Wednesday, June 26, 2013

Shelby County v. Holder: State Sovereignty and Race Together Again

I would like to start this discussion of the Supreme Court's decision striking down Section 4(b) of the Voting Rights Act of 1965 by laying out some assumptions:

1) Whenever the Supreme Court strikes down a law with titles containing "Rights Act" and "196_", we should be concerned.

2) Creating districts that isolate and concentrate voters based on race, political party, or community interest works against motivating law-makers towards compromise, consensus, and collaboration.

3) We do not live in a post-racial society.

Now, what did Shelby County, Alabama v. Holder do?  The Voting Rights Act of 1965 outlaws many of the discriminatory practices used in the South to disenfranchise black voters, such as voting prerequisites and "qualifications" (i.e., literacy tests) that had to be met before a voter would be allowed in the ballot box.  In doing so, the Act also imposed significant federal oversight over the voting practices of Southern states and local jurisdictions in which less than 50% of the eligible population was registered to vote.

The 21st Century effect of this law is that these primarily Southern jurisdictions must submit redistricting plans and new methods of voting to the federal government for "preclearance" under Section 4 of the law.

In Shelby, the Court struck down preclearance, noting that blacks are as likely to register as whites in these jurisdictions and that the "fundamental principle of equal sovereignty" means that barring some pressing and overriding interest, the federal government should not intrude on state decisions.  For a great analysis (from the left) by one of my favorite jurists Eric Posner, please read this.

The most comprehensive analysis of the decision, and all of the consequences in both directions, that I've found is written by Dylan Matthews with the Washington Post.  Matthews notes that the actual effect of this decision is predicted to be small by many within the federal government, noting that the feds reject less than 0.1% of all law changes between 1995 and 2004 (PDF).  Aha, but that brings me to the money quote of the day from Justice Ginsburg:

“Throwing out preclearance [the Section Four formula] when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Crafting a legal argument that works is good.  Crafting a legal argument with metaphoric resonance is masterful.  This is the same argument that is oft used by death penalty proponents: "Capital punishment is the ultimate deterrent and once you take the lid off, prison guards will be murdered by the dozens."  The fact that voting/jurisdictional changes are so rarely overturned is a faulty basis for doing away with the law unless you can somehow prove that deterrence is no longer necessary.

Matthews also presents the very compelling argument that minority-majority districts (promoted by the Voting Rights Act) are actually bad for minority interests:

Political scientists Charles Cameron, Sharyn O’Halloran and David Epstein backed up that argument when they found that majority-minority districts like those created by the Voting rights Act do not maximize substantive representation, or the election of legislators who agree with the prevailing view of a racial minority group. That’s because they concentrate like-minded minority voters into certain districts, meaning those voters have little representation outside those districts. That makes it easier for candidates judged by members of the relevant minority group to not share their interests to gain those outside seats. Epstein and O’Halloran have found that each additional majority-minority district increases the number of conservative-held seats by two.

However, Matthews goes on to note that majority-minority districts play a much more important role of increasing the likelihood of minority candidates being elected, gaining seniority, and fighting for the interests of their constituents in the higher levels of the legislature.  Shelby County did not necessarily do away with that, but just as we've seen the rug pulled out from under "noncompliant" legislators here in Maryland, the sad expectation is that these minority-majority electeds can probably expect to see their base spread out over multiple districts and their legislative history of fighting for those interests used against them.

I want to close this analysis with an article I read the morning before the Shelby County decision - The Guileless 'Accidental Racism' of Paula Deen by Ta-Nehisi Coates.  Many of you are rolling your eyes for any number of reasons (mostly because the Paula Deen story has been overplayed), but I found this article most interesting for the subtle empathy Coates offers Deen; the underlying question of "what do we expect from children who saw their parents treat other human beings like animals and were raised with that moral code?"

When I read parts of the Shelby decision, I thought to myself that those "children" are the same people who are having their decisions subject to preclearance.  We don't need to go further in the analysis than that basic fact.  They don't need to be racists.  They don't need racial motivations.  But they were raised under the social code that made necessary a Civil Rights Act of 1964, a Voting Rights Act of 1964, a Voting Rights Act of 1965, and a Civil Rights Act of 1968.

Here is a quote from the article by Coates:

A few months ago I was interviewing a gentleman who'd migrated up from the South in the 1930s. When I asked him why he'd left, he said he was looking for "protection of the law." It is crucial that we remember that the South, for black people, was not just the home of "Colored Only" water-fountains, but was a kind of perpetual anarchic terrorist state. There was no law.

This wasn't just a matter of inconvenience and political gamesmanship.  It was institutionalized dehumanization less than a generation from where we are now.  We've thrown away the umbrella and hoped for the best.  It was done in the name of state sovereignty.  Funny how those two things end up together.

Have a great Wednesday doing what you love.  Rock on.