Discerning observers can reasonably conclude that nuance is an elusive, if not impossible, feature in American political life. The disintegration of our discourse has made methodical, dispassionate analysis of the important issues with which our national conscience grapples nearly inconceivable, and nowhere does this dispiriting phenomenon find a more glaring example than in our debates surrounding race.
People who advocate for an end to affirmative action will have the albatross of segregation hung around their neck. Expressing the belief that the Voting Rights Act is in need of major overhaul has become equivalent to declaring that blacks shouldn’t have the right to vote. Yet the VRA is indeed in need of a major overhaul; the Act is outdated and marred by incoherence, features that ironically facilitate opportunistic gerrymandering, hurting the very people it originally sought to protect. Something is very wrong with this very noble law.
On March 1, 2017, the Supreme Court announced their decision in Bethune-Hill v. Virginia State Board of Elections. The case serves as a perfect illustration of how our inability to grapple with the nuances inherent to any meaningful dialogue on race relations hurts the very minorities we ostensibly seek to protect. It also highlighted the extensive flaws that mar the current iteration of the Voting Rights Act.
Few would dispute the necessity of the original VRA, which Lyndon Johnson signed into law in 1965. In 1870, the ratification of the 15th amendment had promised that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” But state officials were uninterested in enforcing the amendment, so legislators focused on the second section which gave Congress “the power to enforce this article by appropriate legislation.” That “appropriate legislation” took form as the VRA, and ensured that minorities would have their right to vote protected.
Just as it’s impossible to deny the necessity of the original VRA, it’s impossible to deny that more than half a century and a black president later, our country looks very different now than it did when Act was drafted. Yet the VRA’s race-conscious guidelines still inform the redistricting process around the country, a reality which has made partisan gerrymandering easier for both Democrats and Republicans.
In 2006, four decades after the VRA became law, Congress reauthorized and amended the Act. Section 4 of the Act had created a formula for identifying states and counties with the most troubling records of racial discrimination, while Section 5 mandated that these states and counties, dubbed “covered jurisdictions” obtain “preclearance”—that is, pre-approval from the federal government—before instituting any voting-related change. It would have been logical for Congress, in recognition of how the nation has changed since 1965, to make the Act less, not more, restrictive. They did the opposite. The updated legislation1 declared that:
Any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting that has the purpose of or will have the effect of diminishing the ability of any citizens of the United States on account of race or color, or in contravention of the guarantees set forth in section 4(f)(2), to elect their preferred candidates of choice denies or abridges the right to vote within the meaning of subsection (a) of this section.
The language is less than lucid, and the central prohibition, “diminishing the ability of any citizens of the United States on account of race or color… to elect their preferred candidates” is extremely unclear. With this kind of statute, what might sound harmlessly vague is, in fact, dangerous precisely because of its ambiguity, as evidenced by Bethune.
The right to vote is not the same as the right—if it should even be labeled as such—to get the candidate you prefer elected. Yet the updated language enshrined into law not the right to cast a ballot, but the right for minorities to in fact elect the candidate of their choice. In plain English, redistricting plans would not be labeled kosher unless they preserved a specific amount of minority political power, a feat that could only be achieved if race were a factor in drawing district maps.
The Bethune case centered on 12 disputed districts drawn after a 2010 census in Virginia. Under Section Four, Virginia, then a covered jurisdiction, was obligated to comply with Section 5 and to have their new districting plan precleared. The 12 disputed districts were all majority-minority districts (where minorities are the majority) and neither the appellants nor the appellees dispute that during the redistricting process, the districts in question “were drawn with a goal of ensuring that each district would have a black voting-age population (BVAP) of at least 55 [percent].”2
Separating voters by race is a clear violation of the prohibition to racially gerrymander. And yet, in demanding that the ability of minorities to elect their candidate of choice not be diminished at all from one districting plan to the next, the updated VRA demands that race is somewhat considered in the drawing of district lines. Covered jurisdictions that present a districting plan that ignores race but ends up diluting minority voting power would likely not gain preclearance, as the new plan would violate the VRA. On the other hand, if race were deemed the predominant factor in redistricting, the plan would constitute a violation of the Constitution’s Equal Protection Clause. Nathaniel Persily, the James B. McClatchy Professor of Law at Stanford, dubbed this predicament “the Goldilocks principle of redistricting.”
