The Magazine

It Will Always Be 1965 . . .

To the voting-rights activists.

Sep 29, 2008, Vol. 14, No. 03 • By EDWARD BLUM
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First, the spread of powerful software combining geographic information with census and political data made it possible to see the racial and ethnic makeup of any census block in the country, as well as the voting patterns of each block in dozens of previous elections. This made it possible to create voting districts by stringing together extremely small race-specific geographic units, however tangentially connected. In other words, racial gerrymandering skyrocketed.

The second development was the accelerating growth of suburbs. In Section 5-covered jurisdictions like Houston, Birmingham, Atlanta, Charlotte, and Richmond, blacks (and later Hispanics) were moving out of homogeneous ghettos and barrios and into more multiracial suburban neighborhoods. Hence, creating racially homogenous voting districts now required just the sorts of redistricting contortions that the new software made possible.

Finally, the Supreme Court's jurisprudence concerning the Voting Rights Act and Section 5 evolved away from protecting the rights of individuals and toward promoting the electoral effectiveness--or "fair representation"--of racial and ethnic groups.

In order to comply with Section 5 today, legislative redistricting bodies are methodically harvesting blacks and Hispanics out of multiracial, multiethnic districts in order to create uncompetitive, bizarrely shaped majority-minority districts. This usually fosters the election of far-left, minority Democratic candidates in the gerrymandered districts and far-right, white Republican candidates in the districts denuded of minorities. Because candidates in these safe districts have little need to temper their positions in order to court voters of divergent points of view, the first victim is legislative compromise.

A few months ago, a three-judge panel in the U.S. District Court for the District of Columbia ruled against the little Texas district in its suit to bail out of Section 5. The district argued--and is arguing again on appeal--that if it is denied bailout, then the preclearance requirement of Section 5 is unconstitutional.

Now the Supreme Court must either affirm the lower court's ruling or take the case up for oral argument. If the case is taken up, as many legal observers expect, the groups that have intervened will assert that striking down Section 5 would turn back the clock on minority voting rights.

They're wrong, of course. If anything, ending racial gerrymandering and the "political apartheid" it engenders would strengthen, not weaken, the voice minorities have in our electoral system. Even Justices Stevens and Souter in a case decided earlier this year expressed skepticism about Section 5, noting, "It may well be true that today the statute is maintaining strict federal controls that are not as necessary or appropriate as they once were."

Let's hope a majority of the justices see it that way.

Edward Blum is a visiting fellow at the American Enterprise Institute and the director of the Project on Fair Representation, which
is supporting the plaintiff in Northwest Austin Municipal Utility District Number One v. Mukasey.