The Latest Attack on Voting Rights

By Alex Willingham

Vol. 17, No. 3-4, 1995 pp. 3-5, 13

In the past two years, decisions by the U. S. Supreme Court have voided congressional election systems in Georgia and threatened those in other states including North Carolina, California, Louisiana, and Texas. These decisions testify to the latest round of American racial conflict. They respond to opposition by whites to state district plans, drawn after the 1990 census, that promote the election of racial minorities protected under the federal Voting Rights Act. Civil rights groups and minorities had argued successfully that the Act required state officials to consider race and to maximize minority-race districts. Many did, and bitter complaints came from white voters. This resistance has now been consummated by the Court's decisions in two closely watched opinions, Shaw v. Reno (North Carolina) and Miller v. Johnson (Georgia) , resulting in the most serious attack on voting rights in more than a decade.

The situation created by the Court's opinions has effects on equity as well as hard political implications. Respecting equity, these opinions represent a major challenge to organizations working on franchise issues particularly where that work seeks to guarantee access to a meaningful ballot for minorities. Politically, the decisions could have a major impact on the make-up of Congress and state legislatures which have crucial roles in setting the nation's public policies. The current attack on minority voting rights is remarkable for the dogged persistence of those opposed to fair representation in politics. The attack is remarkable, too, coming at a time when blacks and others covered by federal voting law are finding it difficult to mobilize their communities for an effective politics.

This is not the first effort to weaken the Voting Rights Act which became law in 1965. The government has revisited the Act several times for extension and amend-


Page 4

ment. On each occasion, coordinated drives were made to limit the Act's impact. In 1982 and in 1992, reconsideration involved reenactment of crucial provisions concerning the pre-clearance process of Section 5 and the cover-age of language minorities.

The Act was also amended in 1982. This was made necessary by a restrictive Supreme Court decision in Mobile v. Bolden. In that decision, the Court had restricted the reach of the Act, based on its interpretation of what the law meant--had Congress intended to disallow those election devices that operated in a discriminatory way or merely those purposefully designed to discriminate? The amendment made clear that the law was to apply to those situations where election devices operated to discriminate against racial minorities, thus limiting the need to inquire about intent.

Restricted Debate

Through the 1960s and 1970s, much of the contention over voting rights had to do with decisions about whether systems of election (at-large or multi-member) were discriminatory. By the 1990 round of redistricting, the focus of contention had shifted to aligning districts in single-member systems. The effect was to direct attention to the design of district lines, heightening anxiety about the prospect of minority "racial gerrymandering." This subtle shift in the mechanism of reform had the consequence of highlighting the intentions of the reformers--as opposed to the intentions of the creators of the racially tainted at-large systems in disrepute.

In prior encounters over provisions of the Act, minorities mobilized the civil rights community to make effective appeals, either to convince the Congress to clarify its meaning or to litigate persuasive arguments before the Court. Accordingly, opponents of the Act were rebuffed and, because of that, one can find some reason to be optimistic in the current period. Recalling those efforts, however, should not minimize the peculiar challenge presented this time around.

The situation since the 1993 Shaw decision, while similar, is really much more troubling. Now, the terms of discussion set by the Court's opinions severely restrict the realm of debate. Racial motive is used as a dominant criterion of decision and its application to election reforms--and certainly its application as the sole consideration in redistricting--is deemed inappropriate even when used for demonstrably benign ends.

The Court's rulings also restrict the arena of decision-making about reforms by shifting to an interpretive process centered in the Court itself. The effect is to


Page 5

remove the issue from the political process, insulating it in the purview of the judiciary. As such, even the partial victory I would claim minorities scored in Miller (i.e. the move away from reliance on geographic shape), feeds the restrictive process by removing what appeared, despite its many problems, as an objective standard in principle.

The current attack on voting rights then, is a shrewd response by an ideological and politicized majority on the Court. The Court has placed itself in the pivotal position by structuring debate to close off political avenues. Its calculations will block the bi-partisan alliances and spirit that have sustained support for fair representation. The Court's sense of judicial involvement on this issue contrasts sharply with its attitude in other areas where it has deferred to the political branches (at least under the Reagan and Bush presidencies). These maneuvers will make it much more difficult to respond effectively in ways similar to the past.