The sad reality is that the do-not-diminish provision perversely makes partisan gerrymandering easier. Persily explained3:
The new retrogression standard can be seen as entrenching either Republican or Democratic gerrymanders depending on which types of districts it protects and which types of interdistrict population tradeoffs it prevents. The Republicans maintain that the law prevents minority population reductions in majority-minority districts and only in those districts. The Democrats would allow the unpacking of some such districts but would also protect certain minority-minority districts that elect minority-preferred candidates.
With its decision in Shelby County v. Holder in 2013, the Supreme Court found the continued use of the coverage formula (Section 4) unconstitutional. The Court noted that
In 1965, the States could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.
In striking down Section 4, the Court effectively rendered Section 5 null until and unless Congress creates a new coverage formula. But although using decades-old data to inform current policy makes little sense, the search for contemporary data presents an inescapable catch-22. Persily explained that “the novel constitutional question posed by this law was how Congress could provide a record of constitutional violations necessitating the continuation of a law that, if it works as intended, prevents such evidence from emerging.” In other words, the very data that Congress needed in order to justify maintaining the covered status of certain states and counties would not exist if the VRA was effective. And, on the other hand, if there were an abundance of evidence, the VRA would have been proven ineffective and its reauthorization, therefore, imprudent.
In her dissent in Shelby, Justice Ginsburg alluded to this tension but concluded that “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella because you are not getting wet.” The simile is endearing but imprecise. Overturning preclearance is like closing your umbrella because it has stopped raining.
Liberals seem to agree with Justice Ginsburg’s assessment, taking no issue with the fact that preclearance diminishes the constitutional right given to States to determine “the times, places, and manner of holding elections for Senators and Representatives.”4 But her line of reasoning—which, at its core, justifies extreme, and, at times, preemptive action in pursuit of inarguably just ends—does not curry favor with the same crowd with regard to surveillance and security, policing, limiting the rights of felons, or racial profiling. In these other areas, the argument that something works or has worked in the past does not supersede the question of whether it is morally—or legally—defensible.
In Shelby, the Court did not rule on the constitutionality of Section 5—as distinct from the issue of the dated nature of Section 4—and, thus, the Bethune case was an opening for the Court to clarify its position. The clearest and most honest accounting of the complexities of the VRA came from the Court’s only black member.
In his Bethune opinion, Justice Thomas concludes that “this Court is at least as responsible as the state legislature for these racially gerrymandered districts,” and that “this Court has refused even to decide whether Section 5 is constitutional despite having twice taken cases to decide that question.” He noted that “to comply with Section 5, a State necessarily must make a deliberate and precise effort to sort its citizens on the basis of race. But that result is fundamentally at odds with our ‘color-blind’ Constitution… That contradiction illustrates the perversity of the Court’s jurisprudence in this area as well as the uncomfortable position in which the State might find itself.” He thus concluded that Section 5 is unconstitutional.
Bethune won’t be the last voting rights case the Court considers, and if Judge Gorsuch—who has stated that “a judge who likes every outcome he reaches is very like a bad judge”—joins their ranks, perhaps the next case will be the one in which the Court finally clarifies its position on all facets of the VRA, regardless of what intuitively sounds or feels right.
In our current political climate, conversations about race often devolve into ad-hominem attacks. The mere suggestion that the VRA, in its current iteration, may be an ill-fitting law for the nation, in its current iteration, can get you smeared as a racist. Race-conscious guidelines may have once been necessary to stop the scourge of racial discrimination in the electoral realm. They may be still. But there’s no question that we’ve moved beyond what first necessitated these kinds of measures.
Justice Thomas is right that “this Court has left the State without clear guidance,” and, by extension, has left the nation confused and divided. So long as the VRA can be used to move black Americans in and out of districts to ensure political outcomes, the law is not treating them as human beings with inalienable rights, but as political pawns. Through future rulings, the Justices should guide the country into an honest conversation about what the VRA was, is, and should be. In the end, if they don’t, it is the voters—of all colors—who stand to lose the most.
1 July 27, 2006, 109th Congress. Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006.
2 Bethune-Hill v. Virginia State Board of Elections. On appeal from the United States District Court for the Eastern District of Virginia. March 1, 2017. Justice Kennedy delivered the opinion of the Court.
3 The Promise and Pitfalls of the New Voting Rights Act. (Yale Law Journal)
4 Article 1, Section 4, Clause 1, United States Constitution.