Conservatives insist the congressional effort to strengthen the Voting Rights Act (VRA) unfairly discriminates against white voters. The claim rests on evidence that’s shaky at best—but could still make it harder for the bill to win the Republican support it needs.
The Voting Rights Amendment Act, unveiled Thursday by a bipartisan group of lawmakers, aims to update the formula used to determine which areas of the country must get federal approval before making any changes to their voting rules—a system known as “pre-clearance.” In June, the Supreme Court struck down the law’s existing formula, under which almost all the southern states were covered, ruling that it was out of date.
In an interview last week with msnbc, Center for Equal Opportunity president Roger Clegg argued that the VRA's pre-clearance system unfairly advantages those claiming discrimination. Clegg’s organization has fought to narrow the application of civil rights laws.
"They don't like these laws, and so they've brought lawsuits, that's fine,” Clegg said, referring to voting rights advocates. “If they can prove that there's been racial discrimination they'll win those lawsuits. Why would the deck be stacked further in their favor?"
Writing last week in National Review, Clegg made an additional argument against the new legislation. Clegg called the bill “color-conscious,” charging that it “offers protections for ‘minority voters’ that it withholds from ‘nonminority’ voters.”
Hans von Spakovsky, a senior fellow at the conservative Heritage Foundation and a persistent critic of aggressive enforcement of civil rights laws, has gone further.
“For the first time, [GOP Rep. James] Sensenbrenner’s bill actually says that the protections of this amendment will only apply to racial minority groups, and they defined them in the law, and it specifically excludes white voters,” von Spakovsky told the Washington Times.
He added, “They’re basically giving a ‘get out of jail free’ card to black elected officials in the South, where they can discriminate all they want against white voters.”
The notion that voting-rights advocates and their political supporters are opposed to applying civil rights laws to anti-white discrimination has become an article of faith among many on the right.
In 2010, Christian Adams, a former voting rights lawyer in the Bush Justice Department, charged that the Obama Justice Department’s handling of the New Black Panther case showed that it does not “want whites and Asians, when they are the discriminated-against minority, to be protected under Section 5 of the Voting Rights Act." (DoJ ultimately obtained a default judgment against the New Black Panther member seen brandishing a weapon outside a Philadelphia polling place in 2008.)
The charge has as little merit in the case of the new VRA legislation as it did when applied to the Black Panther case. There’s a kernel of truth to the first part of von Spakovsky’s claim, but it’s deeply misleading. And the accusation that the bill would let blacks discriminate against whites with impunity is flat-out false.
Here’s what von Spakovsky and Clegg are driving at: Though the original Voting Rights Act refers explicitly to racial minorities in several places, nowhere does it define minorities as non-white. That means whites can be counted as minorities in places where they’re outnumbered by other racial groups. That hasn’t happened often. In 2006, the U.S. Justice Department used the Voting Rights Act to accuse black Democratic officials in Noxubee County, Mississippi of suppressing the local white vote—the first time that the law was used to protect whites from discrimination by blacks.
One part of the new legislation lays out how local jurisdictions—counties or cities, that is—can be placed under federal oversight. They can be “bailed in” if they’ve committed three voting rights violations—essentially, changing election rules in a way that discriminates on the basis of race—within the last 15 years. They can also be bailed in if they commit just one voting rights violation, but also have persistently low minority turnout. For this purpose, the bill defines minority as non-white.
The Voting Rights Act already singles out “language minorities” for special protections—protections far broader than those for nonwhites in the new bill laid out above. The law defines those language minorities as American Indians, Asian Americans, Alaskan Natives or people of Spanish heritage. But it’s true that it hasn’t previously done so for certain racial groups.
Still, the application is remarkably narrow. In practice, the “exclusion” of whites would affect only those cities or counties—not states, which have a separate bail-in process— that have no less than one but no more than two voting rights violations; where whites are the minority; and where whites have had persistently low turnout.
“Given the history of racial discrimination in the country, I'm not sure it'd be constitutional to cover those counties/cities anyway,” said Justin Levitt, an election law expert at Loyola Law School, via email.
In other words, von Spakovsky’s notion that the bill would give blacks a free hand to discriminate against whites is false. Racial discrimination in voting—regardless of the race of the perpetrators and victim—is still barred by the Voting Rights Act, not to mention the Constitution. Indeed, under the new bill, it still could get a county or state bailed in to the oversight regime, if it’s part of a pattern rather than an isolated case.
“I have no idea how this gives a "‘get out of jail free’ card to black elected officials in the South,” said Levitt.
Von Spakovsky’s claim may be inaccurate, but the staunch opposition of conservative legal activists like him and Clegg to the VRA fix could have an impact.
Winning Republican support in Congress will be crucial to the bill’s chances of passage. Already, Rep. Eric Cantor, the number two Republican in the House, has been non-committal, even though a troubling exemption for voter ID laws in one section of the bill was reportedly included to win his backing. If the false notion takes hold on the right that the legislation opens the door to anti-white discrimination, it could make it harder for some GOPers—especially those in deep red districts with few non-white voters—to support.
Adam Serwer contributed reporting.