One effect of the Court's current utterances--and one that calls attention to the larger environment--is a language quite troubling for the way it characterizes officials elected by minority voters of the same race. Though representing itself as honestly grounded in color-blind beliefs, the Shaw argument is actually carried by images that stigmatize officials of color where there is no reason to doubt their worth and where no such aspersion is cast on majority race candidates elected by white voters! The minority race district is caricatured. It "bears an uncomfortable resemblance to political apartheid." Such language reinforces mindless assumptions about racial homogeneity. Persons elected from such a district "are more likely to believe that their primary obligation is to represent only the members of that group rather than their constituency as a whole." This is irresponsible and amounts to official stereotyping. It is not likely to have practical effects in election outcomes in communities--race voting, after all, is the condition upon which these remedies are built--but such language will serve to give sanction to backlash and authorize judgments that do not correspond with the actual public record of the elected representatives.

Chilling Comparisons

Race remains an ominous factor here, despite immersion in the idiom of a color-blind society, and the perfidy of these decisions may have less to do with actual reduction in minority representation than with how we construct the meaning of that representation. The 1990 round of redistricting actually maximized the election of minorities, but the language of Shaw and Miller, and the resulting media discourse, serves, in the face of widespread minority office holding, to keep alive the specter of race, to stigmatize aspiring public servants, and to imply a "place" for them at a lesser status than their white counterparts.

I will avoid simplistic comparisons to the overthrow of Reconstruction, but the analogy is suggestive in the direct way in which the current decisions--coming after three decades of voting work--apply to actual political power exercised by racial minorities. The removal of at-large elections and the crafting of majority-minority districts in fact account for the overwhelming number of minority persons now serving in public office at the federal and state levels. An attack on these arrangements is an attack on what power and influence minorities can enjoy. In that sense the comparison to Reconstruction is chilling.

And this comes at a time when, despite the substantial gains in levels of minority office holding, voter turnout among poor and minority populations continues to be disappointing. The low rate of voting is caused in part by well-known conditions of poverty and access. But it is also increasingly reproduced by the direct intervention of campaign organizations attuned to the imperatives of minority race mobilization. Campaign managers in a number of states resort to sophisticated racial appeals to exploit white fears. The Republican party has deployed so-called "ballot security" programs in black and brown polling precincts. In New Jersey, that tactic was supplemented by direct payments to suppress the turnout in black precincts. Harassment of minority elected officials by means which include targeted government-sponsored sting operations in Georgia, Alabama, South Carolina, and Louisiana have worked to remove effective voices.

The ability to use the vote--and to fashion a politics around it--is really the main line of defense against the rollback in government policy now being engineered by the congressional Republicans. Effective use of the franchise will be especially important in the volatile electoral alignments emerging in the late 1990s. It is clear that while New Right formations have a number of policy positions that threaten minority populations, their stance on voting policy and empowerment is just as suspect. They champion term limits and other policies that limit the exercise of official authority and interfere with the discretion of the voter, but are silent about the reduction of registration barriers. Opposition in defiance of the


Page 13

motor voter law has developed in a number of states including at least thirteen where lawsuits have been filed to force compliance.

A White Man's Country

The larger political alignment becomes crucial in thinking about the latest attack on voting rights. At its current pace, this alignment is certain to produce consolidation of a right-of-center governing elite grounded in private wealth, hostile to broad popular governance, and opportunistic with respect to personal rights. It will exercise an astute sense of the way race can be used to ignite political movement. The result is a reemergence of circumstances and forces that simply do not support equal rights. They envision a white man's country. These forces have a long history in opposition to reform. They were in strenuous opposition to the demonstrations at Selma to the Voting Rights Act itself, and to all the other efforts to redress racial inequalities.

What the country faces is hardly a minor correction on race matters. In these closing years of the twentieth century, we have before us a comprehensive and consistent ideology and an alternative politics. It is a threat to basic constitutional arrangements that affect personal liberties, including religious freedom and abortion, as well as programs that deal with opportunity for economic advancement. These touch the lives of the poor, women, racial minorities, youth, the accused, and the lower middle class.

Against this background it is clear that the U. S. Supreme Court is making a major error in the decisions on race and politics. It has interrupted a steady flow of success and interferes with full development of the potential of the representatives chosen from minority communities. It demands that the civil rights community go back and debate issues that should have been exhausted in previous decades.

The Court's invoking of white racism to rebuke meaningful thinking about race is Orwellian, unpersuasive, and reckless. It serves to summon fear and hostility at a time of unusual unrest and declining faith in public institutions. It agitates a right-wing politics that feeds on self-serving thought. To abandon minorities on the theory that we are color-blind would be tragic and ironic in the centennial year of the Atlanta Compromise, the event that consummated Jim Crow disfranchisement.

Alex Willingham teaches courses on politics and race at Williams College and is currently chair of the Highlander Center Board of Directors.