Goldberg: A ruling on racial progress

I can only hope that the scourge of racism is finally purged from Stewartstown and Pinkham’s Grant. These are two of 10 New Hampshire towns covered by Section 5 of the Voting Rights Act of 1965, which requires local officials to get permission, or “preclearance,” on any changes to their election laws.

Stewartstown has just over a thousand souls in it and is 99% white. In 1970, when it was put under the authority of Section 5, the census listed two blacks out of its 1,008 residents. Pinkham’s Grant boasts nine residents, and it must also beg Washington for permission to make any changes to how it votes.

In 1970, New Hampshire required all of its citizens to pass a literacy test to register to vote. But Pinkham’s Grant, Stewartstown and the other eight towns also had low voter participation rates. These two factors — a test of any kind for voting and participation rates under 50% — met the criteria for oversight under Section 5.

But after years of onerous preparation, the state filed for a “bailout” from the oversight provisions of Section 5 in November. And although the Justice Department hasn’t taken a whole state off its watch list since the early 1980s, New Hampshire will probably be let off the hook.

In 2009, the Supreme Court signaled to the Justice Department that the Voting Rights Act was sorely in need of updating. In 1965, the legislation was a radical but necessary response to entrenched, institutionalized racism. Today, blacks vote at a higher rate than whites in many Section 5 jurisdictions, and in others the shortfall is hardly due to anything like Jim Crow. Latino rates are on the rise too.

Nine whole states are still covered; seven of them are from the old Confederacy (Alabama, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia) plus Arizona and Alaska. But there are jurisdictions in parts of Florida, California and the Confederate bastions of the Bronx, Brooklyn and Manhattan in New York City that must seek preclearance from Uncle Sam as well.

“The evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance,” the high court said in Northwest Austin Municipal Utility District No. One vs. Holder.

Justice Clarence Thomas complained that the prospect of getting a bailout — i.e. getting out from under Section 5 — is essentially a “mirage.” The Justice Department is eager to prove it’s not, because the court is hearing a new case Wednesday, Shelby County vs. Holder, which the court could use to throw out the whole regime.

Liberals are horrified by any talk of getting the feds out of the election business, somewhat understandably. The passage of the Voting Rights Act is a treasured chapter in American political history. It’s also not surprising that much of the argument for keeping it unreformed rests on the emotional resonance of the civil rights movement half a century ago and the alleged popularity of the law.

Nostalgia is a weak argument for any law, or so liberals usually tell me. As Justice John G. Roberts Jr. wrote in 2009: “Past success alone … is not adequate justification to retain the preclearance requirements.” And, popularity shouldn’t be an issue at all. The popularity of slavery was one reason the court could hand down an opinion such as Dred Scott.

President Obama (who twice carried Virginia) disagrees. If the preclearance requirement were stripped, he said, it “would be hard for us to catch those things up front to make sure that elections are done in an equitable way.” That’s true. But that logic basically amounts to turning the Civil Rights Division into a permanent department of pre-crime.

It’s true Congress keeps renewing the law (the last vote extends Section 5 until 2031), but one reason is that liberal politicians, journalists and activists are quick to demagogue anyone in favor of retiring it as being “anti-civil rights,” in much the same way any criticism of the Violence Against Women Act is instantly spun as support for wife-beating.

Whether the court ends up throwing it all out or simply goading the Justice Department to do the right thing, the court is playing a useful role by forcing our system to acknowledge the fact of racial progress.

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