(Washington, DC) Today, Shelby County, Alabama filed a lawsuit in the United States District Court for the District of Columbia which will resolve the important question left unanswered by the Supreme Court last year in Northwest Austin Municipal Utility District No. One v. Holder: whether Section 4(b) and Section 5 of the reauthorized (2006) Voting Rights Act remain constitutional more than 45 years after the statute’s original enactment. The complaint and other filings can be found at: www.projectonfairrepresentation.org.

Section 4(b) of the Voting Rights Act subjects certain States and political subdivisions to Section 5 of the Voting Rights Act, which invades the sovereignty of these “covered” jurisdictions by requiring them to “preclear” all voting changes with the United States Department of Justice. Shelby County is a “covered” jurisdiction because, in 1965, the Attorney General determined that Alabama was using a prohibited voting test and less than 50% of the persons of voting age residing in Alabama voted in the presidential election of November 1964. As a result, Shelby County is regularly required to engage in the costly and burdensome process of submitting all voting changes, no matter how minor, to the Department of Justice prior to implementation.

In last year’s Northwest Austin decision, the Supreme Court questioned the constitutionality of Section 4(b) and Section 5 but did not decide the issue because, unlike Shelby County, that political subdivision was eligible to terminate coverage and preclearance under the Voting Right Act’s “bailout” mechanism. The Supreme Court nevertheless acknowledged that the preclearance obligation of Section 5 may no longer be justified: “Things have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” The Supreme Court also questioned the constitutionality of Section 4(b) because the “evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance” and the “statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions.”

Shelby County seeks resolution of these important constitutional questions. In its lawsuit, Shelby County asserts that Sections 4(b) and 5 exceed Congress’ enforcement authority under the Fourteenth and Fifteenth Amendments and thus violate the Tenth Amendment and Article IV of the Constitution. The lawsuit claims that Sections 4(b) and 5 were reauthorized by Congress in 2006 for another 25 years without sufficient evidence of current intentional racial discrimination in voting by ”covered” jurisdictions. Furthermore, by continuing to base coverage on voting practices and data from 1964, the reauthorized statute does not take into account either the substantial improvements that have occurred in these jurisdictions in the last 45 years or that any lingering voting discrimination is the same or worse in non-covered jurisdictions.

The Project on Fair Representation, a Virginia-based not-for-profit legal foundation, is providing all of the resources for the lawsuit. Edward Blum, Director of the Project on Fair Representation, said, “The 1965 Voting Rights Act ushered in long-overdue changes in electoral opportunities for minorities throughout the Deep South. Today, however, minorities in Alabama register to vote and participate in elections at rates equal to or exceeding those of white voters. It is unfair and unconstitutional for Congress to continue to punish Shelby County in 2010 for conditions that existed in 1965.”

Frank C. Ellis, Jr., Shelby County Attorney, added that “Shelby County supports the vigorous enforcement of the Fifteenth Amendment and the many provisions of the Voting Rights Act that appropriately enforce its substantive command. However, it is no longer constitutionally justifiable for Congress to arbitrarily impose on Shelby County and other covered jurisdictions disfavored treatment by forcing them to justify all voting changes to federal officials in Washington, D.C. for another twenty-five years when the legislative record before Congress clearly demonstrated that the campaign of unrelenting defiance of the Fifteenth Amendment that justified enactment of the Voting Rights Act of 1965 no longer exists.”

Benavidez’s claims were based upon Section 2 of the Voting Rights Act, which, like the Constitution’s Fifteenth Amendment, prohibits election practices or procedures that discriminate on the basis of race and ethnicity. For the last two decades, most of the cases arising under Section 2 have been challenges to at-large voting districts like Irving’s. All told, the Department of Justice, as well as a handful of racial advocacy groups, has successfully brought dozens of these challenges to court in the last few years, especially as Hispanic immigration has surged in Florida, Texas, California, New York, and other states.

As some legal scholars have noted, voting is a zero-sum game; if the weight of one vote increases, the weight of another vote necessarily decreases.

In Benavidez, the plaintiff’s claims relied on Thornburg v. Gingles, a 1986 U.S. Supreme Court case that established a three-part test to determine if at-large systems like the one Irving used violate Section 2. According to Gingles, single-member districts must be created when, first, the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district; second, the minority group votes as a cohesive bloc; and third, the white majority votes as a bloc to defeat the minority group’s preferred candidate.

One of Irving’s principal legal defenses was to claim that, while there were enough Hispanics to create a Hispanic-majority city council district, about 60 percent of those Hispanics were not citizens. This fact, the city asserted, meant the first Gingles test was not fulfilled and therefore, the current at-large system was legal.

This argument fell on deaf ears. After a four-day bench trial, the judge in Benavidez found all three Gingles factors present, so he enjoined the city from holding elections until a new system was put in place. With elections looming, Irving—now facing a $600,000 legal bill—moved to settle with the plaintiffs rather than appeal. City council elections using the new districts will take place this May.

Like Irving’s new city council districts, there are hundreds of voting districts throughout the country today that have an unfair balance between citizen and non-citizen populations.

In retrospect, the city’s decision to settle turned out to be a hasty mistake. Shortly after the agreement had been struck, in a nearly identical Section 2 case from Farmers Branch, Texas, the Fifth Circuit Court of Appeals held that courts must consider only the citizen voting-age population for the first Gingles test.

Today, through no fault of its own, the City of Irving is stuck with a new system of governance that is clearly flawed. Yet the story isn’t over. In fact, its intrigue has just begun. Here’s why.

A few days ago, 11 Irving residents filed a new lawsuit, Lepak v. City of Irving, challenging the constitutionality of the new single-member council plan. Interestingly, the lawsuit does not maintain that the city needs to undo the Benavidez settlement and reinstitute the old at-large system. Rather, the plaintiffs argue that the newly created District No. 1, the court-mandated “Hispanic” district, is unconstitutional because it does not comply with the Fourteenth Amendment’s long-held requirement of “one person, one vote.” District No. 1, the plaintiffs argue, has approximately 13,029 citizens of voting-age population, while in Districts Nos. 5 and 6, there are approximately 22,932 and 23,884 citizens of voting-age population, respectively. This disparity has created a citizen voting-age population deviation as great as 83 percent between some of the districts. Because of this, the votes of citizens living in District No. 1 are worth nearly twice as much as the votes of citizens residing in Districts Nos. 5 and 6.

The votes of citizens living in District No. 1 are worth nearly twice as much as the votes of citizens residing in Districts Nos. 5 and 6.

These facts lead to an important legal question: Is it constitutional to undersize the citizen population in the Hispanic district, while oversizing the citizen population in non-Hispanic ones? In other words, should 13,000 citizens get a city council member, while in a neighboring district it takes almost 24,000 citizens to get one?

Nearly two decades ago, a three-judge panel of the Ninth Circuit Court decided Garza v. County of Los Angeles, a case much like Benavidez in facts and outcome. In Garza, however, a skillful dissent by Judge Alex Kozinski laid out the competing principles between apportionment by population on the one hand, and by citizen population on the other. Apportionment by raw population, Kozinski asserted, embodies the principle of “representational equality”; it assures that all persons living within a district—whether eligible to vote or not—have roughly equal representation in the governing body.

Apportionment by eligible voters, conversely, serves the principle of “electoral equality.” This principle recognizes that electors—persons eligible to vote—are the ones who hold the ultimate political power in our democracy. Kozinski’s dissent continues:

The principle of electoral equality assures that, regardless of the size of the whole body of constituents, political power, as defined by the number of those eligible to vote, is equalized as between districts holding the same number of representatives. It also assures that those eligible to vote do not suffer dilution of that important right by having their vote given less weight than that of electors in another location. Under this paradigm, the fourteenth amendment protects a right belonging to the individual elector and the key question is whether the votes of some electors are materially undercounted because of the manner in which districts are apportioned.

Between the competing doctrines, Kozinski comes down on the side of electoral equality which, if applied to Irving’s new city council districts, renders them unconstitutional. If “one person, one vote”—the cornerstone of our nation’s most enduring egalitarian principles—has any meaning, the citizen population gaps between Irving’s new districts must not be this glaringly wide. As some legal scholars have noted, voting is a zero-sum game; if the weight of one vote increases, the weight of another vote necessarily decreases.

Is it constitutional to undersize the citizen population in the Hispanic district, while oversizing the citizen population in non-Hispanic ones?

The Supreme Court has long held that, other than for a state’s congressional districts, population deviations between voting districts may be slightly imbalanced, but not by more than 10 percent. Yet the court has never defined a critical variable in this equation, namely, the relevant “population” that should be used in crafting voting districts, whether in the course of regular, periodic redistricting or in the case of Section 2 lawsuits like the one in Irving.

A decade ago, the Supreme Court declined to take up a case from Houston that would have addressed this issue. Justice Clarence Thomas, however, thought otherwise, writing separately that the Court has never determined the relevant population that jurisdictions must equally distribute among their districts. He would have taken the case for argument, noting that there is a split in the appellate circuits over who gets counted, and “as long as we sustain the one-person, one-vote principle, we have an obligation to explain to States and localities what it actually means.”

Like Irving’s new city council districts, there are hundreds of voting districts throughout the country today that have an unfair balance between citizen and non-citizen populations. It would be ironic—and fitting—if Manny Benavidez’s success in imposing single-member city council districts in Irving turned out to catalyze fixing this problem nationally.

FURTHER READING: Blum earlier answered “The Court Kicks the Can—What’s Next?” for the Voting Rights Act, and discussed “Voting Rights and the Beneficiaries of Selma.” AEI’s Michael Barone explains “How the Recession Has Changed American Migration”—and, thus, election districts. In “Count on the Constitution,” Barone argues that the Census Bureau should become an independent agency to avoid its current politicization. Abigail Thernstrom’s new book, Voting Rights—and Wrongs, discusses the elusive quest for racially fair elections.

