WASHINGTON — When Wednesday John Roberts and the solicitor general questioned whether any southern concentration of racism was a rationale for Voting Rights Act Section 5′s constitutionality, cynics responded as though the chief justice was blind to a vicious national legacy. One American Prospect article — leaning on a 2005 analysis that concluded the U.S. South was especially racist — was redistributed through Twitter at least 300 times over a day.
The American Journal of Political Science analysis, aforementioned, “Old Times There Are Not Forgotten: Race and Partisan Realignment in the Contemporary South [PDF],” concluded “the regional gap in racial conservatism has not closed since [the end of the Civil Rights era.]”
The exchange between the justice and administration lawyer was in the context of a Supreme Court challenge to the decades-old Voting Rights Act, by Alabama’s Shelby County — a challenge on whether mostly southern states, due to Section 5′s “preclearance requirements,” should have to run voting-law changes by authorities in Washington.
Here were words of the two:
CHIEF JUSTICE ROBERTS: General, is it — is it the government’s submission that the citizens in the South are more racist than citizens in the North?
GENERAL VERRILLI: It is not, and I do not
know the answer to that, Your Honor, but I do think it was reasonable for Congress –
CHIEF JUSTICE ROBERTS: Well, once you said it is not, and you don’t know the answer to it.
GENERAL VERRILLI: I — it’s not our submission. As an objective matter, I don’t know the answer to that question. But what I do know is that Congress had before it evidence that there was a continuing need based on Section 5 objections, based on the purpose-based character of those objections, based on the disparate Section 2 rate, based on the persistence of polarized voting, and based on a gigantic wealth of jurisdiction-specific and anecdotal evidence, that there was a continuing need.
Preclearance requirements mandate that nine states, and localities in seven others, get federal clearance before modifying voting laws. Under the challenged Section 5, localities and states serve in discrimination cases as plaintiffs, who in turn file grievances with the Justice Department.
At The Nation, columnist Ari Berman weighed in Wednesday evening, espousing that southern voter suppression attempts in particular were alive and well:
“[S]ix of the nine fully covered states under Section 5 passed new voting restrictions since 2010, including voter ID laws (Alabama, Mississippi, South Carolina, Texas and Virginia), limits on early voting (Georgia) and restrictions on voter registration (Alabama and Texas), compared to only one-third of noncovered jurisdictions during the same period.
In a possibly foreshadowing 2009 decision involving a Texas voting district, Chief Justice John Roberts wrote in the majority’s 8-1 opinion, “The evil that [Section 5] is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions.” As preclearance opponents argue that the South’s legacy of systematic voter fraud and intimidation is too far in the past for such stringent federal oversight to be relevant, what is clear is that state and locality requests for voting law changes have seen a steady dive, according to Civil Rights Division data.
The political science journal’s authors, Nicholas Valentino and David Sears, went so far as to suggest they were “underestimating true regional differences in racial conservatism, because of white Southerners’ greater tendency to hide true prejudices, and underestimating true regional differences in the linkage of racial attitudes to partisanship, because such correlations should contain more error in the South.”