Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

African-American Turnout and the Fate of the Voting Rights Act

Timothy Sherratt


January 11, 2013

By Timothy Sherratt

If the 2008 election of the country’s first African-American president offered a hopeful benchmark in the dismal history of race relations, his re-election confirms that the President has now passed an even weightier democratic test. But as 2013 begins, the Supreme Court has announced arguments in cases that may, ironically, mark the passing of the era in which race commanded legislative and judicial attention. We may come to view the Obama years as the years when America turned away from the instruments created to combat racial discrimination. But will this mark victory or defeat?

Among the cases set for argument is Shelby County v Holder. Section 5 of the 1965 Voting Rights Act required some 16 jurisdictions, most of them southern states, to “pre-clear” with federal authorities any changes to their election practices. Nearly 50 years on, Shelby County, Alabama, has cried foul. Its principal argument is that the Old South is no more and that the pre-clearance provisions in Section Five amount to unwarranted federal meddling that violates the Tenth Amendment. The Tenth, of course, is the Amendment that reserves to states those powers not expressly denied to them or transferred to the federal government by the Constitution.

Attorney General Eric Holder argues that the act is not burdensome because it includes a “bailout” provision. If the covered jurisdiction can show to the satisfaction of a three-judge federal panel in Washington that it has been clear of violations for 10 years, it may gain release from Section 5 coverage.

The Voting Rights Act has changed since 1965. With each of several renewals through 2006 have come amendments. It has been expanded to require states to provide election materials in multiple languages, for example. Some argue for an even more powerful act. In the run-up to last fall’s election, controversial voter identification laws could not be successfully challenged under the Act in states not required to pre-clear their actions.

It is easy to find commentary predicting a hostile reception to Section 5 in the Supreme Court this spring. In related cases, Chief Justice Roberts has voiced concerns about its constitutionality. The sibling issue of affirmative action is also under review, and here, too, the Court is expected to place further restrictions on its scope.

Is Section 5 no longer necessary, or would its invalidation turn back the clock?

The success of the Voting Rights Act is unquestioned as far as enforcement in the jurisdictions affected by Section 5 is concerned. Discriminatory practices that had prevailed were outlawed, and the law’s enforcement provisions prevented their return. What is harder to measure is accompanying attitudinal change. That is what Shelby County essentially insists has occurred, arguing that the Act is now superfluous.

Shelby County may be right. According to a Dec. 26 Pew Research article, African-American turnout in 2012 may have risen again (the full results are yet to be published) with blacks making up 13 percent of total vote on Election Day against their 12 percent of the voting age population.  According to Pew, when Census data is published, we may learn that in 2012 black turnout exceeded white turnout for the first time.

Where racist tactics persist in electoral politics, their root motivation may be victory as much as xenophobia. Racism remains racism, of course, and is not thereby transformed into something else, let alone something tolerable. But given these turnout levels it seems just as likely that American politics will be witness to strenuous attempts to attract the votes of minorities as to neutralize their impact. Democratic Party success in attracting black and Hispanic voters in 2012 has gotten Republican attention, certainly.

Haltingly, perhaps, the United States has become more pluralistic, a situation aided by the passage of the Voting Rights Act nearly a half-century ago. Paradoxical as it appears, that Act may have served its purpose and the focus of legislative efforts to counter distortions in the electoral process may now lie elsewhere.

—Timothy Sherratt is Professor of Political Science at Gordon College in Wenham, Massachusetts.

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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”