(Dallas, Texas) A federal lawsuit was filed today in Dallas, Texas challenging the constitutionality of the newly drawn, single-member city council districts of Irving, Texas. The complaint and future filings can be found at http://www.projectonfairrepresentation.org/current-litigation/.

The lawsuit asserts that the new Irving single-member districting plan is unconstitutional under the Fourteenth Amendment’s Equal Protection Clause because the districts do not comply with the “one-person, one-vote” requirement.

In 2009, Irving’s at-large council member voting system was struck down by a Dallas federal court as a violation of Section 2 of the Voting Rights Act. The City elected to settle the case rather than appeal. The single-member districts being challenged today are the ones that were created by the negotiated settlement.

Per the federal court’s ruling, one of the new districts was specifically designed to be a Hispanic-majority district. In creating this Hispanic majority district, however, the City (at the instruction of the court) did not distinguish between citizens and non-citizens.

The plaintiffs are all residents of Irving who contend that some of the new districts are significantly under-populated with voting age citizens, while others are significantly over-populated. For instance, in the new Hispanic-majority district (District 1), there are approximately 13,029 citizens of voting age population, while in Districts 5 and 6 there are approximately 22,932 and 23,884 citizens of voting age population, respectively.

This disparity has created a citizen voting age population deviation as large as 83% between some of the districts. Because of this, the votes of citizens living in District 1 are worth nearly twice as much as the votes of citizens residing in Districts 5 and 6.

Edward Blum, the Director of the Project on Fair Representation (POFR), which is providing counsel to the plaintiffs, said, “It is not fair for Irving’s city council districts to be so badly malapportioned between voting age citizens and non-citizens. The new districts are a clear violation of the Constitution’s protections of one-person, one-vote.”

Attorneys for the plaintiffs are Kent Krabill and Jeremy Fielding.

Plaintiffs will not be available to the press. Media inquiries should be directed to Messrs. Blum, Fielding or Krabill.

—–End—-

Some background is in order. Six years ago, the high court handed down a decision from a University of Michigan case that addressed the use of race as a factor in university admissions. InGrutter v. Bollinger, a challenge to Michigan’s law school admissions practices, the justices ended a debate that had bedeviled college administrators for decades by permitting institutions of higher education to employ racial and ethnic preferences in order to create a “diverse” student body.

The Grutter opinion was significant in that it held that the creation of a racially diverse student body was so beneficial to the educational experience of everyone that there was a “compelling state interest” to lower the admissions bar for some applicants, and raise it for others.

Still, the justices were careful to underscore that the opinion was not a blanket endorsement of the use of race. An institution bears a heavy burden, they wrote, when it injects race into the admissions equation and any consideration of race must be carefully structured–or, in the language of the law, “narrowly tailored.” Yet the justices did not fully spell out the differences between a shotgun and a careful, targeted approach in using racial preferences. This is where the opinion gets fuzzy–and “fuzzy” is being charitable.

In any event, the opinion unequivocally specifies that narrow tailoring requires that, before putting a thumb on the race scales, a school must pursue a “serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity [it] seeks.”

How much, or how little, serious consideration of race-neutral alternatives must be made is undefined, which has allowed college administrators to operate unrestrained when it comes to their school’s race preferences. Even the president of the Association of American Law Schools noted in a recent law review article that most “colleges and universities have not paid as much attention to this part of the Grutter opinion.”

The recent lawsuit from Texas–Fisher v. University of Texas–may finally compel universities to actually implement a variety of race-neutral admission alternatives just as the high court specified.

The facts in Fisher seem tailor-made for such a legal outcome. Here’s why: In 1996, the Fifth Circuit Court of Appeals outlawed the consideration of race and ethnicity in admissions by any Texas college or university. In response to the sudden (but unsurprising) drop-off in minority enrollment at the University of Texas-Austin and Texas A&M, the legislature passed, and then-Governor George W. Bush signed, the “Top 10 Percent” law. This law allowed any student graduating in the top 10 percent of his high school class to attend any public school in the state.

Within a few years, minority enrollment (as well enrollment from rural areas) at the state’s flagship universities surged, surpassing minority enrollment levels achieved with race-based affirmative action. So successful had the plan been in attracting minorities to UT-Austin, that then-university president Larry Faulkner penned a celebratory essay in 2000 extolling the plan’s results. His essay notes: . . . the Top 10 Percent Law has enabled us to diversify enrollment at UT Austin with talented students who succeed. Our 1999 enrollment levels for African American and Hispanic freshmen have returned to those of 1996, the year before the [Fifth Circuit] decision prohibited the consideration of race in admissions policies. And minority students earned higher grade point averages last year than in 1996 and have higher retention rates . . . . So, the law is helping us to create a more representative student body and enroll students who perform well academically.

The Top 10 Percent law has its critics, but one thing is certain: it is a proven race-neutral admissions policy that has produced greater “diversity” at UT-Austin than did race-based affirmative action.

Nevertheless, UT’s satisfaction with the Top 10 Percent law was short-lived. On the same day that the Michigan case came down from the Supreme Court in 2003 (thus, overturning the earlier ban imposed by the Fifth Circuit), President Faulkner issued a press release announcing UT-Austin’s intent to reintroduce race-based affirmative action.

The Fisher plaintiffs, two high-achieving girls who graduated in the top 11th and 12th percentile of their high school classes, argue that but for the reintroduction of race by UT-Austin, they would have been admitted. They assert that the Top 10 Percent plan is exactly the kind of “race neutral” alternative the Supreme Court highlighted in the Michigan case. Since this legislatively-mandated plan has produced greater diversity than did race-based affirmative action, they argue, UT-Austin is breaking the law’s “narrow tailoring” mandate.

Last month, a district court judge in Austin disagreed, so now the case is on appeal. Regardless of the outcome at the next stage, many legal observers believe the case will eventually be heard by the Supreme Court.

The prospects for the plaintiffs at the high court look promising. Justice O’Connor, the author ofGrutter, has been replaced by the more conservative Justice Alito. Justice Kennedy, the swing vote today on many high-profile, hot-button cases, dissented in Grutter and it is not unreasonable to expect him to look at UT-Austin’s reintroduction of race preferences with a good degree of skepticism. As well he should.

There is a lot riding on this case for administrators at highly competitive schools throughout the country. If the University of Texas is required to rely on the successful, race-neutral, Top 10 Percent plan instead of affirmative action to achieve student body diversity, it may obligate other schools to experiment with different kinds of non-racial alternatives–or face litigation themselves.

Like it or not, race-based affirmative action in university admissions was given a green light, albeit a dim one, by the Supreme Court in 2003. Yet, the justices were mindful to tether them to race-neutral alternatives. If UT-Austin’s reintroduction of race preferences is permissible, then the race-neutrality doctrine means nothing. It’s now up to the courts to put some teeth into their opinion.

Some background on the 1965 Voting Rights Act (VRA) will be useful for understanding the court’s opinion and what is likely to happen next. The VRA was, as the Supreme Court recognized in this opinion, a “historic accomplishment” designed to end the official governmental barriers to voting that blacks faced in the Deep South. This objective was accomplished by banning literacy tests, providing federal voting registrars, and criminalizing harassment of black voters in targeted states and jurisdictions where black voter registration was less than 50 percent on November 1, 1964. This formula (and a subsequent new one) led to all of nine states and parts of seven others to be subject to Section 5 of the act, which requires them to seek approval from Washington before any new election procedures—such as redistricting or moving a polling place—can be made. No other statute in the legislative history of the nation has ever required a local jurisdiction to seek permission from the federal government before it can enact a law or procedure.

Section 5 was wisely—but temporarily—put in place to prevent these recalcitrant jurisdictions from using never-ending gamesmanship to circumvent the new law. Congress extended Section 5 in 2006 for the fourth time—it is now scheduled to expire in 2031, 61 years later than originally intended.

When the utility district challenged the 2006 reauthorization, it asked the lower court to allow it to seek a “bailout” from these “preclearance” requirements, as a provision of the law allows; and failing to achieve this exemption, it argued the law was unconstitutional. A three-judge panel in the District Court for the District of Columbia ruled against the district on both claims in 2008, finding that because the district did not register voters, it was not entitled to bailout. More significantly, it found that Congress had sufficient evidence of “second generation” racial discrimination in the areas covered by Section 5 to justify another 25 years of preclearance.

Oral arguments at the Supreme Court last April did not go well for the defenders of the act. The Los Angeles Times headline was emblematic of most newspapers when it announced, “Supreme Court justices appear to be ready to strike down Section 5.” Election law scholars and bloggers were staggered that Justice Anthony Kennedy had voiced such deep concern—in reality, he gave a mini-speech—about the differential treatment of the Section 5 states to the rest of the union:

Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio. The sovereignty of Alabama is less than the sovereign dignity of Michigan. And the governments in one are to be trusted less than the governments in the other.

Although a few of the questions to both parties in the lawsuit focused on the bailout provision, most of the justice’s questions were concentrated on the broader issues surrounding constitutionality. Consequently, when the Court on Monday surprisingly issued an opinion that dodged the constitutionality issue altogether, there was a collective sigh of relief from the defendants and the defenders with one noting that the ruling was “more like Christmas given that the Court didn’t strike down the act.”

In a brief, 17-page opinion authored by Chief Justice John Roberts and joined by seven other justices, the Court found that the district and 12,000 others jurisdictions like it were entitled to bail out, even though they do not register voters. And although they left the constitutionality question unanswered, there is much discussion in the opinion that suggests these “second generation” discriminatory barriers are not numerous enough (or exist outside of the Section 5 jurisdictions in the same or greater degree) to justify another 25 years of federal oversight. Writing for the well-respected SCOTUSBlog.com, Lyle Denniston goes further by remarking that, “The main opinion, in fact, provides what could easily be read as a roadmap for such a future constitutional complaint.”

