[EL] My op-ed on Shelby in the Wall St J.

[James Grimaldi]

   - Here you go. (pasting and emailing does not necessarily mean an
   endorsement.) -- JVG


A Vindication of the Voting Rights ActThe Supreme Court's ruling in Shelby
County will help black political aspirations.


   -
   - OPINION<http://online.wsj.com/public/search?article-doc-type=%7BCommentary+%28U.S.%29%7D&HEADER_TEXT=commentary+%28u.s.>
   - June 26, 2013, 7:28 p.m. ET








   By
   - ABIGAIL THERNSTROM


   -

The Supreme Court did itself proud on Tuesday when it struck down Section 4
of the Voting Rights Act. That is the provision of the law containing the
formula that determined which jurisdictions should be kept in the penalty
box for suspected discrimination—even after nearly half a century of
dramatic and heartening racial progress. While passage of the 1965 act
marked the death knell of the Jim Crow South, the elimination of one of the
act's obsolete provisions this week reflects the progress since.

With the court's decision in *Shelby County v. Holder*, the "covered"
jurisdictions (mostly in the South) are free at last to exercise their
constitutional prerogative to regulate their own elections. In killing
Section 4, the court made unenforceable the preclearance provision in
Section 5 of the act that required certain states and jurisdictions to
obtain Justice Department permission for any laws or actions related to
voting. So "covered" jurisdictions are no longer covered by Section 4, and
the requirement that they get federal approval before even moving a polling
place across the street is dead.
[image: image]
[image: image]
AFP/Getty Images

The civil rights community is up in arms over *Shelby*. Get ready for
pressure on Congress to respond. But what could lawmakers do? Restore
federal powers to review all proposed changes in election procedure—with
the burden of proving an absence of discrimination on the jurisdiction
itself, as was the case in pre-*Shelby* law? In theory, Congress could just
use the original formula and update it with data from the 2012 elections.
The problem: Members of Congress would not like the result.

In 2012, no state in the Union had a total voter turnout rate, for whites
or minorities, under 50%—a figure that was the heart of the old formula.
The turnout in the six states covered entirely by Section 5 was well above
the national average. Mississippi, once the worst of the Jim Crow states,
had the highest total turnout rate in the nation.

Civil-rights advocates today want states like Ohio subject to preclearance.
It is very doubtful, though, that any American voters will be happy if
their city or country or state government has to get permission from
federal authorities, for instance, to alter the hours that polling places
are open. And do voters trust the Justice Department to govern with a light
hand any more than they trust the IRS? Seems doubtful.

The court's ruling Tuesday will benefit black America. Enforcement of the
statute—including the imposition of "safe" black (and Hispanic) legislative
seats as a remedy for discrimination—has herded black voters into what even
North Carolina Democrat and Congressional Black Caucus member Rep. Mel Watt
once called "racial ghettos." Rep. Watt was referring to race-based
districts that have generally rewarded minority politicians who campaign
(and win) by making the sort of overt racial appeals that are the staple of
invidious identity politics.

The black candidates who ran in such enclaves never acquired the skills to
venture into the world of competitive politics in majority-white settings.
They were thus thrust to the sidelines of American political life—which is
precisely what the statute did not intend. In this sense the law became a
brake on minority political aspirations.

In his majority opinion, Chief Justice John Roberts described the purpose
of the 15th Amendment—which forbids government at any level to deny voting
rights to citizens based on race—as ensuring a better future. But the safe
minority districts are not that better future. These districts once served
the purpose of protecting black candidates from white competition when
Southern whites would not vote for black candidates. But times have
changed, and whites now vote for black candidates at every level of
government.

The Section 4 coverage formula ignores current political conditions, Chief
Justice Roberts wrote: "No one can fairly say that it shows anything
approaching the 'pervasive,' 'flagrant,' 'widespread,' and 'rampant'
discrimination . . . that clearly distinguished the covered jurisdictions
from the rest of the Nation" in 1965. He also cited the dramatically
increased figures on black turnout and registration, as well as black
office-holding.

In enforcing the Voting Rights Act, Congress, the Justice Department and
the courts have coped with the question of when decisions about electoral
matters can be trusted to elected representatives by ignoring racial
progress. Blacks, they have implied, live in a world in which the clock has
almost stopped.

The issue of racial change has long sharply divided right and left, on the
bench and off. Justice Sonia
Sotomayor<http://topics.wsj.com/person/S/Sonia--Sotomayor/1637> is
too young ever to have witnessed the horrors of the South before the great
civil rights acts of the mid-1960s. Yet, in the oral argument in *Shelby*,
she questioned the whole notion that race relations in the region have been
transformed.

Whatever the rates of black political participation in a covered
jurisdiction, however many blacks are elected to legislative office, the
liberals on the court were not likely to be satisfied. In the oral
argument, a skeptical Justice Stephen Breyer drew an analogy between the
problem of voting discrimination and a state whose crops had a plant
disease in 1965. But "the disease is still there." No statistical evidence
could possibly convince him that what he believed to be true was in fact
false.

Justice Roberts gave full credit to the 1965 law for the progress he noted.
The Voting Rights Act "has proved immensely successful at redressing racial
discrimination and integrating the voting process," he said. It was an
important statement—an acknowledgment of the efficacy of the act in the
years it was so badly needed.

As for the coverage formula of Section 4—which was originally only supposed
to last five years—the justice made clear that even if it could no longer
be justified, it should never be forgotten. In 1965, Southern blacks were
still in political chains, and the hold of whites on political power made
all other forms of racial subjugation possible. It was part of a law that
was an indispensable, beautifully designed and effective response to a
profound moral wrong—Southern black disfranchisement that persisted 96
years after passage of the 15th Amendment.

Justice Roberts's opinion for the court is a celebration of the Voting
Rights Act—and of a nation that made it work and outgrew its most-radical
provisions.

*Ms. Thernstrom is an adjunct scholar at The American Enterprise Institute
and vice-chairwoman of the U.S. Commission on Civil Rights. She is the
author of "Voting Rights—and Wrongs" (AEI Press, 2009).*

A version of this article appeared June 27, 2013, on page A21 in the U.S.
edition of The Wall Street Journal, with the headline: A Vindication of the
Voting Rights Act.


On Thu, Jun 27, 2013 at 9:09 AM, Abigail Thernstrom <
thernstr at fas.harvard.edu> wrote:

>
>         Me on Shelby in the WSJ.
>
>
> http://online.wsj.com/article/SB10001424127887323873904578569453308090298.html?mod=ITP_opinion_0
>
>         Rick, would very much appreciate it if you could post.
>
>         (My little Mac Air in badly wounded condition, so using old laptop
> and my Harvard email address, which it recognizes.)
>
>         thanks for posting!
>
>         all best, Abby
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
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