Jim Sleeper: Don't Panic About the Voting Rights Ruling. Re-Strategize.
Yes, the Supreme Court, in Shelby v. Holder, has gutted the Voting Rights Act's requirement that state and local jurisdictions with histories of racial discrimination obtain federal approval before they can alter an election-district line, move a polling place, or impose voter-registration requirements, such as photo I.D.'s.
(I applaud Lani Guinier's suggestion yesterday, seconding Alabama civil-rights attorney James Blackshire, that, under the circumstances, every U. S. Attorney should deputize an assistant to litigate abuses that the Justice Department was empowered to prevent administratively until now.)
Yes, as voting-rights expert and electionlawblog.org editor Rick Hasen noted yesterday in The New York Times, this ruling is also part of a long, slow conservative game to roll back a lot more than the federal government's ability to block states' and localities' supposedly race-neutral barriers to non-white citizens' eligibility to vote and, even if they do get inside a voting booth, to vote for candidates they might actually want to support.
And, yes, the Court's conservative majority is rolling back New Deal protections of working people against employers' and investors' pretension that the "free market" already gives employees almost all the rights they need. In Citizens United, the Court has decided that everyone in America enjoys equal freedom of speech even when business corporations, as legal "persons," have huge megaphones while actual citizens have laryngitis from straining to be heard. (Remember that Occupy Wall Street protesters were denied even small megaphones!)
Acknowledging all this, and reaffirming my own contempt for the Court's conservative majority, whose sheer sleaziness in oral as well as written arguments on cases like Citizens United never ceases to sicken me, I still have to note that so much was actually wrong with premises and strategies embodied in Sections 4 and 5 of the Voting Rights Act that you can almost say we asked for this.
You can certainly still say, as liberal election-law expert Richard Pildes said yesterday, that "the fears of how drastic the consequences will be for political participation are... much further out there than what is likely to happen on the ground." Pay attention, now, and don't emote.
The noxious and stupid Republican "Voter I.D." laws ("stupid" because the geniuses who crafted them disenfranchised a lot of "their own" poor, elderly white voters who, just like blacks, couldn't have afforded or found the right photos and documents in time) were struck down just in time to prevent them from influencing the 2012 election.
But that didn't require Sections 4 and 5 of the VRA. Pennsylvania, for example, was never covered by it. What it took was lawsuits of the kind Gunier is saying U.S. Attorneys should bring. Surely Eric Holder can make that happen. And while it's harder to litigate something like this than to block it preemptively and administratively, there are reasons why the first course is better.
We have no choice now but to take that first course, anyway, but we also have a chance to learn how we "asked for it" by basing 1982 amendments to the VRA on assumptions that really did go too far. Years before those amended Sections 4 and 5, the VRA had already done a lot of good that won't go away now without them.
I show this pretty graphically, if I may say so, in "Voting Wrongs," a chapter of Liberal Racism that has been praised by some fellow left-liberals, among them several black reviewers -- David Nicholson, Gerald Early, C. Eric Lincoln, Salim Muwakkil, and Don Wycliff -- who found it valuable if sometimes painful reading.
We've "asked for it" not only by making wrong assumptions about what was happening on the ground, even in the South, but also by taking an alarmist, "Boy who cried wolf" approach even to bad things that happened in jurisdictions whose elected officials - and therefore many of their voters -- remain racists.
Those bad things were depicted powerfully, if anecdotally, yesterday by The New Republic's Alec MacGillis. But contrast them with what has also happened among white majorities, in the South, who've voted for blacks. It's in the section of my chapter called "Victory and Denial," which appeared first in The New Republic of Dec. 2, 1996, but seems to be missing from their archives.
Sometimes alarmism about racism is tactical: The venerable Southern Poverty Law Center and other such dedicated groups put out alarms that are overblown because they need to raise money quickly.
But alarmism can also become ideological and almost existential: When fighting racism is your self-defining mission in life, you're prone to see racism under every bed and to create self-fulfilling prophecies of doom that give your life clear direction and meaning.
This is a hard warning to make, since racism remains virulent, even if subtle, as Justice Ginsburg reminded us when she wrote in dissent this week that throwing out VRA protections is like throwing out an umbrella, even though it's still raining, just because you haven't been getting wet.
But are we now really now going to get soaked? My "Victory and Denial" section presents the other possibility, which now we'll all have to explore:
If racism remains ubiquitous and grinding, then it doesn't leave us much margin for error, either in discovering the facts or in miscaracterizing them to the public. The 1982 VRA amendments incorporated some errors in discovery that had been distorted by understandable but over-drawn preconceptions. And some of its supporters have made even more serious errors in the court of public opinion.
We're all human, so it's best not to dwell on these errors or to make hay out them, as conservatives have sometimes done. But it's important to acknowledge them and not to repeat them.