So, Northwest Austin Municipal Utility District Number One v. Holder, “the biggest election law case since Bush v. Gore,” came into the Supreme Court like a lion, and out like a lamb. Why? And what does the future hold for this provision?

There is plenty of speculation from all quarters as to why the Court kicked the can down the road, but the best explanation is that this is exactly what the district asked for in its original complaint. Greg Coleman, counsel for the district, was asked at the argument, “Do you acknowledge that if we find in your favor on the bailout point we need not reach the constitutional point?” His simple answer was, “I do acknowledge that.” All of which plausibly led Chief Justice Roberts to cite a 1980s era voting rights case as his rationale for avoiding the constitutional question: “it is a well-established principle governing the prudent exercise of this Court’s jurisprudence that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.”

It is noteworthy that Justice Clarence Thomas concurred in the judgment in part, but importantly, dissented in part, arguing that the Court’s statutory decision does not provide the district with full relief. In other words, Justice Thomas would have examined the constitutional legitimacy of Section 5 and struck it down.

Unless a new challenge is mounted soon, it appears the next round of redistricting in the states covered by Section 5 will require approval by Washington—a prospect that brings Democrats sublime joy. As reported in the Houston Chronicle, Matt Angle, the Democratic redistricting expert from Texas said that, “the decision ensures that any redistricting plan adopted by the Texas legislature will have to win advance approval from a Justice Department administered by the Obama administration.” One cannot help thinking his sentiment is shared by other Democratic redistricting experts from states like Georgia, South Carolina, and Virginia. All of which means that legally sanctioned, Section 5-driven racial gerrymandering will be a part of the political landscape for years to come.

In light of the constitutional skepticism of Section 5 held by at least five members of the Court, some legal scholars have urged Congress to get busy and do now what they should have done back in 2006—modernize the act to solve the problems of 2009, not those of 1965. Good idea, but Congress will not get near this statute until the Court declares it unconstitutional.

It took only eight days after President George W. Bush signed the 2006 reauthorization of Section 5 before a jurisdiction challenged the law. Going forward, it will probably be more than a week before a new jurisdiction takes the second chop on the Section 5 log, but not much more.

If the Court eventually strikes down Section 5, it would only be fitting for Justice Thomas to author the opinion.

(Washington, DC) The Project on Fair Representation (POFR), a not-for-profit legal defense foundation that helped provide representation and resources to the plaintiff, applauds the outcome in Northwest Austin Municipal Utility District Number One v. Holder (08-322).

POFR Director Edward Blum said, “With this opinion, the Supreme Court recognizes that thousands of jurisdictions have the right to bailout of the penalty provisions of Section 5 of the Voting Rights Act. This is a fair and long-overdue outcome.”

In his capacity as a visiting fellow at the American Enterprise Institute, Blum submitted a comprehensive study to Congress during the reauthorization of the Voting Rights Act in 2006 which demonstrated that electoral conditions for minorities were the same as for white voters in the states covered by Section 5. Additionally, Blum testified to Congress that Section 5 had evolved into a partisan gerrymandering tool to protect incumbents of both parties.

Blum added, “The Court has decided for now to rule on statutory grounds, but the language of the opinion leads me to believe they will strike down this provision of the Voting Rights Act on constitutional grounds in a future case.

“Sooner rather than later, the Justices will have this issue before them once again.” Blum said.

——END——

These three, far-flung jurisdictions–and thousands of others–are subject to Section 5 for one reason: When Congress reauthorized the law in 2006, it feared having a serious debate on the need to modernize our civil rights statutes and instead abdicated all political responsibility to the courts.

Shortly after President Bush signed the reauthorization, the Northwest Austin Municipal Utility District sued, arguing that unless it could “bail out” of Section 5, the provision was unconstitutional. If the Supreme Court strikes down Section 5, as it should, it will eventually force Congress to do what it should have done earlier–reassess the racial policies of a nation that has elected its first African American president.

Some background on the Voting Rights Act will be useful. Passed in 1965 as a “temporary” provision, Section 5 requires all jurisdictions in nine states (mostly in the Deep South and Texas and Arizona) and parts of seven others (from New Hampshire to California) to seek permission from the attorney general or the D.C. district court before making any change in voting procedures. Something as minor as moving a polling place across the street, or as major as a implementing a statewide congressional redistricting plan, must be “pre-cleared” by Washington.

When the Voting Rights Act was originally passed, this provision made sense–after all, the Jim Crow South had perfected a never-ending game of whack-a-mole to keep blacks from the polls. Preclearance ended that. Nevertheless, the law was unprecedented in our history. First, it applied to only a few parts country. Second, no other statute in our history has ever required a state or one of its jurisdictions to ask the federal government for approval before a locally enacted law can go into effect.

In 1965, Congress recognized that Section 5′s pre-clearance provision was an unusual intrusion into areas constitutionally reserved for the states, so it designed it to expire after five years. However, it is still in effect today after three congressional extensions. It will next expire in 2031, sixty-one years later than originally intended.

Wednesday’s case, Northwest Austin Municipal Utility District Number One v. Holder, forces the justices to address some complex questions, the most important of which is whether conditions for minority voters have improved enough in these targeted states and jurisdictions that Section 5 is no longer necessary. Judging from the congressional record, the Court may conclude exactly that.

The data proving remarkable changes in racial conditions in these jurisdictions are irrefutable: Criteria such as minority voter registration rates, election turnout, success of minority candidates, and other factors, indicate there is no meaningful and quantifiable difference in the voting rights exercised by minorities in the jurisdictions covered by Section 5 and non-covered jurisdictions. In fact, the evidence suggests that the covered jurisdictions offer greater opportunity for minorities to participate at the polls than non-covered ones. Congress knew this, but chose to ignore it. That’s why Pinkham’s Grant, New Hampshire, is still covered by Section 5 even though its population is zero.

As some election law scholars have noted, if Congress had reexamined Section 5′s coverage formula (which is based partly on voter turnout in the 1964 contest between Barry Goldwater and Lyndon Johnson), the “coalition behind the law would have collapsed.”

But Congress chose to avoid that political can of worms, which is why Northwest Austin Municipal Utility District Number One is still in the Voting Rights Act penalty box. This tiny enclave is a residential subdivision that was little more than bald ranchland until 1988, twenty-three years after the original enactment of the Voting Rights Act. Because it is in Texas, the district had to petition the federal government for permission to move the neighborhood polling place from a resident’s garage to an elementary school a few blocks away. By subjecting the district to that burden, Congress treats racism as “an inheritance that runs with the land rather than a manifestation of attitudes and actions of living individuals.”

Yet beyond the legal questions of contemporary discrimination and state sovereignty hovers a powerful political question–how voting districts are drawn to comply with Section 5. For the most part, Section 5 covers preclearance of all redistricting; and to the extent a change is retrogressive (dilutive) to the position of minorities, it covers that as well. As NYU professor Richard Pildes has noted, other than minority officeholders whose districts must be immunized from white competition, “the most significant partisan beneficiaries of the Act are Republicans, who gain from the Act’s requirement that safe minority districts be created.” With reliable minority Democratic voters clustered in gerrymandered minority districts, Republican challengers prevail as easily as their black and Hispanic Democratic counterparts. This “political apartheid” diminishes electoral competition.

As the municipal utility district argues to the Court, “The America that has elected Barack Obama as its first African-American president is far different than when the Voting Rights Act was first enacted in 1965.” That Section 5 is stuck in a time warp that will last another two decades–punishing parts of the country for the sins of their grandfathers–ill serves our nation’s remarkable racial evolution. Let’s hope the Court agrees.

Furthermore, the significance of these cases goes beyond their core redistricting and federalism issues. In the wake of President Obama’s historic election, the high court’s acceptance of both cases reflects how the judiciary appears to be following the nation’s growing sentiment that race and ethnicity should play an ever smaller role in our public policies.

The Voting Rights Act of 1965 has eighteen sections and approaches six thousand words in length, yet its goal was a simple one: ending the official barriers to voting by blacks in southern jurisdictions. Sections 4 and 5 were designed to temporarily target specific areas of the country where barriers to black voting were the most pernicious. Section 2 was designed to permanently apply to the entire country and forbids any state or jurisdiction from discriminating on the basis of race, color, or membership in one of the language minority groups.

The Voting Rights Act Section 2 case, Bartlett v. Strickland, was handed down last month. In a fractured 5–4 opinion, the justices ruled that states, counties, cities, and the like are not required during redistricting to create a safe minority-majority voting district when a racial minority group is less than 50 percent of the population. (Going forward, when redistricting takes place in 2012, a legislative body will not be required to draw a minority-majority voting district unless the minority population is 50 percent or greater.) As blacks and Hispanics continue their migration out of inner-city neighborhoods and into multiracial suburbs, it is increasingly difficult to create a traditional, compact district with a 50-percent minority population that is not racially gerrymandered.

The Section 5 case, Northwest Austin Municipal Utility District Number One v. Holder, will be argued on April 29, with a decision expected in late June. Unlike the issues resolved in Bartlett, Northwest Austin entails a challenge to the constitutionality of Section 5.

Some background on this provision is in order. Section 5 requires nine states—most of which are in the Deep South—and parts of seven others to seek permission from Washington before any changes to voting procedures and policies can be made. Redistricting, moving a polling location, or even extending hours for early voting must be “precleared” by the U.S. attorney general or the D.C. courts. Because of the never-ending gamesmanship used by southern election officials and others to disenfranchise blacks in 1965, Congress wisely and effectively targeted these states and jurisdictions for this extraordinary coverage.

