Is the Voting Rights Act in danger?

This  morning's New York Times includes an op-ed by retired Times Supreme Court reporter Linda Greenhouse, who graduated from Harvard one year before I did.  I never met her and I have learned a lot reading her pieces, but I am going to question some of the premises of that article today, all the more so since the article typifies contemporary liberal commentary on a number of issues. I would describe the principle underlying that commentary as follows:  if you do not unhesitatingly endorse every step that has been taken by Congress and various courts in the last 60 years to increase racial equality, then  you want to go back to the segregationist era.  This is how Greenhouse characterizes the situation at the moment regarding the future of the Voting Rights Act of 1965:

"Questions about the Voting Rights Act’s constitutionality have long been hanging in the air at the Supreme Court. But it was only this month, in an order expanding a Louisiana redistricting case, that the justices placed the issue squarely on their docket.

"Now that they have done so, with argument scheduled for Oct. 15, there is little doubt that what remains of the 1965 law after its evisceration in the Shelby County case 12 years ago will be seriously weakened, if not repudiated in its entirety by the time the court’s next term is over."

Some history is in order.  The Civil Rights Acts of 1957, 1960, and 1964 all included attempts to restore the right to vote to black Americans living in southern states, but none of them  had had much effect in the Deep South, where few if any black Americans voted.  After the police violence against the Selma voting rights march in early 1965, Lyndon Johnson sent the Voting Rights Act to Congress.  Its most important provision, by far, gave the federal government the power to take over the voter registration process in areas that denied black people the vote.  That, as it happens, was how the Republican supermajority in Congress in the late 1860s had managed to enfranchise the recently freed slaves in the South, leading for a very brief period to the election of large numbers of black officials in southern states, and particularly the three states--Louisiana, Mississippi, and South Carolina--that had black majorities.  Reconstruction ended in 1877 and by the late 19th century nearly all southern states were finding ways to disenfranchise their black populations.  Johnson and the Congress decided that enough was enough.   As it turned out, it was not necessary to set up federal registrars all over the South.  The southern states got the message, and barriers to registration disappeared pretty quickly.  I am unaware of any areas in the country today where voters are denied the right to register based on race.

The current controversy over the act relates to section 2, which caused some controversy from the beginning and was amended in 1982.  The amended text is as follows:

"42 U.S.C. § 1973. Denial or abridgement of right to vote on account of race or color through voting qualifications or prerequisites; establishment of violation.

"a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section.

"(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population."

The key passage of the act is the last paragraph, which guarantees "members of a protected class"--minority voters--equal opportunity "to participate in the political process and to elect representatives of their choice."  Now I would suggest that electing "members of their choice" has never been the right of any class of Americans since the founding of the Republic.  That opportunity has customary been denied to anyone belonging to a minority political party within a particular jurisdiction, such as Massachusetts Republicans and most Texas Democrats today.  The Voting Rights Act however aimed specifically at ensuring the rights of long-disenfranchised black Americans, and in the last two sentences of that paragraph, it indicates that a "protected class"--that is, minority black voters--have some right to be represented by members of their class, which the drawing of congressional or legislative districts must respect.  The last sentence, however, rules out the interpretation that black voters are entitled to representation based upon their proportion of the population.

Despite that last sentence, I have the impression--and I would be glad to be corrected if it is false--that a number of court decisions have effectively endorsed the idea that enough majority black districts should be drawn to give black voters proportional representation within states.  And nationwide, the Congressional Black Caucus has 62 members, 14 percent of the House of Representatives--eseentially exactly the same proportion as the black population of 13 percent.  Greenhouse's article, while referring frequently to Section 2, completely ignores that last sentence and its implications.  Here is her argument for its continuing application:

"The argument that the Voting Rights Act has outlived its usefulness is easily refuted by facts on the ground. The County Commission of Fayette County, Tenn., recently settled a Voting Rights Act suit brought by the NAACP Legal Defense Fund that challenged the county’s electoral system as racially discriminatory in violation of Section 2 and the Constitution. Despite a Black population in the county of more than 25 percent, the 19-member commission has no nonwhite members. The Legal Defense Fund dismissed its lawsuit after the commission drew a new districting plan with three majority-Black districts."

That change certainly reflects section 2.  But the case of Louisiana congressional districts that is about to come before the Supreme Court--the case that has led Greenhouse to write her article--is another matter.  I quote from her again:

"Briefly, Louisiana v. Callais has its origins in an earlier case, a 2023 Fifth Circuit decision that required the state to create a second majority-Black congressional district. (A third of Louisiana’s population is Black and the state has six congressional districts.) A political struggle ensued over how to carve out a second district while protecting the districts of two leading Republican members of Congress, Mike Johnson and Steve Scalise."

