|Julius Malema, via Wikimedia. The sad product of a racialist polity.|
A key pillar of American civil rights law is now in danger of being nullified by the Supreme Court.
Shelby County, Alabama, is seeking to have Section 5 of the Voting Rights Act, the law that first guaranteed the right of blacks in the South to vote, declared unconstitutional. Section 5 forces areas of the country with a history of discrimination—mostly, but not entirely in the South—to ask the Department of Justice for its approval before making any changes to election rules. The DOJ is then supposed to ensure any changes protect Americans’ voting rights. The law has a provision allowing jurisdictions to “bail out,” but conservatives have repeatedly challeged the law as unconstitutional federal overreach that is no longer necessary because America has transcended its history of racial discrimination.
This has been a festering problem in American democracy for some time now. We have constitutional amendments protecting voters from disenfranchisement based on race, sex, age, and non-payment of poll taxes, but no actual affirmative right to vote. This was actually noted in the Bush vs. Gore decision.
The text of a voting rights amendment could be simple, along the lines of other voting rights amendments:
Section 1. The right to vote of citizens of the United States, who are eighteen years of age or older, shall not be denied or abridged by the United States or by any State.
Section 2. The Congress shall have the power to enforce this article by appropriate legislation.
One could obviously find some partisan grounds to support this, like beating back the voter ID movement or the huge number of African Americans who have lost voting rights on felony disenfranchisement rules. But I think, aside from the obvious civil rights angle, it should also be a measure for the health of the democracy.
Right now the conservative movement looks to be at a watershed. More than ninety percent of Mitt Romney’s voters were white, and he was crushed among all minorities. With the demographic growth of minorities, their electoral disadvantage will only grow. Down one road they could do the long, laborious work of purging their party of white nationalist rhetoric and trying to build a party open to all people. Some of the most prominent conservative leaders seem to be exploring this option—even Sean Hannity has come out in support of immigration reform.
But down another they could look at overwhelming support of Democrats among minorities and simply conclude that they must be disenfranchised. They tried this to a large degree in this election. As Serwer notes:
A cursory review of recent Republican shenanigans with voting rules should put the notion that the VRA is obsolete entirely to bed. With voting growing more racially polarized, the temptations to alter voting rules to disenfranchise particular constituencies is obvious. Indeed, the Department of Justice successfully challenged Texas’ redistricting map because it diluted the voting power of Latinos. If the court strikes Section 5 down, one of the most effective and important powers the federal government has for ensuring that the right to vote is not abridged on the basis of race will be destroyed.
The nature of a two-party system is such that eventually the Republicans will be back in power. If (enabled by the Supreme Court) they indulge their worst instincts and attempt race-based disenfranchisement, it will only worsen the racial divide and make politics even more tribal than today. On the other hand, if the right to vote is placed beyond reach, and Republicans must compete on a level playing field, they will be powerfully incentivized to clean their house of the Kauses and Limbaughs.
When I lived in South Africa (where blacks mostly support the African National Congress while whites and everyone else mostly supports the Democratic Alliance) I saw the way racialist voting (the ANC has won every election since 1994 in a black-rooted landslide) poisoned the discourse, led to galloping corruption, and made good governance nearly impossible. Our discourse, as hysterical and dumb as it can be, is at least directed in the general vicinity of policy. It ought to stay that way.
See here for more.