This kind of law is unprecedented in our history. First, it applies to only part of the country. Second, no other statute has ever required a state or one of its jurisdictions to ask the federal government for approval before a locally enacted law can go into effect. Nonetheless, this preclearance regime was intended to be a temporary provision and was scheduled to expire in 1970, but it has been reauthorized another three times, most recently in 2006 until 2031. Congress continued to reauthorize the act because it believed that the covered jurisdictions could not be trusted to protect minority voting rights.

As necessary as Section 5 was in 1965, it now has evolved into a partisan racial gerrymandering tool at its worst, and, at its best, a silly, bureaucratic contrivance. The plaintiff in Northwest Austin—a small subdivision of 3,500 people in Travis County, Texas, created in 1985—proves the point. For years, elections for the subdivision board were held in a resident’s garage. But in order to move the election to a more convenient elementary school three blocks away, the board had to get Washington’s approval.

It is no surprise that passions on both sides of this issue run red hot. That the high court could strike down one of the temporary—yet now, landmark—provisions of the Voting Rights Act has mobilized a storm of amicus briefs, from Republican governors and conservative legal foundations on the right to Democratic attorneys general and racial advocacy groups on the left.

There are two questions for the high court to resolve. First, can a political subdivision like the one in Texas seek to “bail out”—or, in effect, escape—from the preclearance provision as the law allows?When the act was originally passed, Congress included a provision that a covered jurisdiction could escape from oversight if it could demonstrate to the courts that its behavior toward minority voters had been exemplary. If a bailout is not allowed, then the second question is, has Congress found sufficient evidence of ongoing discrimination and gamesmanship to justify keeping Section 5 in effect exactly as it was structured in 1965?

Court watchers speculate a number of ways the justices may decide this case. On the one hand, the Austin municipal utility district could lose on both questions. For instance, because it is a subjurisdiction that does not register voters (as does a county or parish) it could be found ineligible to bail out. Then, possibly the justices will rule that Congress found sufficient evidence of ongoing racial problems—such as racially polarized voting—to reauthorize Section 5 exactly as it did the last time, in 1982.

On the other hand, the Court could avoid the question of constitutionality altogether and allow the district (and other subjurisdictions like it) to seek a bailout. That decision, however, will only forestall one the justices will make sooner or later when a county or a state is denied a bailout because it is unable to meet two insurmountable legal hurdles that the Voting Rights Act mandates: the requirement to undertake a review of each election law change made since 1965 by every subjurisdiction within its borders; and the requirement that every subjurisdiction within a state or county be free of any preclearance objections lodged against it for 10 years. So, for example, if a small school district has received an objection from the U.S. attorney general about moving a polling place, the state or county in which it is located is therefore legally forbidden to get out of Section 5 coverage for a 10-year period. Since most states and counties do not have any state constitutional or statutory control over their subjurisdictions’ election changes, this makes bailout effectively impossible.

Finally, the justices could strike down the provision on constitutional grounds, finding that the Jim Crow apparatus that once prevented blacks from registering to vote and participating in elections in the Deep South has, for all intents and purposes, ended and that Section 5 now exceeds Congress’s legislative authority.

Even if the Court finds Section 5 is unconstitutional, it will not foreclose Congress from modifying the existing act. With increasing frequency, Congress has done exactly that when, for instance, it “overturned” a handful of Supreme Court rulings—most recently in the employment arena with the Lilly Ledbetter Fair Pay Act of 2009, which extended the time an employee could sue an employer for discrimination.

But revamping the Voting Rights Act will not be easy. As Columbia Law School professor Nate Persily remarked about Congress’s refusal to even slightly modify the act in 2006, “if the can of worms that is the basic structure of section 5 had been opened, the political coalition behind the law would have collapsed.” In other words, Congress did not want to make any hard decisions about which states, if any, needed federal oversight. Nevertheless, modernizing the act (as should have been done in 2006) does not have to result in a partisan battle filled with demagoguery and denunciations.

Here is one way: Congress could add a new provision to the Voting Rights Act that allows the federal courts to target a specific jurisdiction for preclearance if that jurisdiction has been sued over a racially discriminatory voting policy or procedure. A “bail in” provision like this is already a part of the act. Known as the “pocket trigger,” it allows a court that has found a constitutional violation of voting rights to require the attorney general to preclear the offender’s voting procedures for an appropriate period of time. Some of the defenders of Section 5 have argued that the pocket trigger mechanism is ineffective because it becomes operative only after a jurisdiction has been found in violation of the law—a long and costly proposition, especially if the plaintiff is an individual or a not-for-profit group. So, instead of allowing a court to bail in a jurisdiction at the end of litigation, Congress should allow for the bail in provision to be an option at the beginning of litigation.

This would allow a court to temporarily place a jurisdiction into Section 5 if it believes, based on a preponderance of evidence, that the jurisdiction is highly likely to be found in violation of a provision of the Voting Rights Act. If the jurisdiction is exonerated in court, then the Section 5 coverage is lifted; however, if it is ultimately found to be in violation, then the temporary coverage can remain in effect for some reasonable period of time, say five years. Of course, a re-engineered Voting Rights Act may not satisfy the concerns of the racial advocacy groups fearful of losing federal protections or the federalism purists fearful of judicial abuse, but it offers a way for Congress to avoid a polarizing battle over which states and counties in 2009 can be expected to act in good faith over civil rights issues, and which ones cannot.

Based on his earlier decisions regarding race-based school admissions policies and racial gerrymandering, it is not unreasonable to predict that Justice Kennedy (along with the other four conservative justices) will determine that Section 5 was not properly constructed to address the problems of racial discrimination in voting today and that it ill serves our nation to keep in place an unconstitutional statute just for political expediency.

Congress can fix this statute if the Supreme Court strikes down Section 5. But bad laws are easier to produce than good laws. Section 5 has evolved from a good law to a bad one because Congress was unwilling to undertake what New York University School of Law professor Richard Pildes said is a “serious—hence difficult—discussion over civil rights policy.”

It is true to most Americans what Eric Holder, our nation’s first African-American attorney general, noted in a speech delivered in Selma, Alabama, at the Bridge Crossing Jubilee last month: “The world that existed on Bloody Sunday is all but unrecognizable to us now. We are all the beneficiaries of Selma.” That Holder was introduced by Peggy Wallace Kennedy, the daughter of the late Alabama Gov. George C. Wallace, makes it especially evident.

The confusion over Section 5 will end soon, as well.

In April, the Supreme Court will hear arguments in Northwest Austin Municipal Utility District Number One v. Holder, a case that Linda Greenhouse writing in the New York Times believes will “set the direction of the debate over race and politics for years to come.” That opinion is shared by election law Prof. Rick Hasen of Loyola University Law School, who notes,  “This could be the biggest election-law case on the court’s docket since Bush v. Gore.”

The lawsuit will test the constitutionality of Section 5 of the recently reauthorized Voting Rights Act (2006). Section 5 forbids all of nine states and their political subdivisions in Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia and parts of seven others such as North Carolina, New York and Florida from enacting any change to voting practices without the consent of either the U.S. attorney general or the District Court for the District of Columbia. Any changes, such as moving a polling location, extending or shortening early voting hours, switching from electing judges to appointing them, and the like, must be “preapproved” (or, in the language of the statute, “precleared”) by Washington.

This preclearance provision also applies to redistricting election districts, which, politically, is the 800-pound gorilla in the courtroom. How election district lines are drawn for school boards, county commissions, city councils, state legislatures and the U.S. Congress will be affected by the outcome of this case, which is why groups such as the Mexican American Legal Defense and Education Fund, ACLU, and People for the American Way, among others, have intervened. They know that if Section 5 is struck down, racial gerrymandering, and thus, ultra-safe majority-minority districts, may be reduced even more in some parts of the nation.

When the Voting Rights Act was being debated in 1965, Congress relied on a substantial body of data to prove that blacks in the Deep South were systematically disenfranchised by a hostile government apparatus. In response, the Voting Rights Act was tailored to address those specific findings by removing the key barriers to black voter participation–like literacy tests, poll taxes and official harassment. Section 5 was necessarily–but temporarily–put in place to prevent these targeted jurisdictions from using never-ending gamesmanship to circumvent the new law. This “temporary” preapproval provision–it was set to expire in 1970 but is now in its 44th year–is the most federally intrusive law ever passed by Congress. It cuts to ribbons our nation’s bedrock principles of federalism. And those federalism principles are not some quaint 18th-century anachronisms–more than any other feature of our system of government they have ensured our liberty by diffusing power between the state and federal government.

The plaintiff in Northwest Austin v. Holder is a small subdivision in Travis County, Texas, which claims, not inaccurately, that “The America that elected Barack Obama as its first African-American president is far different than when Section 5 was first enacted in 1965.” The jurisdiction sued in 2006, requesting to be “bailed-out” from these requirements, which it believes it is entitled to do under the law; and failing to achieve that, argues that the provision is unconstitutional.

That it’s no longer 1965 in America is beyond debate except for the most racially myopic advocacy groups. Congress, knowing it could no longer identify either oppressor or oppressed in any of the Section 5 states, relied mostly on feverish anecdotes to justify the act’s renewal until 2031. As a warning shot to the Supreme Court to keep their hands off, Congress titled the newly reauthorized bill the “Fannie Lou Hammer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006.” Who, after all, would dare strike down these civil rights heroines?

So why did Republicans in Congress and President Bush–whose home state of Texas was labeled as one of the more egregious voting rights violators during the reauthorization hearings–enthusiastically sign it into law? A 2006 article in New York magazine notes that Democrats, including then-Congressman Rahm Emanuel, as well as Republicans, are subject to a “weird, self-interested math [that] comes into play” with the Voting Rights Act, according to a Democratic congressman.