I agree with Greenhouse that the Supreme Court majority will very likely overrule the Fifth Circuit (whose decision I have not read) and declare that Section 2 specifically rejects the idea that a one-third black population does not establish a right to two black districts.  And it does.  This controversy reminds me of Ketanji Brown Jackson's dissent in Students for Fair Admissions vs. North Carolina a few years ago, in which she complained bitterly that the majority was rejecting affirmative action as a means of redressing historical disadvantage among black Americans.  The problem with that argument, as I pointed out at the time, was that no Supreme Court majority had ever accepted that rationale for affirmative action.

This, however, is not, for me, the real problem that we ought to look at.  Until now the courts and state legislatures have accepted the idea that minorities need districts in which they will be the majority, allowing to elect members of Congress of their race.  My question is, has this in fact been good for democracy?  I am not at all convinced that it has, for reasons that should not surprise long-time readers of this blog.

The creation of majority-minority districts, like many affirmative action programs in universities, law firms, and other institutions, has done a good job of diversifying our elite.  It would only have helped the minority voters to whom it is designed to give representation, however, if we believe that their problems are unique to themselves and if these representatives--still only 14 percent of the House--have been able to use their power to help those problems.  And that is exactly what I do not believe.  Almost every problem that poorer black Americans suffer--poverty, single parenthood, drug addiction and poor education--is shared by a larger number of white Americans and a substantial number of Hispanic Americans.  To characterize these problems as black problems seems to serve the interests of both of our political parties, in different ways, but it doesn't help the lower half of our population at all.  Indeed it has divided the lower half of our population, so that a substantial majority of poor white Americans vote Republican while a large (albeit shrinking) majority of poor nonwhites vote Democratic.  That represents a complete change from the middle decades of the twentieth century--the era, as I have often shown--when income inequality among all races was being reduced.  And no region of the nation needs multiracial coalitions more than the South,  which remains our poorest region and ranks the lowest by many measures of economic and social well-being.  

Republican legislators, judges, and many Republican voters now blindly adopt the position that anything President Trump wants must be right.  Democrats should not in return decide that anything the Supreme Court majority and the administration do must be wrong.  Both sides badly need to move beyond stereotypes both positive and negative.  If the Supreme Court does rule against the current Louisiana district plan this could open up a way to a better political future.  It will not mean a return to the pre-1965 era.

Anchorage and Munich

On March 11, 2022, just a few weeks after Russia's invasion of Ukraine began, I suggested here that NATO should very seriously consider entering the war on Ukraine's side. I did so because I thought the whole post-1945 world order was at stake and because Ukraine was making an all-out effort to defend itself.  Not only did the Biden administration immediately rule out direct intervention, but I do not know of a single other commentator who openly agreed with me.  The invasion did lead Sweden and Finland to join NATO and European nations to begin beefing up their defenses.  The Ukrainians have mounted an extraordinary defense, but the Russian threat has grown bigger, not smaller, over the last few years, and Ukraine has now been losing ground--although it is a long way from being militarily defeated.  In these respects, the situation today is very different from the crisis over Czechoslovakia in 1938 that led eventually to the Munich agreement conceding German-speaking areas of Czechoslovakia to Germany, and leading just five months later to the entire destruction of Czechoslovakia.  Donald Trump's meeting with Vladimir Putin in Anchorage, however, does have echoes of the crisis of September 1938 and may lead to something similar.

British Prime Minister Neville Chamberlain actually met Hitler three times in 1938: first in Berchtesgaden when he agreed in principle to Hitler's demand for the Sudetenland, then at Bad Godesberg where Hitler escalated his demands further, and then at Munich, where Hitler had accepted Mussolini's invitation to meet with Chamberlain and French Premier Daladier, rather than attack Czechoslovakia after the Czechs, the French and the British had all rejected his Godesberg demands.  At Munich Hitler got most of what he wanted from Czechoslovakia, and signed a declaration, proposed by Chamberlain, in which the British and German governments expressed their desire never to go to war again.  The situation today is different, of course, because Russia and Ukraine have already been in full-scale war for two and a half years.  The Anchorage meeting resembles the first, Berchtesgaden meeting.  Trump received Putin claiming to want an immediate cease-fire, as Ukraine does, but he apparently not only dropped that demand, but accepted Putin's demand that he receive the entire Donbas region--much of which remains unconquered--in return for peace.  In addition according to reports this morning, Ukraine's security would depend in the future on the Russian government's promise not to attack it again, which, without going into detail, is pretty much what the Czechoslovak government got to insure its future security after Munich.  

