I never expected to write what follows, but Judge Thomas Schroeder’s obtuse opinion in the North Carolina voting rights case has amplified and underscored the crime – yes, crime – committed by the U.S. Supreme Court two years ago.
That infraction, little noticed and much minimized, licensed partisan bodies in the South – none more blatantly than the N.C. General Assembly – to narrow the voting franchise with impunity. There has been nothing quite like it hereabouts since conservative (read, racist) Democrats overthrew Fusionist rule and instituted a literacy test for voting more than a century ago.
Here, by way of amplification, I must cite a personal memory of which I wrote in a recent personal memoir. During my 28 years as a journalist in Washington, I was happy to become good friends with the late Justice Lewis Powell Jr. I wrote about that friendship in a chapter titled, “A Friend at the Court,” and Powell was a friend in every sense. He gladly explained to me the technicalities of any actions by the court when they had been taken. His lips were sealed on most matters still sub judice (“in the bosom of the court,” in the quaint phrase), with only occasional exceptions.
One such exception was his acute misgivings about a critical provision of the 1965 Voting Rights Act, then up for congressional and possible judicial review. It was known as “pre-clearance.” It mandated that any change in voting provisions, state or local, in nine Southern states that had maintained Jim Crow discrimination and were therefore under Voting Rights Act jurisdiction must be cleared for fairness by the Justice Department in Washington. It was much resented, but so far as I know it was enforced with impartial equity.
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I sensed in our discussions that a part of Powell’s restlessness stemmed from his deep-rooted loyalty to his Virginia roots. I sympathized. I regarded myself likewise as a Southern loyalist. But ultimately, his sense of constitutional propriety and fair play overrode his misgivings.
It is too bad that no justice of Powell’s judiciousness, or sense of history or fairplay, remained in the Supreme Court majority when the pre-clearance provision of the Voting Rights Act was unceremoniously discarded. The act of cancellation came in pseudo-conservative dress, but it was anything but conservative. In fact, the scrapping of that crucial provision released, and instigated, a carnival of partisan legislation here in North Carolina, patently designed to impede and intimidate “minority” voting and reinforce the neo-Republican rule.
For my native Greensboro, for instance, the last legislative session brought a retreat from a wholesome change in the distribution of city council seats in the 1970s: the dilution of all-district voting by several “at large” seats open to minority representation. Though otherwise explained, the Jim Crow and partisan intent of the limitation of at-large districts was transparent. And shameful.
One and all, these changes in state and local law would have been closely scrutinized by the Justice Department, in pre-clearance, and probably disallowed.
In upholding the recent monkey business in voter-eligibility requirements and procedures, Judge Schroeder, a George W. Bush appointee, wrote with wonderful obtuseness: “In North Carolina’s recent history ... certainly for the last quarter-century, there is little official discrimination to consider.” Which raises the question of what the weasel words “little” and “official” mean in context. My own judgment is that Schroeder must occupy a noiseless and newsless cocoon.
The Fourth Circuit, to which his decision will be appealed, may or may not reverse his decision. What the higher court cannot do under the rule of stare decisis is reverse its superior body in Washington and restore the pre-clearance provision to the federal statute books.
There is a persistent illusion, which knows no regional boundaries, that the U.S. has thrown off the old curse of racial prejudice and discrimination. No doubt there has been vast improvement, but it requires a special blindness, especially in judges, to assume that the old and hard-won legal protections can be unwarily trashed – as the N.C. General Assembly is now blithely trashing them. My suspicion, I regret to say, is that some of the legislature’s leading GOP imports from other regions share this illusion. These new carpetbaggers – pardon my French – came late to the vineyard, and, as we say now, they don’t get it.
Edwin M. Yoder of Chapel Hill is a former editor and columnist in Washington.