Mon 9 Mar, 2009
Tags: Civil rights, Racial discrimination, U.S. Supreme Court, Voting Rights Act
In a split decision, the U.S. Supreme Court today limited an important protection provided by federal voting rights law, ruling that election districts benefiting racial minorities are only protected if the minority in question comprises a majority of the entire voting-age population of the district.
The Voting Rights Act of 1965, a key piece of federal civil rights legislation,contains an “anti-dilution” provision in section 2 which protects legislative districts formed to benefit racial minorities. This is justified as a remedy for groups which have less opportunity than others to participate in the electoral process and to elect their preferred candidates.
At issue was a proposed election district in North Carolina in which blacks would make up 39% of the voting-age population. This was intended to be a “cross-over” district, in which black voters would be able to elect their preferred candidates with support from some white voters. Local officials, defending the district against a claim that it violated the state’s constitution, argued that the creation of the district was required as a remedy under the anti-dilution provision.
Only three of the Court’s nine justices agreed with the majority opinion, written by Justice Kennedy, which held that the Voting Rights Act protects the right of racial minorities to elect their preferred candidates, not to form coalitions to elect compromise candidates. The other two votes came from justices who argued that remedies for vote dilution are inappropriate under any circumstances, and therefore agreed only with the result.
The broader issue at stake in Bartlett v. Strickland was how minority voting rights should be protected without encouraging racially polarized voting, in an age in which blacks and other racial minorities are playing increasingly prominent roles in state and national politics. This debate, in turn, echoes the present conversation in American public life about whether Barack Obama’s election, and other developments on race, have fundamentally changed the problem of race in the U.S., or have even moved us into a “post-racial” environment.
On this broader issue, Justice Kennedy wrote that, “Racial discrimination and racially polarized voting are not ancient history.” However, he said, the Voting Rights Act is intended to “hasten the waning of racism in American politics,” and not to “entrench racial differences.” As a result, he favored a strict, mathematical threshold of 50% in order to keep the courts from having to inquire even more deeply into race and race-based assumptions in deciding cases based on this remedy.
Justice Souter reached a very different conclusion, writing for the four dissenters, when he argued that the impact of the decision would be to further polarize politics by race. States will be required, he said, “to pack black voters into additional majority-minority districts, contracting the number of districts where racial minorities are having success in transcending racial divisions.” In other words, this decision, he wrote, “has done all it can to force the states to perpetuate racially concentrated districts, the quintessential manifestations of race consciousness in American politics.”
There is substantial debate about the practical effect of this decision. The question is whether it will, in practice, reduce the number of election districts in which racial minorities play a central role.
There is also a more fundamental case before the Court this term on the Voting Rights Act, in which the justices will consider whether jurisdictions must continue to seek federal authorization to change how voting is conducted when they have a history of racial discrimination. Justice Kennedy’s comments are already being interpreted as suggesting that he would be likely to uphold such restrictions, favoring instead only gradual changes to the implementation of the Voting Rights Act.