Trump now faces the same task that Chamberlain faced after Berchtesgaden: to sell not only the embattled Ukrainians on such a deal, but to convince his traditional allies, the other NATO nations, to go along with it.  Chamberlain did in fact persuade both Czechoslovakia and his French allies to agree to the cession of the Sudetenland after Berchtesgaden.  President Benes of Czechoslovakia did not threaten to fight Germany alone and gave in, and the French government was more interested in keeping Britain on their side in case war with Germany eventually broke out than in standing up for Czechoslovakia, with which they had a treaty of alliance.  Now Zelensky has already said that he will not accept the formal transfer of any territory to Russia, and he will almost surely insist--as I believe he should--on the freedom to conclude security agreements with other powers.  Whether he could fight on if Trump washed his hands of the conflict depends on the attitude of the European powers, how much help they can give him, and on the speed and effectiveness of new Ukrainian military innovations, most of them involving drones, which have so far helped Ukraine avoid defeat while bringing the war into Russia itself. 

Both at home and abroad, I am convinced, Donald Trump cares more about drama than results.  Every week he introduces a new act of the long-running play, Donald Trump, Superstar, identifying a disastrous problem that must be solved and promising an imminent solution.  Like Chamberlain in 1938, he is poised to proclaim that a peace agreement with Russia guarantees peace for our time and claim the Nobel Prize that he craves so ardently.  At this point, it looks very unlikely to me that Zelensky or the major European states will agree to the surrender of additional Ukrainian territory or the renunciation of effective Ukrainian guarantees.  Ukraine has already proved that it is not Czechoslovakia in 1938: it is orders of magnitude larger in territory and population and it has fought effectively for more than two years.  The major European powers are all breaking with Washington now on the issue of Israel and Palestine, and I don't expect them to knuckle under to Trump this time.  In short, it looks to me as if Trump's current production will fail to produce the kind of triumphant climax that Chamberlain enjoyed, briefly, in September 1938.  I could easily be wrong, but I expect the war to continue.

Where are we going?

 Events in the last couple of months have laid out a road map for the Trump Administration.  

 During the last 90 years or so, the federal government has acquired enormous power and influence within our society.  Regulation and direct financial support have given it a critical role in all our economic institutions, from Wall Street to agriculture to higher education, medical care, transportation, communications media, energy production and distribution, and any industry facing foreign competition. And during those 90 years various administrations have used that power both to preserve and to change the way Americans live in important respects.  They drew upon the 18th-century principles of the Enlightenment, which held that governments could use reason and intelligence to improve the lives of all.  Meanwhile, the US government has deployed unprecedented power all over the world.  That power, too, originally claimed to serve higher principles: the destruction or containment of totalitarian regimes, and the creation of a world ruled by law.  For the time being, those experiments appear to be over.

The Republican Party has sought the undoing of the regulatory state and the complete liberation of free markets at least since Ronald Reagan, but only the rise of Donald Trump, a political outsider with no commitment whatever to any of the achievements of the last 90 years, to make their dream come true.  Trump commands a degree of loyalty among a majority of the Republican Party that no president since Franklin Roosevelt has ever matched, precisely because of his outsider status and his willingness to disregard taboos that have constrained political behavior for the entire history of the republic.  No president has ever publicly described political opponents the way he does.  Seeking power largely for personal reasons, Trump has achieved it through an alliance with our most powerful economic sectors, including the fossil fuel industry, the tech industry and the growing crypto industry.   His administration is reconfiguring the federal government to give them all anything they want.  Nowhere is this more apparent than with respect to fossil fuels.  Government policy has done a 180, shifting from trying to limit climate change to encouraging it.  How exactly the fossil fuel industry plans to cope with its consequences--of which they must be well aware--is not clear, and I haven't seen any media analysis of this rather critical question.  They may be counting on technological breakthroughs to block some of the sun's rays.

And meanwhile, to consolidate his power, Trump is using the power of the federal government to cripple any opposition to him and what he wants to do.  Our traditional media outlets--newspapers and television networks--are feeling heavy economic pressure, which has forced CBS/Paramount, for instance, to seek a merger.  That is why 60 Minutes had to break all precedent and settle Trump's lawsuit against it in order to make sure the merger might go forward, and, quite possibly, why John Oliver is leaving late night TV.  That is why Columbia, Brown, and the University of Pennsylvania have reached settlements with the Department of Education, and while Harvard is almost certain to do so as well. They cannot maintain the size and scope of their universities without federal money, and they do not have the courage to regain their independence by drastically restructuring themselves to allow themselves to live within their non-government income.  (I suspect they could do that by firing most of their administrators, but since those administrators completely control them, they won't.)  Trump convinced several major law firms to donate time to whatever he wants them to do, and probably deterred them from taking on clients working against his interests.  Trump has secured the allegiance of the right-wing American pro-Israel lobby by endorsing everything that the Netanyahu government wants to do, including the ethnic cleansing of the Gaza strip.  And that isn't all.

