Last week, the U.S. Supreme Court heard oral arguments in the latest challenge to what many consider the most important civil rights law of the past century — the 1965 Voting Rights Act. The challenge involves Section 5 of the law, which requires nine states — all but two in the South — to obtain prior approval from the Justice Department before implementing any changes in voting laws, regulations or procedures.
The Voting Rights Act, including Section 5, was last renewed in 2006. At that time, overwhelming majorities of Democrats and Republicans in both the House and Senate voted to renew the law for 25 years based on extensive evidence of continued attempts to suppress or dilute the votes of racial and ethnic minorities in the states covered by Section 5.
Despite this legislative record, the justice’s questions and comments during last week’s oral arguments suggest that there is a good chance that the court will vote to strike down Section 5. The five conservative justices on the court, including Chief Justice John Roberts, were clearly skeptical about the continued need for federal supervision of the states covered by Section Five. At one point, Roberts asked whether “the citizens in the South are more racist than citizens in the North.”
Roberts’ question goes directly to what appears to be the central issue in the case — the continued significance of racial prejudice among white voters and political leaders in the states covered by Section 5. The officials bringing the suit to overturn Section 5 and their conservative allies claim that racial prejudice has diminished to the point where federal supervision of state and local governments in the covered states is no longer justified. In support of this argument, they cite the victories of numerous African-American candidates for state and local office and increased turnout rates among African-American voters.
There is no doubt that old-fashioned racism has greatly diminished over the past 40 years throughout the nation and in the states covered by Section 5. However, there are good reasons to be concerned about how a decision to overturn Section 5 would affect the voting rights of African Americans and other minorities in these states — for reasons that are more political than racial. That’s because regardless of whether white political leaders in these states hold racist views, they have substantial political incentives for engaging in actions to suppress or dilute the minority vote.
Racial Polarization and the Voting Rights Act
In addition to a history of racial discrimination, the states covered by Section 5 are characterized by an exceptionally high degree of racial polarization in voting up to the present day. Whites and nonwhites in these states are deeply divided in their political preferences, resulting in a two-party system in which one party depends overwhelmingly on votes from whites and the other party depends overwhelmingly on votes from African Americans and other nonwhites. This racial polarization continues to provide a powerful incentive for leaders of the party that depends overwhelmingly on white votes to suppress or dilute the votes of African Americans and other minorities.
Racial polarization in voting can be measured by the difference in the racial composition of the electoral coalitions that support the two major parties. Table 1 presents evidence from the 2008 national exit poll concerning the degree of racial polarization in voting in the states covered by Section 5 compared with the rest of the country. I used the presidential vote to measure polarization, but the results for the U.S. House vote were almost identical, and I used data from the 2008 election because it is the most recent presidential election for which the exit poll data are available for analysis. However, it is almost certain that the results for 2012 would show at least as much racial polarization in voting as in 2008.
Table 1: Racial polarization in the 2008 presidential election: A comparison of states covered by Section 5 with the rest of the nation
Source: 2008 national exit poll
Note: Section 5 states are Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia
The data in Table 1 show that there was a large difference in the racial composition of the Democratic and Republican electoral coalitions in both the states covered by Section 5 and the rest of the country. However, the difference in the covered states was much greater due to both the larger nonwhite share of the overall electorate and the greater tendency of whites to vote for Republican candidates in these states: only 24% of whites in the covered states voted for Barack Obama compared with 48% of whites in the rest of the country.
African Americans and other nonwhites made up about 10% of the Republican electoral coalition in both sets of states, with African Americans making up only 1% of Republican voters in both sets of states. But African Americans and other nonwhites made up 62% of the Democratic electoral coalition in the covered states versus only 35% in the rest of the country. African Americans by themselves made up 42% of Democratic voters in the states covered by Section 5, but only 19% of Democratic voters in the rest of the country. It is clear that Democratic candidates in the covered states are much more dependent on the votes of African Americans and other nonwhites than Democratic candidates in the rest of the country.
In addition to this difference in racial polarization, another key difference between these two sets of states is that the covered states are now dominated by the Republican Party. All nine covered states currently have Republican governors and Republican majorities in both chambers of their legislatures. This means that political leaders in these states have a powerful incentive to suppress or dilute the votes of African Americans and other minorities because these groups make up the large majority of the Democratic electoral base in their states. Moreover, as the majority party, they also have the ability to enact laws and regulations to accomplish these goals.
Recent history shows that Republican leaders in the states covered by Section 5 have frequently attempted to suppress or dilute the minority vote through actions such as enacting voter identification laws, changing voting dates, changing poll locations, replacing partisan elections with nonpartisan elections, switching from district-based to at-large elections and changing district boundaries. While such actions have occurred in other states, the evidence collected by Congress in 2006 showed that they occurred much more frequently in the states covered by Section 5. In numerous instances, only the power of the federal government to block such discriminatory laws and regulations has prevented their implementation.
Implications for the Future
The nonwhite share of the electorate in the states covered by Section 5 is expected to increase over the next few decades. Given the racially polarized pattern of voting in these states, this trend is likely to pose a growing threat to the dominance of the Republican Party in many of them. As a result, the political incentives for Republican leaders to pursue changes in election laws, rules and regulations in order to suppress or dilute minority voting strength will almost certainly increase in the future, making continued federal review of proposed changes crucial in order to ensure fair elections. Far from being outdated, Section 5 of the Voting Rights Act may be needed more than ever in the coming decades.