But Wait, I Thought We Elected Obama?
When I started interning at the American Civil Liberties Union Voting Rights Project (VRP) in late May 2010, little did I realize that my summer would be spent assisting with litigation debating whether America is post-racial. I was aware that the election of President Obama gave much encouragement to those eager to declare America colorblind. Finally, the days of identity politics, people of color “playing the race card,” affirmative action policies, and white guilt could come to a halt. But, the celebration may be premature. My experience at the VRP reminded me that our nation’s judiciary eventually must answer the question of whether America is truly post-racial.
Section 5 of the Voting Rights Act requires certain jurisdictions to submit all election-related changes to the federal government for preclearance. It was passed during a time when civil rights activists deeply distrusted local election officials to manipulate election systems and systematically disenfranchise black voters. Section 5 outraged covered jurisdictions, many of which are located in the south. They argued that Section 5 violated our country’s valued system of federalism. Yet, Section 5 survived one constitutional challenge after the other. Repeatedly, the United States Supreme Court has affirmed Section 5 and the entire Voting Rights Act as one of the nation’s most important pieces of civil rights legislation.
The tides have recently turned. In Northwest Austin Municipal Utility District No. 1 v. Holder last year, the Supreme Court signaled that it may be ready to strike down Section 5. The Supreme Court narrowly avoided the question of Section 5’s constitutionality, instead resolving the case on statutory grounds. Although the Court left Section 5 mostly intact, dicta indicated its days might be limited. Perhaps our colorblind friends have started to successfully persuade even our nation’s highest court that times in our country have changed.
Numerous signs reveal a different reality. For example, the election of Obama was extremely racially polarized, a factor often cited to justify Section 5. In Alabama, a covered jurisdiction, Obama received 98% of the black vote but only 10 percent of the white vote. Black candidates are rarely elected in majority-white districts, and most of the majority-black districts were created by federal court order. In Mississippi, Louisiana, and South Carolina—all covered jurisdictions—no black politician has ever been elected to statewide office. Section 5 gives the federal government authority to object to election-related changes that covered jurisdictions submit, and some may be surprised to learn that there were over 100 more objections between 1982 to 2004 (626) than from 1965 to 1982 (490). As recently as the 1990s, 43% of objections were based on intent alone, while 31% were a combination of intent and effect.
If Section 5 is to be struck down as an excess of Congressional power when America truly reaches a post-racial era, that time certainly is not the present. To strike down part of a landmark piece of civil rights legislation will be unfortunately rash. However, I fear that our country’s highest court, and supposedly greatest legal minds, may disagree.