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Incumbent Rights Act
Why Congress loves racial gerrymanders.

Monday, June 12, 2006 12:01 a.m. EDT

We're not in the business of making predictions. But you can be fairly certain that the coming debate over updating the Voting Rights Act will sidestep what's really at stake, which isn't the right to vote but rather the power of politicians to pick their voters through gerrymandering.

Unless Republican backbones miraculously stiffen, expect the expiring penalty provisions of the Voting Rights Act to be renewed this year for another quarter-century, and expect it to happen with huge bipartisan majorities pretending that this draconian infringement of federalist principles is still necessary in 2006.

Partly this is because it's an election year and the issue lends itself to demagoguery. The Voting Rights Act was crafted by Congress in 1965 to address black disenfranchisement in the Jim Crow South, and the circumstances that made federal intervention appropriate 40 years ago still occupy the memories of many Americans today.

Congress could reassure Americans that the most important provisions of the Voting Rights Act--the bans on poll taxes and literacy tests and grandfather clauses--are permanently enshrined in law and thus not in need of renewal. But the political reality is that an embattled GOP Congress has no interest in allowing Democrats to use opposition to something called the Voting Rights Act against Republican candidates in November.

There's another, even more cynical, reason so many in Congress favor renewal, and it has to do with the Section 5, or "preclearance," provision of the law. Under Section 5, Deep South states and a few others must get permission from the federal government before making any changes to their voting practices. By any measure today, from voter registration and participation rates to the success of minority candidates, the intervention has served the nation well. But having accomplished its goals, this provision of the Voting Rights Act is now being abused by political incumbents.

Section 5 requirements stipulate that new redistricting plans can never reduce the number of minority voting districts. And the politicians have used this as an excuse to create Congressional districts that have nothing to do with geographic integrity and only serve their party's election prospects. When Republicans are re-drawing the Congressional maps, they heavily concentrate minority voters into safe Democratic districts, which has the effect of creating even more safe Republican districts.

When Democrats are in control, they also try to divvy up these minority voting areas, albeit somewhat differently. Their goal is to maintain enough of a core black population in certain seats to satisfy the Section 5 requirement. But Democrats also want to spread enough other black voters around predominantly white neighborhoods in hopes that white liberals can also continue to get elected.

Thus has a law intended to protect minority voting rights been transformed into a tool for creating safe Congressional seats--and all the problems that come with entrenched political incumbents who are primarily concerned with the demands of their special interest patrons.

Renewal legislation was voted out of the House Judiciary Committee last month, 33-1, with Republican Steve King of Iowa as the lone, brave holdout. House Judiciary Chairman James Sensenbrenner is currently leaning on his Senate counterpart, Arlen Specter, to do the same. Everyone, including the White House, wants this off the table as soon as possible.

Some Republicans are taking comfort in the belief that the Section 5 provision may be unconstitutional at the end of the day. And it's certainly true that the Supreme Court hinted as much in decisions like Shaw v. Reno (1993), which held that a "reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who have little in common with another but the color of their skins, bears an uncomfortable resemblance to political apartheid."

Ten years later, in Georgia v. Ashcroft, the High Court said, "the Voting Rights Act, as properly interpreted, should encourage the transition to a society where race no longer matters." The reauthorization would do the opposite. If Congress and the President are counting on the Supreme Court--which now has a Texas redistricting case before it--to spare them from the job of clarifying this matter, they should recall that such a strategy didn't work out so well in the case of McCain-Feingold's campaign finance reform.

http://www.opinionjournal.com/editorial/feature.html?id=110008505