It Will Always Be 1965

...Quite apart from the federalism issue, by the late 1980s, three developments were turning Section 5 of the Voting Rights Act on its head, transforming it into something well beyond the bounds of the original intent into a mechanism for creating safe majority-minority voting districts...

...To our nation’s credit, every offi cial Jim Crow-era voting barrier—most important, the literacy test—is gone...

...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...

...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...

...A study conducted by the American Enterprise Institute shows that there is no quantifi able difference between minority voting rights in covered and uncovered jurisdictions...

...Hence, creating racially homogenous voting districts now required just the sorts of redistricting contortions that the new software made possible...

...In other words, racial gerrymandering skyrocketed...

...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...

...The only way a jurisdiction can escape this federal oversight is to exercise the statute’s “bailout” provision, which allows a covered jurisdiction whose record of nondiscrimination satisfies the Justice Department to be exempted from the preclearance requirement of Section 5. This section was set to expire after fi ve years, in 1970, but it was repeatedly reauthorized by Congress, for the third time in 2006...

...The second development was the accelerating growth of suburbs...

...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...

...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...

...In 1965, Congress had volumes of empirical evidence to justify this extraordinary requirement...

...If the plaintiff—a small, residential subdivision of 3,500 people north of Austin, Texas—prevails, racial gerrymandering, among other distortions to our body politic, will be greatly diminished...

...In early October, the Supreme Court will be presented with one of the most important voting rights cases of the last two decades...

...As one election law scholar told Congress during the reauthorization hearings, “Bull Connor is dead...

...If anything, ending racial gerrymandering and the “political apartheid” it engenders would strengthen, not weaken, the voice minorities have in our electoral system...

...So it comes as no surprise that these groups—all of them defenders of racial gerrymandering—have joined the fray...

...Now the Supreme Court must either affi rm the lower court’s ruling or take the case up for oral argument...

...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...

...Congress should have allowed preclearance to expire in 2006...

...A few months ago, a three-judge panel in the U.S...

...It is the greatest affront ever to our system of constitutional federalism...

...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...

...Although the lawsuit is complex, the central issue to be resolved by the justices is whether Section 5, a “temporary” provision of the 1965 Voting Rights Act, can still be applied today to a handful of mostly southern states and jurisdictions, which include the Austin district...

...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...

...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...

...Nevertheless, in the Jim Crow South of the 1960s, the preclearance provision of Section 5 was indispensable...

...After all, for decades, southern offi cials had successfully engaged in pernicious, never-ending gamesmanship to disenfranchise blacks...

...The preapproval requirement of Section 5 is unique in our nation’s legislative history...

...It Will Always Be 1965 . . . To the voting-rights activists...

...Any change—from moving a polling location across the street to an entire congressional redistricting—must be preapproved (or, in the lingo of the statute, “precleared...

...They’re wrong, of course...

...Without this draconian measure, the Voting Rights Act’s central mission—ensuring blacks could register and vote—would have gone unmet...

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

...Neither before nor since has Congress enacted a law like this one, which compels a state or one of its sub-jurisdictions to seek permission from the federal government before one of its own laws or rules can go in effect...

...But that was then...

...Unlike in 1965, no evidence exists today that shows systematic, widespread disenfranchisement of black (or Hispanic) voters in the jurisdictions covered by Section 5. Not only is Bull Connor dead and buried, but by every factor social scientists use to measure electoral opportunity for minority voters—registration rates, election participation, and success of minority candidates, to name a few— minorities actually outpace whites in most Section 5 jurisdictions...

...Section 5 forbids all of nine states (mostly the old Confederacy, plus Arizona) and parts of seven others from enacting any change to voting practices or procedures without the consent of either of two entities of the federal government—the attorney general or the District Court for the District of Columbia...

...The case, Northwest Austin Municipal Utility District Number One v. Mukasey, will decide the constitutionality of Section 5 of the recently reauthorized Voting Rights Act...

...This made it possible to create voting districts by stringing together extremely small race-specifi c geographic units, however tangentially connected...

...BY EDWARD BLUM Whenever the NAACP, People for the American Way, the American Civil Liberties Union, the Mexican American Legal Defense and Educational Fund, the Lawyers’ Committee for Civil Rights Under Law, and the Public Citizen Litigation Group intervene in a lawsuit, it is safe to assume they believe much is riding on the outcome...

...And, indeed, much is...

...In other words, requiring Texas, Arizona, and Virginia to have their local laws preapproved by Washington, but not Arkansas, New Mexico, and Tennessee makes no sense in 2008...

...Because candidates in these safe districts have little need to temper their positions in order to court voters of divergent points of view, the fi rst victim is legislative compromise...

...It is now slated to expire in 2032, 62 years later than originally intended...

...Section 5 imposes a guilty-until-pronouncedinnocent standard on nearly 25 percent of our nation’s population...