been implemented. Some have explained the increased minority vote in some of these states as an angry response against the voter ID laws themselves. Nevertheless, voter attendance has not decreased. In fact, in the era of Obama, African Americans now vote at levels on or above white voter participation–which was the aim of the 1965 Voting Rights Act in the first place.
That much of the motivation comes from both the re-election of a Black president, and defense of the equal access law itself, seems an ironic, if reassuring, serendipity.
This article originally published in the July 1, 2013 print edition of The Louisiana Weekly newspaper.