Black Democrats don’t want to appear retrograde; whites don’t have the courage to stand up and try to fix it without blacks standing alongside them; and Republicans like the outcome that they’re getting, which enables them to have perpetually lily-white suburban southern districts…. So any effort to “fix” the thing is a nonstarter.

In order to comply with Section 5, redistricting bodies are compelled to create bug-splat-like minority-majority voting districts that split apart multiracial, geographic communities of interest. This racial gerrymandering has the effect of diminishing competitive elections and, inevitably, makes a political candidate’s race the primary determinant of electoral success. Moreover, by insulating white officeholders from minority voters and issues specific to minority communities and, conversely, minority elected officials from white voters, the nation defers the day when racial considerations are no longer a driver of electoral politics–whether for city councils all the way to the halls of Congress.

What began as a statute to ensure the voting rights of minorities in 1965 has devolved into a crude gerrymandering tool to further the interests of political parties and incumbent politicians. Today, Section 5 is no longer about addressing issues of white versus black, but rather, red versus blue.

Sensing likely trouble from the high court, the defenders of Section 5 have begun to debase the extraordinary racial progress made in the South and elsewhere, claiming that because then-candidate Obama’s support from white voters was lower than John Kerry’s in 2004, nothing has really changed “down there.” While it is true that white voters in Alabama, Mississippi, and Louisiana gave Obama fewer votes than Kerry, that was not the case in North Carolina, South Carolina, Virginia, Georgia, Arizona, and Texas. More relevant to the discussion of a changed electorate, however, is the success of black candidates such as Sen. Eric Powell, who was recently elected to the Mississippi State Senate from a district that is over 92 percent white; and Alabama State Representative James Fields who represents a 96 percent white district. Of course, the fact that blacks and Hispanics throughout the South have been elected to statewide office with a majority of white support makes no difference to the racial advocacy groups. For them, the sky is always falling.

Striking down Section 5 of the Voting Rights Act is not a course of action the Supreme Court will follow lightly. After all, any judicial narrowing of the breadth of the provision will be portrayed by many as a rollback in minority voting rights. But in truth it will be the opposite: if racial gerrymandering is curtailed, it will mean that black and Hispanic representatives will have to reach out to white voters in order to win office, just as white representatives now must reach out to minorities. The great lesson of the 2008 election is that voters will reach for the right candidates–regardless of their race.

The November decision in the case of Rothe Development Corp. vs. Department of Defense struck down a race-based affirmative action contracting program mandated by Congress more than two decades ago. Within weeks of settling into the Oval Office, President Obama and his administration must decide whether to appeal. They should let the court opinion stand.

Meanwhile, the administration should work with Congress to create new legislation that allows all small-business owners, regardless of their ethnic heritage or race, to compete for contracts at the Department of Defense. After all, because candidate Obama recognized during the campaign that it would be inappropriate for his two daughters to receive preference based on race when they apply to college, surely President Obama would agree that they–and other well-advantaged racial and ethnic minorities–should not get one when they compete for a government contract.

This is not a complex problem to resolve. At issue specifically in Rothe is the constitutionality of awarding 5 percent of all Defense Department contracts to small businesses owned by “socially and economically” disadvantaged individuals. One of the problems the appeals court found with this program is that it presumes that all Latinos, African Americans, Asian Americans and Native Americans are socially and economically disadvantaged, regardless of education, business success or personal net worth.

Suzanne Patenaude, the owner of San Antonio-based Rothe Development Corp., learned this the hard way. In 1998, her company submitted the lowest bid for an Air Force telecommunications contract. However, because Patenaude is white, her company’s low bid of $5.57 million was “adjusted” upward by 10 percent to $6.1 million. As a result, a company owned by an Asian American became the “lowest” bidder at $5.75 million. Not only was this unfair to Patenaude, it also was shamefully wasteful to taxpayers.

This program, which was reauthorized by Congress in 2006, is like most government-based affirmative action policies. It is predicated on the assumption that general societal discrimination–past and present–against racial or ethnic minorities justifies lowering the bar for every one of them when they compete for college admissions, jobs or contracts. The courts, however, have generally noted that before establishing a race-based contracting preference, a governmental body must first identify with some specificity the discrimination to be remedied and have ” ‘a strong basis in evidence’ upon which to conclude that remedial action is necessary.”

The federal appeals court’s three-judge panel found in the Rothe case that Congress failed to meet this requirement in reauthorizing this program. The ruling noted that the empirical and anecdotal evidence Congress examined to justify reauthorization of the program was filled with so many methodological defects that it was unclear if the Defense Department had been discriminating against minorities in the awarding of contracts in the past or the present. Thus, the program was struck down as a violation of “the equal protection component of the Fifth Amendment right to due process.”

Empirical “disparity studies” such as the one the Defense Department relied on here have been in a roaring bull market since the Supreme Court enhanced their use in its 1989 landmark opinion in City of Richmond vs. Croson. In essence, these studies purport to measure the disparity between the number of minority-owned firms available to do certain types of work and the number of contracts awarded to them in the past. If the study shows that very few minority-owned firms are winning contracts, yet there are sufficient numbers of them available to do the work, then racial or ethnic discrimination is deemed the likely culprit.

Disparity studies have been controversial at best. As University of Maryland professor George LaNoue, one of the nation’s foremost authorities on disparity studies, has noted, these frequently multimillion-dollar studies rarely identify the perpetrators of discrimination with any accuracy. Furthermore, the vast majority of these studies mismeasure the true availability and capacity of minority firms to perform the kinds of work required by the Defense Department.

Enough already. Not only is it time to dismantle the disparity-study industry, but we should end the use of race, ethnicity–and gender–in the awarding of federal contracts as well. If Washington wants to offer a helping hand to small, emerging businesses, that’s fine, but limiting these opportunities to minorities and women is wrong.

Congress’ record under both Republican and Democratic leadership for ending contracting preferences is abysmal. But that can change. With the new administration poised to allocate billions of dollars on the nation’s infrastructure, any new spending legislation should disallow the kind of racial, ethnic and gender preferences Congress has mandated in the past. Dozens of jurisdictions from Florida to California have implemented race-neutral, small-business enterprise programs that have lowered barriers and helped all entrepreneurs compete. The race-neutral Local Small Business Enterprise Preference Program in Los Angeles County is a good model.

As Obama wrote in his book, “The Audacity of Hope,” “An emphasis on universal, as opposed to race-specific, programs isn’t just good policy; it’s also good politics.” This case may determine if he really meant it.

In early October, the Supreme Court will be presented with one of the most important voting rights cases of the last two decades. The case, Northwest Austin Municipal Utility District Number One v. Mukasey, will decide the constitutionality of Section 5 of the recently reauthorized Voting Rights Act. If the plaintiff–a small, residential subdivision of 3,500 people north of Austin, Texas–prevails, racial gerrymandering, among other distortions to our body politic, will be greatly diminished. So it comes as no surprise that these groups–all of them defenders of racial gerrymandering–have joined the fray.

Although the lawsuit is complex, the central issue to be resolved by the justices is whether Section 5, a “temporary” provision of the 1965 Voting Rights Act, can still be applied today to a handful of mostly southern states and jurisdictions, which include the Austin district.

Section 5 forbids all of nine states (mostly the old Confederacy, plus Arizona) and parts of seven others from enacting any change to voting practices or procedures without the consent of either of two entities of the federal government–the attorney general or the District Court for the District of Columbia. Any change–from moving a polling location across the street to an entire congressional redistricting–must be preapproved (or, in the lingo of the statute, “precleared”). The only way a jurisdiction can escape this federal oversight is to exercise the statute’s “bailout” provision, which allows a covered jurisdiction whose record of nondiscrimination satisfies the Justice Department to be exempted from the preclearance requirement of Section 5.

This section was set to expire after five years, in 1970, but it was repeatedly reauthorized by Congress, for the third time in 2006. It is now slated to expire in 2032, 62 years later than originally intended.

The preapproval requirement of Section 5 is unique in our nation’s legislative history. Neither before nor since has Congress enacted a law like this one, which compels a state or one of its sub-jurisdictions to seek permission from the federal government before one of its own laws or rules can go in effect. Section 5 imposes a guilty-until-pronounced-innocent standard on nearly 25 percent of our nation’s population. It is the greatest affront ever to our system of constitutional federalism.

Nevertheless, in the Jim Crow South of the 1960s, the preclearance provision of Section 5 was indispensable. Without this draconian measure, the Voting Rights Act’s central mission–ensuring blacks could register and vote–would have gone unmet. After all, for decades, southern officials had successfully engaged in pernicious, never-ending gamesmanship to disenfranchise blacks. In 1965, Congress had volumes of empirical evidence to justify this extraordinary requirement.

But that was then. To our nation’s credit, every official Jim Crow-era voting barrier–most important, the literacy test–is gone. As one election law scholar told Congress during the reauthorization hearings, “Bull Connor is dead.”

Congress should have allowed preclearance to expire in 2006. Unlike in 1965, no evidence exists today that shows systematic, widespread disenfranchisement of black (or Hispanic) voters in the jurisdictions covered by Section 5. Not only is Bull Connor dead and buried, but by every factor social scientists use to measure electoral opportunity for minority voters–registration rates, election participation, and success of minority candidates, to name a few–minorities actually outpace whites in most Section 5 jurisdictions. A study conducted by the American Enterprise Institute shows that there is no quantifiable difference between minority voting rights in covered and uncovered jurisdictions. In other words, requiring Texas, Arizona, and Virginia to have their local laws preapproved by Washington, but not Arkansas, New Mexico, and Tennessee makes no sense in 2008.

Quite apart from the federalism issue, by the late 1980s, three developments were turning Section 5 of the Voting Rights Act on its head, transforming it into something well beyond the bounds of the original intent into a mechanism for creating safe majority-minority voting districts.

