Point of View

Voting Rights Act: Conservatives trying to have it both ways

March 2, 2013 

It’s been a week of big events in the voting rights world, and I’ve been privileged enough to witness much of it first-hand.

On Wednesday, the U.S. Supreme Court heard oral arguments in Shelby County v. Holder, a case challenging the constitutionality of Section 5 of the Voting Rights Act. Even Justice Samuel Alito has acknowledged that this law is “one of the most successful statutes that Congress passed in the 20th century and one could probably go farther than that.”

And earlier in the week, a three-judge panel of North Carolina state judges heard oral arguments in the case challenging the constitutionality of the state legislative and congressional redistricting plans enacted by the General Assembly in 2011.

Listening to discussion of the Voting Rights Act in both cases, I was struck by contrasts between the arguments advanced by lawyers for Republicans in the North Carolina case and what the conservative justices were concerned with the Shelby case.

Section 5 of the Voting Rights Act requires certain parts of the country (including 40 of North Carolina’s 100 counties) to get pre-approval before making any changes to voting laws, including redistricting plans. The differences are more than a little ironic.

For example, Justice Antonin Scalia railed, offensively to my ear, against “perpetual racial entitlements,” worrying that the Voting Rights Act might forever mandate that “certain districts … are black districts by law.”

But voters of color in North Carolina are the ones now fighting Scalia’s fight – they don’t want or need a map of just “black districts” and “white districts.” They consistently argued in favor of building on the progress they’ve made in creating successful multi-racial coalitions. They repeatedly asked Bob Rucho and David Lewis, Republican chairmen of state legislative committees on redistricting, not to be shoved into “black districts” when they’ve proven that black candidates can win in districts that are not majority black.

It’s the General Assembly’s 2011 maps that perfected the brand of racial entrenchment that Scalia finds distasteful.

Similarly, the Supreme Court conservatives posed sharp questions about the need for Congress to develop evidence that established the specific record of racial discrimination in each state subject to Section 5. They suggested that it was important not to lump states together in assessing whether a voting rights remedy remained necessary.

Yet the Republicans in North Carolina did the very thing that the conservatives on the court decried – repeatedly, they blithely declared that the presence of a few instances of racially polarized voting anywhere in the state (some dating back 30 years ago) meant that communities all across the state were discriminating today and needed to be controlled by federal rules. If an individualized assessment is necessary anywhere in this country, it seems most appropriate in a state with fewer than half its counties subject to special voting rights protections.

Finally, the presentations by the General Assembly earlier last week made it clear that their motivation was all about race, to an extent that I’m sure Scalia and other conservative justices would dislike. The North Carolina map-drawers stated quotas for the number of black districts they were going to draw.

The prior State House plans had eight out of 120 total districts in which black voters constituted a majority. Their new plan upped the number to 24. The prior State Senate plan had not one district in which black voters constituted a majority. The Republican plan has nine. In these earlier plans, black candidates were consistently winning – and by huge margins.

Several of the Republican maps displayed at the hearing showed district lines very carefully reaching out in bizarre, monstrous configurations just to grab pockets of black voters.

To justify this race-laden mapping, something the Supreme Court specifically outlawed in the 1990s, lawyers for the state explicitly said that the Voting Rights Act required them to draw as many “black districts” as they could.

If you were listening to the conservatives in D.C. on Wednesday, you’d think black voters were using Section 5 to demand majority-black districts left and right. Yet if you heard the Republicans tell it in North Carolina on Monday and Tuesday, you’d think the Voting Rights Act required a redistricting plan with as many “black districts” as possible, even when black voters explicitly say that approach does not make sense.

This kind of reasoning is more than a little contradictory. The U.S. Supreme Court rightly expects that the application of Voting Rights Act remedies will become infrequent as discrimination diminishes, yet Republicans in North Carolina want to maximize its use, to the constitutional limit, and seemingly beyond.

The Voting Rights Act remains one of the most important and successful pieces of legislation Congress has ever enacted, and its critical work is not yet completed. The U.S. Supreme Court should defer to Congress’ 2006 determination that it is still necessary in some parts of the country and uphold the law.

What will eventually make the Voting Rights Act unnecessary are the multiracial coalitions, like those here in North Carolina, that incorporate the voices of white and black voters. Whatever it means to be conservative these days, it cannot at once allow you to decry the Voting Rights Act and at the same time cynically segregate voters by race. Yet that’s precisely what the map drawers of the 2011 North Carolina redistricting plans did.

Kareem Crayton, J.D., Ph.D., is an associate professor in the UNC-Chapel Hill School of Law.

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