As the Supreme Court considers whether to declare Section 5 of the Voting Rights Act unconstitutional, Alan Abramowitz offers a very compelling argument for why the preclearance requirement is still necessary even if racism is not the primary reason that motivates illegal voting restrictions.
The five conservative justices on the court, including Chief Justice John Roberts, were clearly skeptical about the continued need for federal supervision of the states covered by Section Five. At one point, Roberts asked whether “the citizens in the South are more racist than citizens in the North.”
Roberts’ question goes directly to what appears to be the central issue in the case — the continued significance of racial prejudice among white voters and political leaders in the states covered by Section 5. The officials bringing the suit to overturn Section 5 and their conservative allies claim that racial prejudice has diminished to the point where federal supervision of state and local governments in the covered states is no longer justified. In support of this argument, they cite the victories of numerous African-American candidates for state and local office and increased turnout rates among African-American voters.
There is no doubt that old-fashioned racism has greatly diminished over the past 40 years throughout the nation and in the states covered by Section 5. However, there are good reasons to be concerned about how a decision to overturn Section 5 would affect the voting rights of African Americans and other minorities in these states — for reasons that are more political than racial. That’s because regardless of whether white political leaders in these states hold racist views, they have substantial political incentives for engaging in actions to suppress or dilute the minority vote.
In addition to a history of racial discrimination, the states covered by Section 5 are characterized by an exceptionally high degree of racial polarization in voting up to the present day. Whites and nonwhites in these states are deeply divided in their political preferences, resulting in a two-party system in which one party depends overwhelmingly on votes from whites and the other party depends overwhelmingly on votes from African Americans and other nonwhites. This racial polarization continues to provide a powerful incentive for leaders of the party that depends overwhelmingly on white votes to suppress or dilute the votes of African Americans and other minorities.
This puts Justice Scalia in a bit of a logical bind as well. Remember, he explicitly said during the oral argument in this case that you can’t leave this kind of thing in the hands of the legislature. But I would be willing to bet that if those voter suppression cases reach the Supreme Court, he will be arguing the exact opposite, that state legislatures should be trusted to make decisions about the extent of voter fraud and the actions necessary to prevent it. Scalia’s advocacy of judicial restraint and deference is nothing if not selective.