Friday, March 20, 2009

Using the Obama Victory as an Excuse for Ending the VRA

My co-blogger Steven recently posted about a challenge to the VRA.  One particular portion of the brief has made the headlines recently.  In defense of their request to nullify the provisions of the Voting Rights Act, the defendants have made the following assertion:  ""The America that has elected Barack Obama as its first African-American president is far different than when Section Five was enacted in 1965."  The brief continues to say:

Nothing evidences that support more clearly than comparing the votes President Barack Obama received in Georgia with the votes received by the last two Democratic Presidential nominees, Senator John Kerry and former Vice President Al Gore. In the 2008 election, President Obama received 1,844,137 votes of the 3.9 million Presidential votes cast in Georgia. Those raw numbers mean that President Obama received 47% of the votes cast in a majority Republican state with only 29% black population.

In Georgia, President Obama received a percentage vote 3.8 points higher than former Vice President Gore in 2000, and 5.6 points higher than Senator Kerry in 2004. Congress’ insistence that Georgia has “a continuing legacy of racism” in the context of the renewal of the VRA is nonsensical when an African- American candidate for President receives a greater percentage of the vote than his white predecessor candidates.

The Obama campaign and subsequent victory was indeed a victory for all Americans and a great step in the direction of equality.  However, it is folly to use this moment in history to argue that racism no longer exists in America, and that the need to protect the voting rights of African Americans, Latinos, and others from race-based interference with the right to vote has somehow disappeared.  

Before getting into the numbers, a bit of a history lesson is appropriate.  African American men were allowed the right to vote in 1870,  but this right was taken away by the post-Reconstuction legislation and intimidation.  In the South, African Americans were subsequently prevented from exercising the francise until the passage of the 1965 Voting Rights Act, and even then, compliance was not immediate.   So, the numbers tell us that - depending on jurisdiction - African Americans in the South have only been voting consistenly for the past 40 years.  That is not a great deal of time in historical context.

Some may argue that in that 40 years, American has profoundly changed.  This is also undoubtedly true.  However, three things are worth noting.  First, while America has profoundly changed, old practices are difficult to change and many remain fairly intact.  Critics should keep in mind that the VRA was most recently reauthorized in 2006.  (Click here for an excellent rundown by the NAACP LDF of what data Congress used at that time to justify its action.)  Suffice to say, they were looking at recent data, rather than data that were ages old.   It is not too far of a stretch to reason that many of the same things that were true in 2006 remain true three short years later.

Second, even if one could opine that the 2008 election changed even that which was known in 2006, there is an issue with reading too much into the sucess of one person.   Barack Obama has an amazing story, but here is only one person.  Some events prove that the rules have been changed forever; other events prove to be exceptions that verify the continued validity of he rule.   At this point, it is far too early too tell which of these categories Barack Obama will be assigned by history.  But at this point, the fact that two African Americans have never simultaneously served in the United States Senate since Reconstruction is powerful evidence of how far we still have to travel on this issue. 

Finally, the states are failing to look at this from the other side of the coin. What if one argues that Obama's election could inspire a renewed hostility to the voting power of minority groups?   This also has yet to be seen, but it is just as logicially plausible as the defendant's scenario.  As America's demographics change, it is possible that the browning of the country coupled with the electoral success of some persons of color could produce exactly the opposite of what the defendants assert that it does. 

So, the states may be correct that the day will come when pre-clearance is no longer necessary.  However, in my opinion that day is not today and is probably not tomorrow either.  Rather, in Justice O'Connor's suggestion in the University of Michigan cases, we may need at least another 25 years to see what this all means.   So, the defendants should be careful not to put the cart before the historical horse.

NLS

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