Trump has learned the hard way how federal investigations can create unfavorable media attention, distract the public, and drain the target's economic resources.  His Justice Department, working with the new leadership of the intelligence agencies, are working full time as I write to turn the tables on Democratic former presidents, including Bill Clinton, Barack Obama, and very possibly Joe Biden.  We can't yet be certain but it looks like negotiations are underway to trade clemency or a pardon to Ghislaine Maxwell in return for testimony implicating prominent Democrats, led by Clinton, in Maxwell and Jeffrey Epstein's sex crimes.  (The Biden Justice Department, to its credit, did not apparently give her the chance to trade such testimony for leniency when it convicted her of sex trafficking.)  The Justice Department is preparing to charge leading figures from the Obama administration with a criminal conspiracy to propagate the story that Russia in 2016 was trying to elect Donald Trump.  Their targets may include Obama--in spite of last  year's Supreme Court decision granting presidents immunity from criminal prosecution for any actions related to their presidential duties.  I will not be at all surprised if they start bringing cases against Democratic state and local officials as well, perhaps for attempting to obstruct federal immigration policies.

And last but hardly least, Trump has started using the federal bureaucracy to control information.  He has now fired the chief of the Bureau of Labor Statistics, which has been keeping unemployment statistics for most of 100 years, because the bureau released a disappointing jobs report.  Like so much of what Trump is doing, this disregard for real facts is not  unprecedented.  I have repeatedly pointed out that administrations since Bush I have talked about the federal budget, throwing around five- and ten-year figures for expenditures and deficits, has made it impossible for average citizens to have a real sense of what is going on.  But Trump, by firing the head of the bureau based on false information about previous mistakes, has broken new ground.  Throughout his career he has depended on selling his own particular version of reality.  Meanwhile, the other Boomer at the the highest levels of this administration, Robert F. Kennedy Jr., is abandoning some of the most important lessons of medical science, where the Enlightenment originally had some of its greatest impacts.

Trump is using parallel tactics in foreign policy.  His imposition of high tariffs has caused major US trading partners, including Japan, Great Britain,. and the EU, to make major tariff and trade concessions.  Whatever they may think of him, the Europeans apparently believe that they cannot afford a complete break with the United States.  Trump is also using threats to try to get Putin to halt the war against Ukraine, and he does seem to want Netanyahu to stop the war in Gaza.  Here his tactics so far have failed--and I'm not sure how serious he is about Netanyahu, anyway.  He has just escalated threats against Russia, responding to former President Medvedev's nuclear threat with one of his own, but where this diplomatic struggle will lead him is not clear. 

Earlier generations of Americans created a more just economic order and saved freedom in much of the world by sacrificing for goals bigger than themselves.  That ability, I think, allows institutions involving large numbers of people to succeed.  It was that kind of sacrifice that my generation rebelled against in the late 1960s because of the Vietnam War, in which the government tried to draw on it for mistaken goals.  Both sides of our political spectrum, as I have written here many times, have rejected that kind of sacrifice, in different ways, in subsequent decades.  That is why history and literature professors abandoned the idea of a body of knowledge that every educated person should have, why journalists stopped ignoring stories about politicians' personal lives that held them to impossible standards and simply undermined public confidence in leadership, and why so many educated people embarked on a long crusade against federal taxation.  That is why Donald Trump could become an heroic figure to tens of millions of Americans.  Such a shift has happened many times in history--it is part of the story of the fall of every great empire, and something very similar happened right here in the decades after the Civil War.  And I am not convinced that the Trump administration is the biggest threat to life as we have known it, or to freedom, that we face.  The whole digital revolution that has transformed our lives so much, and which is entering a new phase with AI, has given us a new generation of leaders who appear to have equally little concern for what their innovations will do for the common good and for the economic and emotional health of the citizenry.  They are more transformative figures than Trump and will last a lot longer.

 We can all keep the need to sacrifice for the common good and to respect actual facts alive in our own lives.  Eventually a critical mass will get tired of selfishness and lying and things will start to swing back the other way.  It took 1000 years, until the Renaissance, to restore the Greco-Roman respect for science and facts, and I don't think it will take that long this time.  In any case, to paraphrase Ranke, no era completely defines human nature, and all our lives are part of a much larger story in which the good far outweighs the bad.  No era--like no life--last forever, and many give birth to something completely different.