First, the spread of powerful software combining geographic information with census and political data made it possible to see the racial and ethnic makeup of any census block in the country, as well as the voting patterns of each block in dozens of previous elections. This made it possible to create voting districts by stringing together extremely small race-specific geographic units, however tangentially connected. In other words, racial gerrymandering skyrocketed.

The second development was the accelerating growth of suburbs. In Section 5-covered jurisdictions like Houston, Birmingham, Atlanta, Charlotte, and Richmond, blacks (and later Hispanics) were moving out of homogeneous ghettos and barrios and into more multiracial suburban neighborhoods. Hence, creating racially homogenous voting districts now required just the sorts of redistricting contortions that the new software made possible.

Finally, the Supreme Court’s jurisprudence concerning the Voting Rights Act and Section 5 evolved away from protecting the rights of individuals and toward promoting the electoral effectiveness–or “fair representation”–of racial and ethnic groups.

In order to comply with Section 5 today, legislative redistricting bodies are methodically harvesting blacks and Hispanics out of multiracial, multiethnic districts in order to create uncompetitive, bizarrely shaped majority-minority districts. This usually fosters the election of far-left, minority Democratic candidates in the gerrymandered districts and far-right, white Republican candidates in the districts denuded of minorities. Because candidates in these safe districts have little need to temper their positions in order to court voters of divergent points of view, the first victim is legislative compromise.

A few months ago, a three-judge panel in the U.S. District Court for the District of Columbia ruled against the little Texas district in its suit to bail out of Section 5. The district argued–and is arguing again on appeal–that if it is denied bailout, then the preclearance requirement of Section 5 is unconstitutional.

Now the Supreme Court must either affirm the lower court’s ruling or take the case up for oral argument. If the case is taken up, as many legal observers expect, the groups that have intervened will assert that striking down Section 5 would turn back the clock on minority voting rights.

They’re wrong, of course. If anything, ending racial gerrymandering and the “political apartheid” it engenders would strengthen, not weaken, the voice minorities have in our electoral system. Even Justices Stevens and Souter in a case decided earlier this year expressed skepticism about Section 5, noting, “It may well be true that today the statute is maintaining strict federal controls that are not as necessary or appropriate as they once were.”

Let’s hope a majority of the justices see it that way.

Here is the ballot language voters will consider in all three states:

“The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

Most observers believe the three initiatives will pass by wide margins, just as they did in California (1996), Washington State (1998), and Michigan (2006). Even the leading pro-racial and gender affirmative action group, the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary, admits that “the key to defeating the initiatives is to keep it off the ballot in the first place. That’s the only way we’re going to win.”

So, will John McCain, the Republican presidential nominee and Arizona’s senior senator vote for or against this initiative when he casts his ballot in Arizona on Election Day? It’s a fair question–one that needs a clear and unequivocal answer from him.

We know where Senator Obama stands on ending preferences–that position was staked out in 2006 when he campaigned against an identical voter-led effort in Michigan. As the former University of California regent behind all of the current and past anti-discrimination state initiatives, Ward Connerly, has pointed out, Mr. Obama cut a radio advertisement for the pro-preferences groups in which he claimed that minorities and women wouldn’t be able to get good educations or jobs if the Michigan proposal passed.

This is important for voters to remember. Despite his nuanced and eloquent rhetoric about the role of race and diversity in American life, Mr. Obama recently stated, “I still believe in affirmative action as a means of overcoming both historic and potentially current discrimination. But I think that it can’t be a quota system and it can’t be something that is simply applied without looking at the whole person . . .” In other words, Mr. Obama wants it both ways: yes to race preferences, but they need to be packaged “individually.”

Mr. McCain’s position on race- and gender-based affirmative action appears not very different from that of Mr. Obama’s. Yes, like Mr. Obama, he’s against “quotas” and is for “equal opportunity.” But who isn’t?

In truth, this position tells us nothing meaningful–as any first-year law school student knows, the courts have been striking down “quotas” as unconstitutional for decades.

More telling is Mr. McCain’s opposition in 1998 to an amendment offered by Senator McConnell of Kentucky to a federal transportation bill that would have replaced race- and gender-contracting set-asides with ones designed to help all small businesses, regardless of the owner’s skin color or sex. His vote against the amendment back then was a mistake, but one he can learn from, and build upon.

Like far too many in the Republican Party today, Mr. McCain objects to any legislation or initiative that seeks to end racial preferences as “divisive,” fearing they only energize blacks and Hispanics to turnout at the polls in heavy numbers to vote Democratic, causing Republican candidates to suffer. That’s too bad because the election data from past Connerly-led civil rights initiatives shows this fear is completely misplaced.

The outcome of the Michigan Civil Rights Initiative in 2006 illustrates the point. Like their Democratic opponents, the Republican candidates in Michigan running for governor and the U.S. Senate opposed MCRI. Both Republicans lost by wide margins, while MCRI passed with 58% of the vote. Moreover, an analysis by Michigan-based political consultant, Chetly Zarko, revealed that MCRI did not drive up minority turnout.

It should not be lost on the McCain campaign that all three states to pass anti-preference initiatives have been solidly blue for the last four presidential elections. The states coming up this November–Arizona, Colorado, and Nebraska–voted Republican in 2000 and 2004. He needs to win all three to claim the White House.

Moreover, these three new initiatives give Mr. McCain an opportunity to propose a judicious policy for voters concerning the role of race and ethnicity in our nation’s public policies. Specifically, he should embrace the notion that racial and gender preferences be replaced with “class-based” or “need-based” ones, an idea that has floated around policy circles–on the right and the left–for decades.

Even Mr. Obama recognizes that race-neutral or “universal,” affirmative action programs are fairer and less polarizing than those that are defined by race. Nonetheless, Mr. Obama refuses to take this reasonable step and propose the elimination of governmental racial classifications and preferences altogether.

Mr. McCain should, however. He gains nothing by embracing the same flawed civil rights vision as Mr. Obama. Standing up for colorblind public policies and endorsing the Arizona initiative is not only the honorable and moral position, it will prove helpful in reaching working-class voters this fall.

It was an error for Mr. McCain to support race preferences in 1998. He shouldn’t make that mistake again.

The SAVE Act would increase the employee verification system to six million employers, beef up the number of Border Patrol agents and detention centers, and pressure state and local cops to enforce federal immigration laws. The Prevention of Unsafe Licensing Act forbids states and jurisdictions from issuing driver’s licenses or other official government identification cards to individuals who are in the country illegally–a direct rebuke to New York Governor Elliot Spitzer’s ill-conceived idea (now withdrawn) that landed Hillary Clinton in hot water during a recent debate.

However useful these bills may be, Congress is remiss in not addressing another serious immigration issue. Dozens of cities, towns, school districts, and other jurisdictions in which non-citizen immigrant populations have mushroomed in recent years are being strong-armed by the Department of Justice into changing centuries-old forms of governance to accommodate non-citizens.

From Port Chester, New York, to Alamosa County, Colorado, to Santa Paula, California, to Sunnyside, Washington, lawsuits filed by the DOJ or public-interest legal-defense organizations have forced these jurisdictions and others to change their at-large system of representation to single-member districts because of the massive influx of illegal immigration. In the case of Sunnyside (pop. 14,000), the mere threat of a lawsuit by the DOJ caused the city to nix its current form of governance. Sunnyside caved in without even fighting back.

Port Chester (pop. 28,000) is a good example of what is happening around the country. During the last decade or so, this small township in Westchester County, New York, has witnessed a 73-percent growth of its Hispanic population, making the Hispanic population a majority of the town’s residents. But because no Hispanic has ever been elected to the town’s board of trustees–all of whom run at-large–the Department of Justice sued to force Port Chester to ditch its 138-year-old at-large system of governance and instead, create six, single-member trustee districts. Of course, the DOJ wants half of those districts gerrymandered in a manner to allow a Hispanic to win–or, in the more formal language of the law, Hispanics must be able to “elect a candidate of their choice.”

One does not have to sympathize with the Minutemen to conclude this is not fair, but the injustice to Port Chester is further compounded when one looks at the details of DOJ’s proposed districts, which are based on the voting-age population overall, rather than the voting population of citizens. For example, one of the districts DOJ proposed will have a 77 percent Hispanic voting-age population, but only a 56 percent citizen Hispanic voting-age population. Another district has a slight majority of Hispanics, but only a 28 percent Hispanic citizen population. In other words, the federal government wants some of the new voting districts to have citizen-underpopulated Hispanic districts and citizen-overpopulated non-Hispanic ones.

So, this gerrymandering will result in a non-Hispanic district being drawn with 5,000 persons of voting age, 95 percent of whom are citizens, to be represented by one Port Chester trustee. A Hispanic district, meanwhile, might also have 5,000 persons, but only 50 percent of whom are citizens. This kind of district scheme will result in one town trustee representing 4,750 citizens, while another trustee represents only 2,500 citizens.

Is it fair that in one district 2,500 citizens get one representative, while in a neighboring district, it takes 4,750 people to get one? No, it’s not.

This is not an isolated case. As numerous school districts, towns, and cities throughout the country have experienced a surge in their illegal (and legal) non-citizen populations, the courts have forced them to adopt new voting systems like the one in Port Chester.

The immigration issue is complex and thorny, but polls clearly indicate that voters–especially Republicans–are far less concerned about illegal immigrants taking jobs away from Americans than they are the government giving illegal aliens a better deal than they as citizens are getting. Forcing jurisdictions to change their long-standing systems of governance and creating disparities of representation between groups because of illegal immigration growth surely falls into this category.

Regardless of one’s opinion about how to secure our borders and address the 12 million illegal immigrants already here, Congress has an opportunity to fix this specific problem now. Simple legislation requiring the courts to count only citizens for the purposes of voting rights litigation would allow jurisdictions to keep their current governance systems in place, regardless of the influx of non-citizens.

