The Voting Rights Act has worked for almost 50 years to remove racial discrimination from the electoral process and prevent its return. Wednesday the U.S. Supreme Court is expected to hear oral argument on the constitutionality of Section 5, one of the act’s most powerful provisions. Section 5’s work is done, this argument goes, and the provision has outlived its usefulness. Yet some of Section 5’s most important work lies beyond its technical application. Section 5 requires that jurisdictions with a documented history of racial discrimination in voting seek federal approval for any voting changes. The aim is to ensure that new voting laws will not “retrogress” — or harm — minority voting rights. It subtly and constructively inserts race into electoral decision-making — creating a race consciousness among decision-makers that can often preempt discrimination. This deterrent effect, and its impact on the discourse of race in elections, may be Section 5’s most important — and unfinished — work.
Section 5 brings race into the room every time electoral decisions are made in covered jurisdictions. It is not only by Section 5’s wording, however, that race is part of the discussion when politicians re-raw district lines, election administrators contemplate voting changes and judges incept new electoral schemes. Race has had a reserved seat at the table of American democracy since the nation’s founding.
The well-documented evolution of voting rights underscores the destructive use of race to deny voting rights and political equality to minority citizens. The Supreme Court acknowledged in Shaw v. Reno that “the legislature is always aware of race” when it draws district lines.
Section 5, however, has changed the discourse around race in backrooms and in courtrooms by requiring that electoral decision-makers are not only aware of race but also are conscious of the racial impact of their actions and avoid racial harm. Indeed, Section 5’s anti-retrogression standard directs jurisdictions subject to oversight either to advance or, at minimum, protect minority voting rights. This framework also informs the voting rights discourse beyond Section 5 — suggesting that the only right direction to move on racial equality in elections is forward.
Full Article: Making sure race is considered | The Great Debate.