"Whiteness of Whiteness" Resists The Voting Rights Act

This article originally appeared in The Nevada View

The United States Supreme Court has begun hearing oral arguments in the case Shelby County v. Holder, which examines the constitutionality of Section 5 of the Voting Rights Act.  Section 5 requires a process called “pre-clearance,” whereby a panel of judges determines whether a state’s change in voting standards is fair before the state can enact the new standards.  The VRA’s purpose in history was to combat any unjust voting regulations that would prevent minorities from exercising their right to vote.

Understanding the history behind the Voting Rights Act is imperative, as the statute's historical background lends credence to maintaining Section 5’s protections.  From the late 19th to early 20th century, Southern states made grave attempts to prevent—or at least dilute—the minority vote by writing new voting regulations into their constitutions.  Measures such as poll taxes, which required monetary contribution as a prerequisite to voting, kept poor minorities (and especially African-Americans) from having a vote. Poll taxes remained common practice in many parts of the South even though Congress had declared African-Americans equal under the 14th Amendment.  Another subtle, yet offensive, attempt to block the minority vote were literacy tests. Provisions for these tests sometimes contained exceptions called "grandfather clauses," which allowed one to vote if his ancestors had possessed voting rights prior to the Civil War.  Grandfather clauses created more opportunities for whites to vote, while simultaneously disenfranchising African-Americans’ ability to vote.  Put simply, Southern states were finding ways to skirt the new legal reality of equality.

It was not until 1965 when the Voting Rights Act was presented to Congress and subsequently signed into law by President Lyndon B. Johnson that these practices were curtailed. Included in the Voting Rights Act was Section 5’s so-called “pre-clearance” provision, a necessary historical tool used to strike down poll taxes and other hindering practices which Southern states had engineered to suppress the minority vote.  Section 5 was intended to provide retroactive protection against known means of voter suppression while ensuring future protection against new means not yet conceived.

Modern forms of voter suppression are more sophisticated than those used before the enaction of the VRA. Rather than explicitly requiring money or passage of a literacy test, state and local governments now employ elusive measures to suppress voter rights. Before the last presidential election, Ohio and Wisconsin had billboard advertisements dotting the freeways which read, “Voter Fraud is a Felony” in an effort to intimidate people.  New voter ID requirements (such as those in Pennsylvania) sought to hinder discreetly those  for whom access to identification was problematic, either because they could not afford it, could not find time in their work schedules to apply for it, or could not secure the transportation necessary to obtain it.  Long lines made voting in the 2012 presidential election a waiting game for youth and elderly citizens, forcing them to endure standing in line up to six hours in some states. Fortunately, Section 5 came to the rescue of many in 2012, as the Department of Justice struck down suppression of votes in states like Florida, Texas, and South Carolina.

Now, after all the attempts to block certain demographics from voting in the most recent presidential election, the Supreme Court is hearing a case which would effectively make those obstructionist policies easier to implement.  During oral arguments, Justice Scalia seemed to ignore the historical evidence, and excused the issue altogether by referring to the Voting Rights Act as “a perpetuation of racial entitlement.” A self-declared constitutional “texualist,” Scalia appears now to be taking on the sociologist’s role of determining whether racism is still a valid problem in contemporary America.

Justice Roberts, too, has voiced an outlook which has dangerous implications for the visibility of race in America.  He has argued that Americans should be colorblind, with society seeing no differences in color.  While this sounds like it would eliminate issues of racial discrimination by encouraging people not to see differences in race, Roberts’ position actually ignores the history of racial hardships in this country. That history is the reason why Congress has enacted provisions to protect minorities.  Justice Roberts has fallen victim to what author Jane Lazarre has called the “whiteness of whiteness,” a phrase that condemns “that terrible and inexcusable ignorance of racism which denies history and reality.”  Lazarre’s first "whiteness" refers to the kind of cultural blindness which permits her second “whiteness”—lack of understanding about the historical black struggle.  Perhaps Justice Roberts means well by attempting race-neutral colorblindness; however, his position ignores the devastating racism which still persists throughout America today. Colorblindness threatens to underestimate the need for laws such as the Voting Rights Act.