By the way, in addition to agreeing to fix our leaky borders, Mitt Romney, John McCain, Mike Huckabee and the other Republican presidential contenders should unite behind legislation to remedy this problem as well.

Comprehensive immigration reform that addresses all issues would be more beneficial than a piecemeal approach, but that appears unlikely for now. In the meantime, both Democrats and Republicans should address this problem–waiting will only continue to stoke more animosity and resentment for our immigrant populations, to say nothing of subjecting cities and counties to unfair and perhaps unconstitutional laws.

Apparently, if you’re Sen. Barack Obama (D-Ill), you play the race card.

And that’s exactly what he’s done with his latest salvo against Hans von Spakovsky, the Bush administration’s nominee to the Federal Election Commission. Recently, Sen. Obama published an inflammatory essay in the Chicago Defender, a weekly newspaper serving Chicago’s black community, blasting von Spakovsky for undermining voting rights and creating roadblocks for minority voters.

Unless you follow election law issues, you probably have not heard of von Spakovsky until recently. He has served without any controversy on the FEC since January 2006 as a recess appointee. As former Commissioner Bradley Smith and other observers have noted, his FEC career has “been tremendously successful.” But it’s not his work on the FEC that has Sen. Obama and others on the left so lathered up, but rather, his prior tenure as a career lawyer in the Civil Rights Division at the Department of Justice, where he worked on voting rights issues. Of course, the FEC has nothing to do with enforcing the Voting Rights Act, but you might not know this if you listen only to Sen. Obama and other von Spakovsky detractors.

So, to understand the real von Spakovsky controversy, you can’t begin with Obama’s op-ed. For that, a much neglected story needs to be told.

Throughout the 1990s, the Justice Department’s voting rights section was mostly staffed with movement liberals who often failed to enforce the law and instead did the bidding of liberal-leaning interest groups. Things were so out of hand that a three-judge federal court called them on the carpet in a 1994 redistricting lawsuit writing, “Succinctly put, the considerable influence of ACLU advocacy on the voting rights decisions of the United States Attorney General is an embarrassment.” In fact, during the 1990s, American taxpayers paid over $4,000,000 in attorney’s fees awarded against the civil rights division after courts found that it had filed nearly a dozen frivolous discrimination cases, something that has not occurred during the current administration.

Following the 2000 election, these liberal staffers found that they were no longer permitted to run the voting rights section as an arm of the ACLU. One of the new employees blocking their way was von Spakovsky. Frustrated after losing power, many of the career employees eventually quit and joined the interest groups they once conspired with from within the Justice Department, such as the Lawyers’ Committee for Civil Rights, People for the American Way, and the ACLU. This past year, they have held a prolonged class reunion to oppose von Spakovsky’s nomination to the FEC. Sen. Obama, apparently eager to find a “civil rights” issue to champion, has become their star spokesman.

None of Obama’s criticisms are new–all are simply reiterations of the same old issues battled by the left: voter identification cards, purging voter rolls of felons, and redistricting efforts that might benefit Republicans. When the Senator’s charges are closely examined however, it’s clear that von Spakovsky’s only crime was his failure to embrace the agenda of the liberal voting rights community. Let’s examine each one.

In 2003, the Georgia legislature passed a law requiring voters to produce an official government-issued I.D. before being allowed to vote. Because Georgia is covered by Section 5 of the Voting Rights Act, it was required to seek permission from the Justice Department before this new I.D. law could go into effect.

Much to the consternation of the career lawyers there, the Justice Department approved the new law, correctly noting that, under the legal standards of Section 5 of the Voting Rights Act, it was not racially discriminatory and would not unduly harm minority voters. Obama claims von Spakovsky improperly overruled the career lawyers and ramrodded this discriminatory law into effect.

Yes, shortly after the Justice Department approved the law, a Georgia federal judge enjoined the state from implementing the new I.D. requirement, but on constitutional grounds for which the Justice Department had no standing to object. At no time did the judge ever find racial discrimination in the I.D. requirement. As it finally turned out, the Georgia legislature modified the new law by making I.D.s free to anyone who applied for one. The law is now in effect in Georgia. To date, no one has demonstrated how any of Georgia’s minority voters have been harmed by the I.D. requirement during the elections that were held last September.

The Georgia case demonstrates that von Spakovsky made the correct decision to approve the law, and to do otherwise would have set the Justice Department up for another embarrassing rebuke from the courts. This all-important legal distinction is apparently lost on Sen. Obama, who is clearly not fluent in the legal intricacies of the Voting Rights Act.

Next, Obama’s op-ed criticizes von Spakovsky for endorsing the need to purge election rolls of felons in 2000 when he was a member of the Fulton County Registration and Election Board in Georgia. This charge seems to be based on a paper that von Spakovsky authored in 1997 for the Georgia Public Policy Foundation on ways to improve the integrity of state and local elections. He recommended that the Secretary of State “run a monthly computer comparison of the voter registration lists with the records of the Georgia Department of Corrections” in order to discover the names of felons who were ineligible to vote.

How can this be a violation of minority voting rights? Well, it’s not. In the 1993 National Voter Registration Act (also known as “Motor Voter”), Congress required all United States Attorneys to notify state election officials when registered voters are convicted of felonies in federal courts. A decade later, Congress enacted a housekeeping measure virtually identical to von Spakovsky’s recommended procedure when it passed the Help America Vote Act, which required states to set up computerized voter registration lists and to “coordinate the computerized list with State agency records on felony status.”

So, according to Sen. Obama, von Spakovsky is disqualified from serving on the FEC because he endorsed a procedure that would not only helps states (including Illinois) enforce their existing laws, but one that Congress eventually implemented as a federal requirement.

Finally, Obama’s last major objection to von Spakovsky is his involvement in the now infamous, Tom DeLay-inspired, Texas congressional redistricting plan in 2003. Like the controversy over the Georgia voter I.D. statute, in 2003, the Texas legislature redrew the state’s congressional districts resulting in a pick up five new GOP representatives in the next election. Obama claims that von Spakovsky overruled the career staffers’ recommendations that the plan be rejected as harmful–or, in the language of the Voting Rights Act, “retrogressive”–to the current position of minority voters. The case eventually made its way to the U.S. Supreme Court where one district out of 32 was struck down as a violation of a completely different part of the Voting Rights Act–a part that von Spakovsky and the voting section have no jurisdiction to enforce. Once again, just like the Georgia I.D. case, the courts proved von Spakovsky made the right legal call.

So what is really at issue here? Politics. The career staffers at Justice wanted to deny approval of the Texas redistricting plan and they were overruled–correctly as it turned out–by their bosses who ran the Civil Rights Division. The career staffers were so infuriated with the decision that someone leaked their internal legal memoranda to the Washington Post, violating every professional rule of ethics and professional conduct imaginable.

In holding this issue out as evidence that von Spakovsky is unfit for the FEC, Sen. Obama displays either a complete ignorance of Voting Rights Act and the Supreme Court’s holding in the Texas case, or a willingness to mislead the public in order to promote his civil rights bona fides.

There is no valid reason that von Spakovsky should not be confirmed to the FEC. And there is no reason why the savage, personal attacks made on von Spakovsky’s legal judgment should continue. That those unfair and untrue attacks have been embraced by someone who seeks to be America’s next president is an unflattering reflection on the wisdom of Barack Obama, not Hans von Spakovsky.

In 40 years, civil rights goals have gone from integrating lunch counters in Greensboro, N.C., to sheltering hedge-fund operators from tax increases in Greenwich, Conn.

What a cynical and divisive rationale this is.

Let’s be real: after the summer plunge in stock and bond values, hedge-fund managers aren’t the most endeared professionals these days, and they know it. Even without the recent market volatility, they faced a difficult challenge convincing Congress that a large part of their compensation–which often reaches multi-million dollar amounts–should be taxed at the capital-gain rate of 15% instead of the earned income rate, which can be as high as 35%.

In all likelihood, the hedge-fund industry’s public relations people understood the struggle they were up against in generating any sympathy for this policy on a Democratic Capitol Hill with an election looming. So that’s where the newly-formed “Access to Capital Coalition” comes in: Turn a debate about how hedge-fund and private-equity managers’ compensation is taxed into one about civil rights. Who, after all, could be in favor of any policy that is harmful to women and minorities?

The new group has some big hitters among their members including Earvin “Magic” Johnson who is now the principle of the multi-billion dollar Canyon Johnson Urban Fund, and Robert Johnson, the founder of Black Entertainment Network, which he sold to Viacom for over $3 billion.

This race-gender tactic is repellent. Reasonable people can have a reasonable debate about whether Congress should raise taxes on “carried interest,” a slice of the profits that go to the managers of these pooled funds. Persuasive arguments have been offered by those who want to maintain the current system and those who don’t. But it is simply ludicrous–pathetic, really–to claim that women- and minority-owned investment firms will suffer more than their similarly-situated counterparts if taxes are raised.

All small firms may suffer, or not, if saddled with higher taxes, regardless of the race or gender of its principals. This kind of “disparate impact” rationale has been fought tooth and nail by business interests in their employment practices for over three decades.

Some observers speculate there are two reasons behind the formation of the Access to Capital Coalition. The first is to peel away black and Hispanic members of Congress who have been vocal in supporting legislation to end the lower rate. Specifically targeted is the chairman of the House Ways and Means Committee, Charles Rangel, an African-American who sponsored legislation, along with 22 other Democrats, to raise this tax.

The other reason is to give cover to Democrats in the Senate like Charles Schumer and Christopher Dodd whose constituents and donors greatly benefit from the status quo.

Whatever the reasons, it is sad that this race ploy is being embraced by the very investment firms that should know better–the same ones, in fact, that have had it played against them for years.

