Looking Beyond the Supreme Court on Voting Rights

By Dom Apollon Apr 29, 2009

As you may have heard, lawyers on opposing sides of a slew of critical civil rights cases have been arguing before the justices of the U.S. Supreme Court lately. Last week our nation’s closely-split high court heard what they call an “oral argument” on a key employment case. And in this morning’s case, the throw-down of vocalized legalese could lead spell the evisceration of voting rights protections for millions of people of color. That is, of course, if swing voter Justice Kennedy can be persuaded to side with his four colleagues who are solid blissfully “colorblind” conservatives (Chief Justice Roberts and Justices Scalia, Thomas, and Alito). Those four in all likelihood will vote to effectively invalidate Congress’ overwhelming 2006 vote to reauthorize the Voting Rights Act (can we say 98-0 in the Senate?). Among other things, Section 5 of the VRA requires many states and localities to “pre-clear” any polling place or other election law changes with the Justice Department or the U.S. District Court in D.C. to ensure racial and language minority voting rights. There’s been no shortage of commentary in newspapers and the blogosphere on this case and its potential implications, but we need more voices to push our national dialogue to recognize that we need more, not fewer assessments of the racial impacts of our policies. Conservative commentators have predictably suggested that President Obama’s election signified that America has effectively overcome its racism problem, and should stop “punishing parts of the country for the sins of their grandfathers,” particularly because the Justice Department has blocked voting changes supposedly in less than 1 percent of the places that sought pre-clearance. Liberal voices have correctly countered that “Section 5 combats the practice of covered jurisdictions shifting from one invalidated discriminatory voting tactic to another” by using a discriminatory impact rather than intent standard, and that the deterrence effect of the requirements is as, if not more important than the Justice Department’s blocking rate. But again, few are articulating what we truly need as a nation if we want to get serious about combating racism, not of the individual level, but of the institutional and structural types. In short, some version of the racial impact assessments that the VRA’s covered jurisdictions are forced to undertake should actually be expanded to state and local election entities throughout the nation. There is plenty of racial and language minority voter suppression in areas not covered by the Section 5, and all jurisdictions should be proactively cognizant of the impact of current and proposed electoral policies. Even if Justice Kennedy sees fit to swing away from the court’s conservatives, we have plenty of work to do to shift the debate.