The Voting Rights Act’s Injustices


Publish Date:
March 28, 2017
  • Greenbaum, Daniella J.
Commentary Magazine
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Discerning observers can reasonably conclude that nuance is an elusive, if not impossible, feature in American political life. The disintegration of our discourse has made methodical, dispassionate analysis of the important issues with which our national conscience grapples nearly inconceivable, and nowhere does this dispiriting phenomenon find a more glaring example than in our debates surrounding race.

People who advocate for an end to affirmative action will have the albatross of segregation hung around their neck. Expressing the belief that the Voting Rights Act is in need of major overhaul has become equivalent to declaring that blacks shouldn’t have the right to vote. Yet the VRA is indeed in need of a major overhaul; the Act is outdated and marred by incoherence, features that ironically facilitate opportunistic gerrymandering, hurting the very people it originally sought to protect. Something is very wrong with this very noble law.

Separating voters by race is a clear violation of the prohibition to racially gerrymander. And yet, in demanding that the ability of minorities to elect their candidate of choice not be diminished at all from one districting plan to the next, the updated VRA demands that race is somewhat considered in the drawing of district lines. Covered jurisdictions that present a districting plan that ignores race but ends up diluting minority voting power would likely not gain preclearance, as the new plan would violate the VRA. On the other hand, if race were deemed the predominant factor in redistricting, the plan would constitute a violation of the Constitution’s Equal Protection Clause. Nathaniel Persily, the James B. McClatchy Professor of Law at Stanford, dubbed this predicament “the Goldilocks principle of redistricting.”

The sad reality is that the do-not-diminish provision perversely makes partisan gerrymandering easier. Persily explained:

The new retrogression standard can be seen as entrenching either Republican or Democratic gerrymanders depending on which types of districts it protects and which types of interdistrict population tradeoffs it prevents. The Republicans maintain that the law prevents minority population reductions in majority-minority districts and only in those districts. The Democrats would allow the unpacking of some such districts but would also protect certain minority-minority districts that elect minority-preferred candidates.

…Persily explained that “the novel constitutional question posed by this law was how Congress could provide a record of constitutional violations necessitating the continuation of a law that, if it works as intended, prevents such evidence from emerging.” …

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