Like the Civil Rights Act of 1964, the Voting Rights Act of 1965 was a just, long overdue, and necessary piece of legislation. Together, the two acts worked wonders in eliminating the most egregious legal barriers that had sustained the regime of Jim Crow. Gradually, sometimes grudgingly, but in the fullness of time, inexorably, legally sanctioned segregation came tumbling down. Long-suffering black citizens were of course the most important immediate beneficiaries of the legislation; but the nation benefitted as well and could take pride in the hope that the ugly stain of racial discrimination would at last be washed and purged away.
But that was before the civil rights movement morphed into a civil rights establishment, replete with a plethora of mind-numbing legal paraphernalia that only specialized legal technicians could understand or explain. Somewhere along the way, the principled understanding and enthusiasm that accompanied the birth and nurtured the growth of the civil rights revolution of the ‘Sixties' got lost in the vocabulary of affirmative action, racial balancing, quotas, goals and timetables, disparate impact studies, and, more recently, the catch-all concept of "diversity." These and related legal formulas much beloved by the technicians eventually layered the 1964 and 1965 Acts with encumbrances that, collectively, strangled the idea of a color-blind Constitution and replaced it with a crazy-quilt pattern of racial preferences thoroughly at odds with the letter and spirit of the original legislation. Fifty years on, the original rationale, that a person's race could no longer be constitutionally justified as a ground for distributing benefits and burdens, seems to have been forgotten, lost in a wilderness of contradictions constructed by artful litigators and judges—unless, of course, one happens to be a student of the instructive opinions of Justice Clarence Thomas, who remembers (and says) better than anyone what the original struggle was all about.
This helps to explain why every Supreme Court decision involving racial questions is fraught with great political and emotional tension. Aided and abetted by a compliant media, the civil rights establishment is quick to condemn the slightest deviation from their latest preferred scheme for the perpetuation of preferences favoring racial minorities. The reaction this week to a decision in a Voting Rights Act case, Shelby County v. Holder, is par for the course. The issue before the Court was conceptually quite simple. Section 2 of the VRA forbids racial discrimination in voting. Taking note of the particular legal tricks and perversions that the Jim Crow regime had deployed to deter black voters, Section 5 of the VRA imposed a special burden on nine states and 53 counties of the Old South: any change in their election laws, however seemingly small and insignificant, would have to be pre-cleared by the Department of Justice or by a three-judge court in Washington, D.C. Section 4 of the Act contained the definitional formula that brought the nine states and 53 counties under the ambit of Section 5's requirements.
That formula was based on a clear-eyed understanding of diverse legal practices and customs that had been used to discriminate against black voters. The formula made perfect sense in 1965; but its defining criteria, the Court said today, are hopelessly outdated and no longer reflect realities on the ground. In light of that fact, and in light of the fact that Section 5's pre-clearance requirements under normal conditions would be constitutionally suspect for imposing different standards on different parts of the country, the Court held that Section 4's triggering criteria could no longer pass constitutional muster. Section 2 was left intact, as was Section 5. Section 4's triggering definitions, however, would have to be changed by Congress.
All in all, a realistic reassessment of 47-year-old statutory formula that no longer reflected actual political and legal conditions in the South. But not for the civil rights establishment, for whom nothing much of importance seems to have happened in race relations since Martin Luther King led marchers across Selma Bridge in 1965. Reactions from the movement and its political and media allies were fast and furious. The Court's majority was excoriated for harboring barely disguised racist motives; the decision would effectively erase many of the hard-fought legal victories achieved during the past half-century; blacks and other minorities would once again be prevented from voting; and much else in a similar vein.
It's not clear whether those who spout such nonsense actually believe it, or whether they're merely posturing; in either event, the real effects of today's ruling will be decidedly more modest and more downstream. While the pre-clearance requirement remains valid law, it will have no effect unless and until Congress revisits the triggering mechanism of Section 4. Given the current divisions in Congress, that is unlikely to happen any time soon, but when it does we may have a relatively honest legislative debate about civil rights for the first time since the 1960's. Prior debates over extensions of the VRA, despite serious legal criticism deserving respectful attention, were largely pro-forma exercises in political dissemblance in which Congress decided to leave the matter to the judiciary. Today's decision put an end to that. Congress can no longer hide behind judicial robes.
When and if it does trouble itself to address matters, two issues above all will prove decisive: the effect of the VRA on reapportionment and redistricting, and its impact on Democratic voter registration schemes. Both subjects entail the meat and potatoes of politicians' diets, and they will for that reason focus with laser-like precision on any changes in the law. In one of the unintended consequences of the VRA, Republicans, by purposely creating a limited number of safe racial minority seats for Democrats, have been able to create a greater number of safe seats for their own party. That gambit may have run its course, but where the immediate political interests of legislators are at stake anything can happen.
Democrats for their part have sought to expand VRA coverage to include all manner new voter registration gimmicks, which in most cases have little to do with racial discrimination and everything to do with bloating voter rolls with voters having dubious credentials but strong allegiance to the Party. Today's decision will make expansion of such schemes more difficult. Only time will tell. In the meantime, discount the hysteria.