The Supreme Court’s uncertainty about the Voting Rights Act’s place in society today is troubling.  What could be the motive behind eliminating a democratic protection which ensures equal access to voting?  Even Congress, who cannot seem to agree on most anything, has demonstrated bipartisan support for renewing the law. In fact, they have reauthorized the VRA on four separate occasions—in 1970, 1975, 1982, and 2006—each time by a Republican president.  The most recent re-authorization in 2006, signed by President Bush, passed in the Senate on a vote of 98-0 and in the House on a vote of 390-33.

Despite the overwhelming bipartisan recognition of the Voting Rights Act’s value, Shelby County in Alabama persists in challenging the law's constitutionality.  Shelby offers several arguments in opposition to the law, each of which seems to deny the reality of voter suppression.

First, the county argues that the “current burdens” of the law (pre-clearance) must show “current needs,” such as contemporary discrimination.  But one need not look any further than the over 100 voter suppression laws nationwide that were introduced in 2012 to see the current need.  Gerrymandering, voter ID bills, and restrictions on early voting present more than enough evidence to demonstrate current needs.  Shelby County argues that whatever degree of voter suppression exists, it is not reflective of huge differences between Northern and Southern states--the sorts of differences that justified the pre-clearance requirement in the first place.  But the county itself was not allowed to avail itself of the bail-out option. This, combined with widespread suppression in other states, suggests that the need for keeping Section 5 in place is timely. Evidence like the kind in Shelby convinced an overwhelming  number of members in Congress to renew the provision in 2006, and as recently as 2012, Section 5 was used by Attorney General Holder to strike down new attempts at voter suppression.

Secondly, the plaintiffs argue that evidence of historical discrimination is not evidence of discrimination today.  This is a fair argument; except, Alabama still sits at second place on the list of Section 5 enforcement states, as Justice Kagan noted during oral arguments. This fact, combined with the number of voter suppression attempts around the country just a few months ago, seems reasonable evidence of current discrimination. In the 1960s, Congress tried to draw a line about where stronger voter protection was needed, which suggests that avoiding racial discrimination was considered more important than ensuring equal state sovereignty. Even if only specific counties within states were targeted, Section 5’s pre-clearance requirements do threaten to undermine equal state sovereignty on the surface. But U.S. citizens are both state citizens and federal citizens, and voting power is a constitutionally protected activity discussed in the 14th, 15th, 17th, 19th, 23rd, 24th, and 26th Amendments. Viewed from the perspective of the Constitution, voting is a federal activity, instrumental to a system of federalism. The Executive Branch of the federal government therefore has the right to ensure equal access to a democratic principle which the Legislative Branch took the trouble of drafting seven constitutional amendments in order to protect.

Finally, Shelby County asserts that even if there is discrimination demonstrated today, the formula for determining which states must comply with Section 5 is unconstitutional because the voter data the VRA uses is from 1972. But while the provision does use old data, this does not discount the fact that the targeted states still demonstrate restrictive voting practices as they did when the VRA was signed into law almost fifty years ago.  More convincingly, Section 4 contains a “bailout” option in which covered jurisdictions (such as Shelby County) may apply for an exemption from pre-clearance.  The targeted jurisdiction must demonstrate a consistent record of nondiscrimination for ten years in order for a judge to grant the bailout.  So it seems the easiest route for Shelby County to take—and the most just—is not to challenge a national protection for minority voter rights. Rather, Shelby County—and all other counties targeted by Section 5—should simply demonstrate nondiscriminatory practices in their own localities.  This would mean refraining from voter intimidation, discontinuing racist gerrymandering, and allowing the democratic convenience of early voting opportunities in an effort to encourage low income individuals and minorities to vote.  Put simply, Shelby County may easily earn their way out of pre-clearance by committing to practicing the fair voting schemes which the Constitution hoped to protect—in seven separate Amendments.

Section 5 and the pre-clearance it requires should not be viewed as an extra burden with which Southern states must comply.  Pre-clearance is a historical protection that is still used today to combat the contemporary racism which permeates American society.  As a democratic society that values equality, America must not become complacent in its view toward racism; the “whiteness of whiteness” should not become a norm used to guide policy-making.  Striking down Section 5 of the Voting Rights Act is to ignore the nation’s history of racism, which echoes throughout current attempts to disempower minorities by denying them access to the vote.

 With additional reporting by Gigi Generaux.

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