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.