End of the Second Reconstruction? Voting Rights and the Court
Karlan, Pamela S., The Nation
We lived many lives in those swirling campaigns ...yet when we achieved, and the new world dawned, the old men came out again and took our victory to remake in the likeness of the former world they knew... We stammered that we had worked for a new heaven and a new earth, and they thanked us kindly and made their peace. --Lawrence of Arabia
Brown v. Board of education is justly recognized as one of the Supreme Court's finest moments. In Brown the Court expressed a sweeping vision of racial equality. But when we celebrate Brown, we need to remember that the Supreme Court is not always the special champion of black Americans. Indeed, if history is any guide, the Court is as likely to choke off an American Reconstruction as to precipitate one. In the 1870s and 1880s the Court gutted the First Reconstruction by invalidating or misconstruing a series of critical Congressional protections of black political and economic rights. Last year in Shaw v. Reno the High Court cast an ominous shadow over the centerpiece of the Second Reconstruction: the Voting Rights Act, which after nearly thirty years had finally begun to integrate the political process. And next, in any one of a plethora of post-Shaw voting rights cases currently percolating up through the system, the Court may take the opportunity to gut the act altogether.
The Voting Rights Act is unquestionably the most successful civil rights statute in American history. On the eve of the act's passage a decade after Brown, blacks were still completely excluded from the rolls in large parts of the South, and economic and physical harassment kept even those blacks who had managed to register from actually casting ballots. Within five years, nearly as many blacks had been added to the rolls as had managed to register in the preceding century. The bill's first great victory was thus its enfranchisement of black Americans.
The Voting Rights Act's second triumph was to delineate a view of the right to vote that included an equal opportunity actually to elect candidates of the voter's choice. If the votes of a politically cohesive black community are overwhelmed, election after election, by the ballots of antagonistic white voters, the right to vote loses much of its meaning. One of the central principles of the act is that equality here and now matters: discriminatory motivations are simply beside the point. The act has been used to dismantle the two major devices that historically have prevented black communities from electing representatives: at-large elections and multimember legislative districts. Before the Voting Rights Act, there were virtually no black elected officials in the South and fairly few in the North. Now there are thousands, most of whom have been elected from majority nonwhite constituencies. And these elected officials have played a critical role in fighting for a variety of progressive policies, ranging from free kindergartens in Mississippi to increased pressure on South Africa to end apartheid.
The act's third great achievement was its creation of a national political consensus in favor of equal political opportunity. A broad spectrum of Democratic and Republican legislators--from Charles Grassley and Bob Dole to Don Edwards and Ted Kennedy--have fought to amend and extend the bill's protections. And with the exception of eight years of deep hostility under Reagan, both Democratic and Republican administrations have used the power of "pre-clearance" granted the federal government under the act-requiring states with a history of low minority participation to get approval from the Justice Department before they change their election laws--to guarantee black voters the same chance white voters have to elect representatives of their choice.
Of course, this support reflects the calculated self-interest of the two major political parties as much as it does moral commitment. But the fact that majority politicians horsetrade with the black community is a sign that because of the Voting Rights Act, politics, broadly defined, is working. …