How to Save the Voting Rights Act

We need to stop trying to untangle racism and partisanship by agreeing on one simple idea. 

North Carolina
People wait in line to vote at an early voting site on Oct. 18, 2012, in Wilson, North Carolina.

Photo by Sara D. Davis/Getty Images

In 2010, the Simpsons featured a news helicopter emblazoned with the logo: “FOX News: Not Racist, But #1 with Racists.” That slogan might be applied to today’s Republican Party, which in recent years has actively passed voting laws that make it harder for poor and minority voters to vote. Whether to label the Republican Party “racist” isn’t an academic exercise. The question is actually at the heart of lawsuits over the future of voting rights in Texas and North Carolina. It’s also a question with historical resonance, particularly on the eve of the Voting Rights Act’s 50th anniversary this week.

The five-decade history of the Voting Rights Act is told masterfully in Ari Berman’s new book, Give Us the Ballot: The Modern Struggle for Voting Rights in America. Berman starts around the time of the Selma, Alabama, marches, but unlike the movie Selma, Berman goes on to give us the rest of the history: the expansion of voting rights protections in 1970 and 1975 to include Latinos, Native Americans, and others over the objections of racists, many in the Democratic Party; the important 1982 rewriting of Section 2 of the Voting Rights Act, providing additional protections for minority voters nationally, and (now Chief Justice) John Roberts’ key role for the Reagan administration in unsuccessfully fighting against the expansion; hot disputes over voting rights in Florida in the 2000 election; the controversial renewal of the expiring “preclearance provisions” of the act in 2006 that continued to require states with a history of discrimination to get federal approval before changing their voting laws; and the ongoing “voting wars” that accelerated when Roberts led the court’s conservatives in striking down the 2006 preclearance renewal in Shelby County v. Holder.

Berman’s book, like Jim Rutenberg’s excellent cover story for the New York Times Magazine on the 50th anniversary of the Voting Rights Act, views the struggles over voting rules primarily through the lens of race. And although that is an essential lens to apply, it downplays the growing role of partisan politics in this story, a partisan struggle that is having profound ramifications for the newest wave of court cases involving voting restrictions. Put simply, the Republican Party has reasons unrelated to racial animus to push new voting restrictions.

When Congress passed the Voting Rights Act in 1965, the Democratic Party was dominant in the South, and the Republican Party still had many liberals in its ranks. In part thanks to the Voting Rights Act, which was tremendously successful in fostering the registration and turnout of blacks in the South, the political parties began to realign. Today, the Republican Party is the party of conservatives, and in the South that means primarily white conservatives, and the Democratic Party is the party of liberals, and in the South that means primarily blacks.

Many of the ideological leaders of the Republican Party, especially outside the South as it emerged in the 1980s and 1990s, were conservatives but not racist. Think of Roberts, who adheres to a “colorblind” vision of the Constitution and who seems to believe that racism isn’t a major problem in American society anymore. While acknowledging that racism still exists, he wrote in his Shelby County opinion that “things have changed in the South.”

But while most Republican leaders are not themselves racist, they have long promoted policies that build on white racism, resentment, and fears of losing dominance in American society. From opposition to busing and affirmative action in the 1970s and 1980s to calls to “take our country back” in more recent years, the Republican Party is certainly the No. 1 party of racists, even if it is not racist itself.

And this brings us to Republican electoral strategies, especially in the South. This past term the Supreme Court decided a redistricting case out of Alabama in which the state’s Republican legislature shoved black voters into fewer districts. The court sent the case back to the district court to determine if race was the predominant factor in creating these districts, which would make the districts unconstitutional.

One view of the redistricting is that the Alabama legislature was motivated by race. Another is that the redistricting was about securing Republican Party advantage: Put blacks—the state’s reliable Democratic voters—into fewer districts and you end up with more Republican districts. But the plaintiffs alleged that Alabama legislators were up to something a bit more subtle: Make sure all the Democratic districts have black representatives so that white racist voters would think of the Democratic Party as the “black party.”

Thinking about whether the Republican Party is motivated by race or party matters not only for these “racial gerrymandering” claims. It is also key to the Voting Rights Act disputes currently in the courts.

Since 2000, we have seen a wave of Republican legislatures passing rules to make it harder to register and vote. One of the lessons of 2000, as both Berman and I have recounted, is that changes to voting rules matter in close elections. So far, attacks that new Republican voting restrictions violate the Constitution because states should not burden voters without good reason have mostly failed. So civil rights activists and Democrats have attacked the laws as Voting Rights Act violations.

In the case of Texas’ strict voter identification law—which made concealed weapons permits sufficient identification for voting but not student ID cards—a federal district court found that Texas enacted its law with a racially discriminatory intent. Texas has defended itself by saying it had good policy grounds for enacting its laws, but at most its laws were partisan, not racist. The case is currently on appeal. In the North Carolina voting trial over a restrictive set of laws that the state enacted just after the Supreme Court eliminated its preclearance requirement in the Shelby County case, the Justice Department and voting rights activists are trying to prove the law violates Section 2 of the Voting Rights Act. It is a tough claim to bring given the standards of Section 2. The best way for the plaintiffs to win the case is if they can prove that North Carolina had a racially discriminatory intent, but there’s usually no smoking gun to support such claims.

Why can’t those suing just point to the North Carolina legislature’s bad partisan intent? After all, most observers recognize that the state’s claim that its law is necessary to prevent voter fraud and instill voter confidence is bogus and that this is all about gaining partisan advantage in the next election. The problem is that the Supreme Court hasn’t recognized partisan intent as reason enough to strike down voting restrictions. It upheld Indiana’s law in 2008 even though it appeared it was passed for partisan reasons.

So we are left with the impossible situation of trying to untangle racial and partisan motives and effects. Especially in the South, with its conflicting racial and party overlap, this is a losing exercise. Nevertheless, civil rights lawyers’ best bet is to attack these laws under the Voting Rights Act and to put the emphasis on race. So in both Texas and North Carolina, the claim is that the Republican legislatures acted as racists. It isn’t clear if the Supreme Court will go along, even if the lower courts continue to make such findings, or if the court will read Section 2 broadly enough to make new voting restrictions illegal absent racial intent.

As we think about what we need best to protect voting rights going forward, the time has come to add protections for all voters. Today, Republicans see the Voting Rights Act as protection for Democrats, not racial minorities. Although Republicans overwhelmingly supported the 2006 renewal of the Voting Rights Act, Senate Judiciary Committee members issued a report that all but declared the law unconstitutional. The Republican Party will not bite on increased protections for racial minorities; efforts to come up with a new preclearance formula after Shelby County have received very little Republican support.

A strengthened Voting Rights Act should start with this proposition: When the state has no good reason for making it harder for people to register and vote, doing so should be illegal. If we can get Congress to acknowledge this fundamental point, we won’t have to worry about parsing racial or partisan intent, and voters throughout the country will be protected. Voting rights will be protected without having to prove Republican racism. We will protect not just minority voters but student voters, military and overseas voters, poor voters, and voters who move around a lot and lose their registrations. I’m not holding my breath that this will happen anytime soon, but a colorblind amendment to the act seems like the only path through a Republican Congress to adding voting rights protections for the next 50 years of the Voting Rights Act.