Listening to Du Bois and Lincoln: The Supreme Court and the Voting Rights Act

To worry about federalism -- as important as federalism is -- would be a red herring. To dismiss the bipartisan consensus would amount to mocking the deliberative character of the legislative process.
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The Voting Rights Act was a monumental achievement of the modern struggle for racial equality in the United States. Now, in what might become an historic turning point, the constitutionality of Section 5, the Act's main enforcement mechanism, is before the Supreme Court in a case from Alabama, Shelby County v. Holder.

If the Court invalidates this provision of America's historic Voting Rights Act then many will actually consider that outcome a sign of progress. On this view, it's time to stop perpetuating an electoral regulatory system that, far from addressing real problems with access to the ballot, instead falsely supports the myth that minority voting rights still need protection. It's time to move on; it's a different country now.

But a review of the nation's troubled racial past reveals that the long fight for equal citizenship has been subject to shocking reversals. An invalidation of the Voting Rights Act by the Court this coming June, when the case is handed down, would hardly amount to a terrible failure. But it would certainly mean saying that, somehow, what our deeply troubled history teaches us has become abruptly irrelevant. That would be a curious way to think about America's political evolution -- and it would ignore the sensitivity to history that informed the renewal of the Voting Rights Act just six and a half years ago.

It Took Two Reconstructions

The acquisition of full democratic political rights for African Americans advanced through two historic Reconstructions of law, elections, and the capacities of the federal government to enforce equal treatment. The First Reconstruction remade southern politics in the decades following the Union victory in the Civil War; and the Second Reconstruction re-enfranchised African Americans and transformed all aspects of race relations in the mid-twentieth century.
Both Reconstructions furthered and depended upon biracial democratic alliances; and both opened new leadership posts and legislative careers to African Americans (and more recently to Latinos as well). The election of Barack Obama as the first African-American president could not have happened without the Second Reconstruction.

The First Reconstruction and Its Undoing

The First Reconstruction began during the Civil War itself as President Abraham Lincoln and members of Congress laid plans for the restoration of the Union and the implementation of partial black suffrage rights (partial in that they left out black and white women and Chinese and Native Americans.) The changes that happened then pushed forward through to the end of the 19th century, far longer than is commonly known. As late as the mid-1890s, black political movements and their Republican allies were able to win at least sporadic victories in southern state politics. In North Carolina, for example, a biracial coalition of Populists and Republicans briefly gained control of the governorship and legislature and managed to elect two U.S.
Senators and an African-American representative to the House of Representatives.

But white supremacists in the South undid the electoral accomplishments of the First Reconstruction. Legal disenfranchisement of African Americans began in Florida in 1889 and was completed by Georgia in 1907. At that juncture, the United States marked an unhappy "first" in the world-historical march of democratic political rights. A major, previously enfranchised group of Americans lost the right to vote and was pushed entirely out of party and electoral politics -- all by quasi-democratic means. State-level referenda, statutes, and constitutional amendments were used to create burdensome prerequisites to voting rights by African Americans. Although extra-legal violence played a role, the success of "legal" disenfranchising maneuvers depended on acquiescence by the Supreme Court and the national political parties. Federal judges and Republican politicians looked the other way as southern Democrats did their deeds. No other democracy has ever repeated on the same scale such a process of legally unwinding democratic voting rights.

Take Two in the Mid-20th Century

The Second Reconstruction again rebuilt U.S. and southern politics to include African-American voters. Starting in the mid-1940s, the NAACP mounted the first great voter registration drives in the wake of an important Supreme Court case outlawing whites-only primaries run by the Democratic Party in the South. Black registration increased rapidly from the 1940s, before a strong white backlash to the NAACP drive that set the stage for the well-known struggles of the 1950s and 1960s. The next major push for a full range of equal rights led to the Voting Rights Act of 1965. Its implementation was strongly supported by the Supreme Court. In particular, the Court helped to ensure minority office-holding as well as voting rights.

Broad bipartisan support also sustained the implementation of the Voting Rights Act. Politicians understood the obligations of our history. Congress has indeed renewed and strengthened the Act four times, sometimes pushing into territory the Supreme Court was reluctant to sanction. The most recent re-authorization in 2006 was strongly backed by President George W. Bush, and by most Republicans as well as all Democrats in Congress.

Listening to Du Bois and Lincoln

Now the Supreme Court will closely review that bipartisan, legislative-executive consensus. The Court may not overturn the 2006 renewal. It ducked a chance to damage the Voting Rights Act in 2009; it may step aside yet again. But if a majority of the Court does invalidate the Act it most likely will do so, in part, on the view that the so-called "federalism costs" of the Voting Rights Act outweigh the considered decision of Congress in 2006. The idea here would be that federal supervision of the state and local jurisdictions that are covered by the Voting Rights Act now unduly burdens the relative autonomy of such governments that is required for federalism. We need to let our federal system work, would be one finding.

Also, the Court may think it's time for Congress to be much more circumspect about expanding rights. The Court likes the First Amendment a lot, and it likes the rights of rich people to express themselves. But a majority of it seems to think that Congress should have less to do with making and enforcing rights than the plain letter of the 14th and 15th Amendments say. That conservative majority may conclude that the bipartisan consensus of 2006 was actually a rush to a false judgement taken at the expense of the proper moderation that Congress should show.

Still, our history matters. When the 2006 Congress renewed the Voting Rights Act, and when President Bush signed the renewal, they all thought that our history matters, that it weighs on us today -- and that it gives us special responsibilities. To worry about federalism -- as important as federalism is -- would be a red herring. To dismiss the bipartisan consensus would amount to mocking the deliberative character of the legislative process.

On this question of history mattering, one person we ought to listen to is the great American sociologist, W.E.B. Du Bois. In an essay in Collier's Weekly in 1906, Du Bois wrote:

"We have a way in America of wanting to be 'rid' of problems. It is not so much a desire to reach the best and largest solution as it is to clear the board and start a new game. For instance, most Americans are simply tired and impatient over our... social problem, the Negro. They... want to simply be done with it and hear the last of it. Of all possible attitudes, this is the most dangerous."

Du Bois recommended instead, in Victorian but apt language, "Freedom and Friendship."

We should also be listening to Abraham Lincoln. Abraham Lincoln understood the special obligations of our national history. His Second Inaugural Address was all about that and he ended it on just the right note, "With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in."

The Supreme Court would do well to think in such large terms as those as Du Bois and Lincoln imagined. The work of protecting voting rights has not changed very much since 2006. Voting rights are still very much a live issue in today's America. We need to sustain the commitment that was renewed in 2006 to "finish the work we are in."

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