Posted on March 20, 2009

Conservatives Invoke Obama in Voting Rights Act Challenge

Peter Wallsten and David G. Savage, Los Angeles Times, March 18, 2009


Conservative legal foundations and the Republican governor of Georgia, challenging key parts of the Voting Rights Act, filed briefs in the Supreme Court this month pointing to racial progress and a high black turnout in the fall election. They said Obama’s victory heralded the emergence of a colorblind society in which special legal safeguards for minorities are no longer required.


The Supreme Court sounded a similar note last week in limiting the reach of the Voting Rights Act. The law’s goal is “to hasten the waning of racism in American politics,” not “to entrench racial differences,” said Justice Anthony M. Kennedy.

That decision, in a North Carolina case, said that states and municipalities need not consider race when drawing voting districts, except in areas where blacks or Latinos form a majority.

The Texas case to be heard next month will decide whether certain states and localities, mostly in the South, must continue to obtain Justice Department approval before changing voting districts, polling locations or other election procedures. The requirement is viewed as something of a badge of dishonor in the South.


Conservatives said they planned to apply the Obama argument in the court of public opinion as well. It could play a role, for example, in potential ballot initiatives in 2010 in Arizona and Missouri seeking to roll back affirmative action laws.

“We will say, ‘How do you account for the election of Barack Obama?’ ” said Ward Connerly, a leading anti-affirmative-action activist. “If we can’t get rid of these laws now with Obama, I don’t know what yardstick we’re going to use.”

Civil rights advocates bristle at the assertion that Obama’s victory signals it is time to dismantle the Voting Rights Act and other laws.

“It’s an overly simplistic argument that doesn’t reflect the facts,” said Jon M. Greenbaum of the Lawyers’ Committee for Civil Rights Under Law.

He and others pointed to state-by-state voting data from 2008, presented to the Supreme Court, showing persistent racial polarization in the Deep South and elsewhere. In Alabama and Mississippi, for example, Obama won only about 1/10th of the white vote–less than his party’s white nominee in 2004, Sen. John F. Kerry, who waged a far weaker campaign than Obama. Kerry won 19% of the white vote in Alabama and 14% in Mississippi.

The gap was even bigger in Louisiana, where Obama won 14% of the white vote, down from Kerry’s 24%.

“How can [conservatives] make this case, when the effete Massachusetts liberal with a rich foreign wife who loves windsurfing and spandex got more white votes in Mississippi–in much less negative economic circumstances–than a highly popular candidate who was as hot as can be?” asked David Bositis, an expert on racial voting patterns at the Joint Center for Political and Economic Studies.


Kennedy, the swing vote in last week’s 5-4 ruling on voting districts, appeared to reject the symbolism of Obama’s victory. “Some commentators suggest that racially polarized voting is waning–as evidenced by, for example, the election of minority candidates where a majority of voters are white,” he wrote.

“Still,” Kennedy continued, “racial discrimination and racially polarized voting are not ancient history. Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions.”


Next month, the court will take up a racially charged case from New Haven, Conn., that could revise the rules for workplace tests and promotions. White firefighters sued the city after it canceled the use of a civil service exam when the results showed that whites, but not blacks, would win promotions. The white firefighters say the court should rule that when a “merit selection” system is in place, race should play no role in who wins or loses.


By those measures, the Voting Rights Act of 1965 has done its work. In 2006, 73% of eligible blacks were registered to vote in Alabama, about the same proportion as among whites. And African Americans held 25% of the seats in the state Legislature, the same percentage as the African American population in the state.


[Gov. Sonny Perdue of Georgia] told the Supreme Court it was nonsensical for the federal government to require special supervision of Georgia “when an African American candidate for president receives a greater percentage of the vote than his white predecessor candidates.”


Obama and his administration reject the conservatives’ arguments.

Atty. Gen. Eric H. Holder Jr., who is black, vowed in Selma last week to protect the voting rights law, which he said was “under attack.” White House spokesman Ben LaBolt said that even as Obama acknowledges “tremendous progress” since the Voting Rights Act was enacted, “he does not presume that his election or those advancements have wiped out the need for laws that protect the voting rights of all Americans.”

Federal oversight under the Voting Rights Act is most important in small towns and rural counties across the South, said Laughlin McDonald, director of the ACLU’s Voting Rights Project in Atlanta. The law requires changes in election districts and procedures to be cleared in advance by the Justice Department.

For example, some school boards and city councils sought to move to citywide elections when blacks held majorities in some voting districts. Because this switch would permit a white majority to prevent black candidates from winning any seats, the Justice Department could block it.