‘Whiteness of Whiteness’ Resists The Voting Rights Act

The United States Supreme Court began hearing oral arguments in the case Shelby County v. Holder, which examines the constitutionality of Section 5 of the Voting Rights Act.  This key provision requires a process called “preclearance,” consisting of a panel of judges who determine whether a change in voting standards is fair.  Its historical purpose

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The United States Supreme Court began hearing oral arguments in the case Shelby County v. Holder, which examines the constitutionality of Section 5 of the Voting Rights Act.  This key provision requires a process called “preclearance,” consisting of a panel of judges who determine whether a change in voting standards is fair.  Its historical purpose was to combat any unjust voting regulations that would prevent minorities from exercising their right to vote.

Understanding the history behind the Voting Rights Act is imperative, as its historical background highlights the necessity of Section 5’s protections in the status quo.  In the late 1800s to early 1900s, southern states made grave attempts to prevent—or at least dilute—the minority vote by writing new voting regulations into their constitutions.  Measures such as poll taxes, which required monetary contribution as a prerequisite to voting, kept poor minorities (namely African-Americans) from having a vote, despite being declared equal under the 14th Amendment.  Other seemingly subtle, yet offensive attempts to block the minority vote included literacy tests with exceptions called grandfather clauses, which allowed one to vote if his ancestors had voting rights preceding the Civil War.  This exception meant more opportunities for whites to vote, while simultaneously obstructing African-Americans’ abilities to vote.  Put simply, southern states were finding ways to skirt the new legal reality of equality.

It was not until 1965 when the Voting Rights Act was presented to Congress and subsequently signed into law by President Lyndon B. Johnson.  Included in the Voting Rights Act was Section 5, a necessary historical tool used in cases to strike down poll taxes and other hindering practices.  Section 5 would also be the protection in the future to newer, more sophisticated means of voter suppression.

These modern sophisticated forms of voter suppression are not as blatant.  Rather than explicitly requiring money or passing a test, implicit means are being taken.  Billboards and advertisements reading, “Voter Fraud is a Felony,” covered urban towns and intimidated their voters.  New voter ID requirements (such as those in Pennsylvania) sought to discreetly hinder those who could not afford or could not find time in their work schedules or find transportation to obtain such proper identification to vote.  Long lines made voting a waiting game for youth and elderly citizens, forcing them to endure standing in line up to six hours in some states.  Fortunately, Section 5 came to the rescue of many, as the Department of Justice was able to strike down suppression of votes in states like Florida, Texas, and South Carolina in 2012.

Now, after all the displays of attempts to block certain demographics from voting in the most recent election cycle, the Supreme Court is hearing a case that would effectively make those attempts easier.  Justice Scalia seemed to ignore such evidence, excusing the issue altogether by referring to the Voting Rights Act as “a perpetuation of racial entitlement.”  As a self-declared constitutional “texualist,” Scalia appears to now be taking on a new role of being the arbiter over whether racism is still present in society.

Justice Roberts, too, has taken a dangerous outlook on the issue of race in America.  His mentality is such that Americans should be colorblind, meaning society sees no differences in color.  While this sounds like it would eliminate issues of racial discrimination by not seeing differences in race at all, it actually ignores the history of racial hardships and the reason why America has certain protections.  Justice Roberts has fallen victim to the “whiteness of whiteness,” a phrase coined by Jane Lazarre, who writes on racial matters in America.  The “whiteness of whiteness,” as she describes, is “that terrible and inexcusable ignorance of racism which denies history and reality.”  The latter “whiteness” refers to the lack of understanding of the historical black struggle, while the former “whiteness” refers to a cultural blindness.  Perhaps Justice Roberts means well by attempting to see no color; however, such a mindset ignores the true racism that still exists throughout America today, resulting in an underestimated need for laws such as Section 5 of the Voting Rights Act.

The Supreme Court’s uncertainty about the Voting Rights Act’s place in society today is troubling.  What could be the motive behind eliminating a democratic protection?  Even Congress, who cannot seem to agree on most anything, has demonstrated bipartisan support for renewing the law repeatedly.  In fact, it has been reauthorized four times—1970, 1975, 1982, and 2006—each time by a Republican president.  The most recent reauthorization in 2006, signed by President Bush, passed in the Senate on a vote of 98-0 and in the House on a vote of 390-33.

Despite the bipartisan recognition of the Voting Rights Act’s necessity today, Shelby County in Alabama has decided to bring the law before the Court, challenging its constitutionality.  Shelby County has multiple reasons for challenging the law, each reason seeming to fly in the face of reality.

First, Shelby County argues that the “current burdens” of the law (preclearance) must show “current needs,” such as contemporary discrimination.  One need not look any further than the over-100 voter suppression laws nationwide that were introduced in 2012.  Gerrymandering, voter ID bills, and restrictions on early voting present more than enough evidence to demonstrate current needs.  The provision is a protection that courts used in 2012 to strike down the offensive, sophisticated attempts to intimidate and exclude voters.

Second, the plaintiffs argue that even with evidence of historical discrimination, there may not be evidence of discrimination today.  This is a fair argument; except, Alabama still sits at No. 2 on the list for Section 5 enforcements, as Justice Kagan noted.  This fact, combined with the number of voter suppression attempts just a few months ago, seems as though there remains reasonable evidence of discrimination.

Finally, Shelby County reinforces the argument by asserting that even if there is discrimination demonstrated today, the formula for determining which states must comply with Section 5 is unconstitutional because of the voter data it uses from 1972.  However, while the provision does use such data, it does not discount the fact that states still demonstrate restrictive voting practices.  Additionally, and more convincingly, Section 5 contains a “bail out” option in which covered jurisdictions (such as Shelby County) may apply for an exemption from preclearance.  The jurisdiction must demonstrate a consistent record of nondiscrimination for ten years in order for a judge to grant a bail out.  So, it seems, the easiest route for Shelby County to take—and the most just—is not to remove a protection from minorities all across the country.  Rather, it should simply demonstrate nondiscriminatory practices in its own county.  This means refraining from voter intimidation, discontinuing gerrymandering, and allowing the democratic right to early voting opportunities.  Put simply, they may easily earn their way out of preclearance by committing to fair voting practices.

Section 5 and the preclearance it requires should not be viewed as an extra burden with which southern states must cope.  It is a protection that is needed due to historical discrimination and contemporary racism.  As a democratic society that values equality, America must not become complacent in its view toward racism; the “whiteness of whiteness” should not become a norm.  Striking down this provision of the Voting Rights Act is to ignore the history of racism and the modern, elusive attempts to continue silencing minorities.

To this day, the Voting Rights Act and Section 5 remain a necessary protection against the racism that still permeates throughout American society.

Dylan Kama

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