On Wednesday, Chief Justice John Roberts, noting that Massachusetts has the worst rate of white turnout compared with that of blacks, and that Mississippi has the best, asked Solicitor General Donald Verrilli: “Is it the government’s submission that the citizens in the South are more racist than citizens of the North?” Verrilli said no. His answer was obviously false. Otherwise, the administration would favor extending Section 5 to the entire nation.
Justice Anthony Kennedy asked Verrilli why the government, which purports to believe both that the Voting Rights Act remains necessary and that there are not regional differences in racism, does not want to make the act universally applicable. Verrilli replied that “history remains relevant” and Congress considered it “prudent” in 2006 to maintain Section 5’s “deterrent and constraining effect.” It was prudent, and history is relevant, only if the citizens of the South remain more racist than the citizens of the North.
Verrilli did not deny that Section 5 takes a toll on federalism. Kennedy, whose vote is apt to be decisive, described the toll disapprovingly as a federal “trusteeship” over the covered states and jurisdictions. Citing the Marshall Plan and other excellent laws that were not necessary forever, Kennedy said: “Times change.”
Not for progressives, they don’t. Section 5 was enacted as a temporary response to many measures employed, primarily in the South, to disenfranchise minorities. It requires nine states and some jurisdictions in others to get federal permission — “pre-clearance” — for even minor changes in voting procedures. It has been extended four times, most recently in 2006 for 25 years. The 2006 House vote was 390 to 33, the Senate vote was 98 to 0; obviously, the political class’s piety about the act has extinguished thought about its necessity. But one reason for judicial review — for active judicial engagement in the protection of constitutional rights and arrangements — is that the political class, with its majoritarian temptations, cannot be trusted to do so.
In 1982, Section 2 of the act was amended to say that the measure is violated whenever nomination and election processes “are not equally open to participation” by minority voters. And equality of participation is said to be denied whenever minority voters “have less opportunity than other members of the electorate to . . . elect representatives of their choice.” And representatives “of their choice” has been construed to mean representatives who are members of the same minority. This expresses two tenets of progressivism’s racialism. One is identity politics: Your race is your political identity. The other is categorical representation: Members of a race can be understood and represented only by members of this race. By this reasoning the Voting Rights Act has become an instrument for what Roberts has hitherto called “a sordid business, this divvying us up by race.”
Each renewal of the 1965 act should have involved sifting the most recent voting results, but the most recent data used in 2006 were from 1972. By 2031, this data will be 59 years old. Unless the court now stops this pernicious silliness, in 2031 Section 5 will no doubt be renewed a fifth time, perhaps for 34 years, through the centennial of this temporary measure.
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