Constitution Daily

Smart conversation from the National Constitution Center

What Would Dr. King Say?

January 16, 2012 by Todd Brewster


Underlying Question in Texas Redistricting Case is whether the South Can Finally Be Said to be Free of its Racist Past


Is it time to finally declare Dixie “changed”? That is at the heart of the Texas redistricting decision now before the Supreme Court. The case, which went to oral argument last week, is focused on the Texas legislature’s re-drawn Congressional district map which, thanks to a population explosion over the past decade, had to be re-drafted to accommodate four new Congressional districts. But the question lying underneath it all is whether nine states named under the Voting Rights Act of 1965 Act as “covered jurisdictions,” suspect for their history of discriminatory practices, can now be relinquished from federal oversight. Certainly champions of state sovereignty think so. Many tend to think the federal supervision of their electoral decisions was unconstitutional to begin with.


When it became law, the Voting Rights Act was aimed at tearing down the barriers to African-American voter registration, particularly in the Deep South, where literacy tests and poll taxes were being used to discourage African-American voters from voting. In Mississippi, for instance, only six percent of eligible black voters were registered in 1965; in Alabama, only 19 percent.


A key part of the Act was its enforcement provision, Section Five. There it outlined the nine states, Texas among them, that were now required by federal law to submit any change in voting practices to either the Department of Justice or a federal court for approval. That is why last year, when the Republican-controlled Texas legislature re-drew the Congressional districts in that state, seeming to protect existing Republican districts and even create some new ones, it had to get pre-clearance on the map before instituting it.  It was not the partisan nature of the map that required review, but whether the re-drawn districts effectively diluted minority representation.


While it waited for the special court in Washington to determine the fate of its map, Texas faced a separate challenge in a San Antonio federal district court. There, Hispanic voters were already arguing that the re-drawn districts disenfranchised minority voters. Since the clock is ticking – Texas needs to schedule its primary and the court in Washington has indicated that it needs more time for study – the San Antonio court drew its own interim map, one that established more majority-minority districts, justifying its decision on the fact that the legislature’s map did not appear to reflect the fact that Texas’s population boom was largely among new Hispanic voters. The Supreme Court must now decide – and decide quickly – whether this interim map can be instituted or whether in the absence of a decision by the special Washington court charged with the pre-clearance, the legislature’s map must prevail.

Justice Sandra Day O’Connor asserted that the day for race-neutral decision-making would come perhaps 25 years from now, when, she expected, “it will no longer be necessary to “further the interest” of racial minorities

Of course, the question that many Texas legislators have is, why can’t the federal government just let Texas be Texas? Why must it “parent” their state on decisions like these when it doesn’t do the same to Vermont or New Jersey? And while the technical answer is, of course, because the law says it must, the bigger issue is whether at least this section of the Voting Rights Act, which was renewed in 2006 for another 25 years, has any purpose in an age when the truly egregious discriminatory practices of the 1960s, the ones that prompted Section Five in the first place, have gone the way of history.


Attorney General Eric Holder has an answer to that question. To him, and many others, the barriers to minority voting continue to prosper. In a speech last month in Austin, Texas, at the presidential library of  Lyndon Baines Johnson – the president who signed the Voting Rights Act—Holder cited the rash of new state voter photo ID laws as veiled attempts to frustrate minority vote. Republican supporters of such measures insist that they are only trying to prevent voter fraud, but, since minority voters are disproportionately more likely to lack such basic photo identification cards as a drivers license, these laws, say Holder, will have the effect of shutting minorities out of the polls. Instead, he recommends the automatic registration of all eligible voters, the removal of legislators from decisions involving the drafting of their own state districts, and a federal law barring the dissemination of fraudulent information intended to keep people from voting.


In 2003, three years before the Voting Rights Act was renewed, the Supreme Court, ruling in a challenge to the University of Michigan Law School’s affirmative action admissions policies, found that diversity remained a compelling interest in government policy. Building off of the Court’s doctrine that a race-conscious program is constitutional only as a “remedy” of some “duration,” Justice Sandra Day O’Connor asserted that the day for race-neutral decision-making would come perhaps 25 years from now, when, she expected, “it will no longer be necessary to “further the interest” of racial minorities. The math on that puts us at 2028, just three years before the Voting Rights Act will be up for renewal once again. Perhaps then, in what may be a different America, Section Five will finally go the way of the dinosaur.


Todd Brewster is the Director of the National Constitution Center’s Peter Jennings Project and the Center for Oral History at West Point.


Sign up for our email newsletter