Just a few months ago for example, Jesse Jackson fired off a shot at the Blackstone Group’s Stephen Schwarzman for not setting aside more shares of the firm’s IPO for minority-owned firms. Mr. Jackson called Blackstone’s refusal to kowtow a “pattern of exclusion” that results in “Wall Street apartheid.” This kind of shake down is an old story.

So it is especially ironic that the Wall Street Journal now reports that some funding for the Access to Capital Coalition is being provided by the Private Equity Council, “a Washington-based association formed by 11 larger funds including the Blackstone Group and the Carlyle Group.” It appears that the investment community has taken a page from the Al Sharpton-Jesse Jackson playbook.

Regardless of how this issue is resolved, needlessly introducing race, ethnicity, and gender as a wedge to promote one policy over another is wrong. Let’s have a debate about the costs and benefits of this tax increase without dealing from the bottom of the race deck.

When it was passed in 1965, the Voting Rights Act was crafted to achieve one critical objective: ending the scandalous Jim Crow barriers to voting faced by blacks in Southern jurisdictions. The law banned literacy tests, provided federal election registrars and criminalized harassment of black voters. Section 5 was included in the statute as a temporary insurance policy to prevent new and clever ways for Southern jurisdictions to disenfranchise blacks.

Today, Section 5–which was set to expire in 1970 but has been reauthorized four times, most recently in 2006–affects nine states and counties in seven others (including four in California–Kings, Merced, Monterey and Yuba), places where minorities once had extremely low voter registration and election participation rates.

It forbids these states and counties–and every entity in them that holds government elections–from enacting any changes to voting procedures without the consent of either the U.S. attorney general or the U.S. District Court for the District of Columbia. Whether it be moving a polling location across the street or congressional redistricting, it must be preapproved.

At issue in the Northwest Austin case is whether the municipal utility district–also known as a “MUD,” which levies taxes and is considered a “political subdivision” under the Voting Rights Act–can seek a “bailout” from Section 5.

The “pre-clearance” requirement of Section 5 is unprecedented. Neither before nor since has Congress passed a statute requiring a state or one of its sub-jurisdictions to seek permission from the federal government before local election laws or rules can go into effect. This provision was, and still is, a direct assault on our nation’s constitutional system of federalism. Back in the mid-1960s, it may have made sense to include it in the original law–given the long, ugly history of the South–but today it is no longer justified.

The extreme nature of Section 5 was recognized when the Voting Rights Act was passed–that’s why it had an expiration date. In addition, the “bailout” provision allows jurisdictions with a 10-year record of no voting rights violations to petition to be removed from Section 5 scrutiny. The Northwest Austin MUD is making the claim that it meets the criteria and is entitled to bail out; the Justice Department is fighting the case because it says only counties, which register voters, not MUDs, which are a subset of counties, are eligible for a bailout. The MUD’s position is that, having strictly adhered to the law, if it is not allowed to seek a bailout, then Section 5, as it is applied, is unconstitutional.

The Northwest Austin Municipal Utility District serves about 3,500 people in a suburb in central Texas, but its argument could be made for many of the cities, towns, school boards and utility districts covered by Section 5 in 2007. The extreme oversight it calls for and, as important, the benchmarks and rules codified under it are simply no longer necessary or, worse, are creating unintended problems.

During Voting Rights Act reauthorization hearings last year, Congress recognized that to justify Section 5 it needed to show evidence of ongoing racial hostility to minorities in the jurisdictions covered by the law. But try as it might to document systematic racial harassment and voting irregularities, it failed. The broad patterns of discrimination in place in 1965–when, for example, only 6% of Mississippi’s blacks were registered to vote, while 70% of whites were–happily don’t exist anymore. Furthermore, the data that do exist (mostly anecdotes concerning purged names from voter rolls, polls closing early or opening late, and polling places running out of ballots) show that barriers to voting are just as prevalent outside the covered states, in places like Arkansas and Ohio, as they are in covered ones like Georgia and Texas.

Moreover, testimony revealed how Section 5 jurisdictions have been forced to practice racial gerrymandering. In the 1960s and thereafter, these jurisdictions were denied approval for changes in their election rules and voting districts unless they met guidelines that, in essence, guaranteed enough “majority-minority” districts to bring overall representation into line with racial demographics. These guidelines have stayed the same even as minority populations have become more dispersed in the last three decades.

Now, those who draw up voting districts must systematically “harvest” blacks (or Latinos) from multiracial, multiethnic neighborhoods in order to meet the requirements of those old guidelines, creating districts with no sensible relationship to geography and no real civic ties. This electoral apartheid has contributed to the ideological polarization of voting districts by insulating white (mostly Republican) officeholders from minority voters and issues specific to minority communities and, conversely, minority elected officials (mostly Democratic) from white voters.

If the U.S. District Court or, perhaps ultimately, the Supreme Court allows the Northwest Austin MUD to bail out from Section 5 coverage, hundreds and perhaps thousands of small jurisdictions within larger states and counties covered by Section 5 will be able to follow suit, taking their good records on voter rights to the government and taking themselves out of the group of jurisdictions subject to the old guidelines . That would mitigate much of the current racial gerrymandering.

And if the courts strike down Section 5 altogether, it may compel Congress to stop reauthorizing the aging 1965 Voting Rights Act and craft new, colorblind voting rights legislation to address contemporary problems.

Some observers believe that because of our nation’s history, the Voting Rights Act is sacrosanct, and they doubt the courts will act to change it in any way. But fixing its defects would ensure that the act’s original goal–incorporating minorities fully into the electoral process–would be strengthened, not weakened. Here’s hoping the Texas MUD succeeds.

But all that may change this year: The U.S. Department of Justice has decided it doesn’t like the way Port Chester has conducted its elections for the last 139 years and has sued, claiming the current at-large voting violates the Voting Rights Act. The federal judge hearing the case a few months ago was so thoroughly persuaded by the federal government’s arguments that he cancelled a forthcoming election and indicated he will soon rule against the village, compelling it to adopt a new system of government.

So, what changed after 14 decades to bring the government’s wrath down on Port Chester? One thing unforeseen when the Voting Rights Act was passed in 1965: massive Hispanic immigration.

For all of the legislative twists and turns in the debate over the recent immigration bill, few on either side of the issue are discussing how legal immigrants are altering centuries-old forms of governance in dozens of towns, school districts, and other jurisdictions throughout the country. Forget for a moment the concern some have about illegal immigrants voting fraudulently. Whatever the number of elections affected by noncitizen voting fraud, it is dwarfed by the number of contests that have been affected legally by immigrants because of our nation’s election laws. It’s worth considering whether the law in this area needs to be revisited–and changed.

Port Chester’s experience illustrates the problem. From 1990 to 2000, census data indicate the Hispanic population grew by 73 percent, making Hispanics a 46 percent plurality of the residents, with non-Hispanic whites at 43 percent and non-Hispanic blacks at nearly 7 percent. Demographic experts extrapolating from the recent trends estimate Hispanics are by now the majority.

Even if they are, though, no Hispanic has been elected to the board of trustees. Because of this, the Department of Justice alleges that Port Chester’s Hispanic citizens are victims of voting discrimination because they have "less opportunity than white citizens to participate in the political process and to elect candidates of their choice." This allegedly violates Section 2 of the Voting Rights Act–one of the act’s permanent provisions that apply to all jurisdictions coast to coast.

To remedy the alleged violation, the Department of Justice instructed Port Chester to scrap its at-large election of trustees and instead carve out six single-member voting districts, of which two to three must contain enough Hispanics to make it likely they will be able to "elect candidates of their choice"–in other words, one of their own.

Setting aside the implication that recent immigrants from Mexico and El Salvador bear the effects of historic American discrimination (to say nothing of their eligibility for affirmative action preferences in education, contracting, and employment), does current law really require the village of Port Chester to adopt a new system of representation simply because of a surge in the number of Hispanic immigrants? Well, based on 20-year-old case law, apparently so. Here’s why.

The Justice Department’s claims rely on Thornburg v. Gingles, a 1986 Supreme Court case which established a three-part test to determine if at-large and multimember voting methods violate the law. According to Gingles, single-member districts must be created when (1) the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) the minority group votes as a cohesive bloc; and (3) the white majority votes as a bloc to defeat the minority group’s preferred candidate. The judge in the Port Chester case found all three of these factors to be present, so he enjoined the village from holding elections until a full trial could take place. That trial ended a few weeks ago, and a decision is due shortly.

While each of the Gingles preconditions has serious flaws worthy of discussion, the first is the most troubling in this case because the Hispanic districts the Justice Department wants Port Chester to adopt have significant deviations in citizen population size from the non-Hispanic districts. For instance, one of the DOJ-proposed Hispanic districts has a 77.27 percent Hispanic voting-age population, but only a 56.27 percent citizen Hispanic voting-age population. Another proposed district has a 51.8 percent Hispanic voting-age population, but only a 28 percent citizen Hispanic voting-age population.

This isn’t fair. It means that the Justice Department wants the village to have citizen-underpopulated Hispanic districts and citizen-overpopulated non-Hispanic ones. So, for example, a non-Hispanic district might be drawn with 5,000 persons of voting age, 95 percent of whom are citizens, to be represented by one Port Chester trustee. A Hispanic district, meanwhile, might have 5,000 persons, only 50 percent of whom are citizens. This would result in one village trustee representing 4,750 citizens, while another trustee represented only 2,500 citizens.

This kind of voting scheme violates the legal doctrine of one man, one vote established by the Supreme Court in the early 1960s. Jurisdictions in the Deep South tried similar shenanigans soon after the passage of the Voting Rights Act in 1965 in an attempt to "dilute" the power of the black vote. The courts properly closed this and other loopholes. But the courts back then did not anticipate the effect of waves of noncitizen Hispanic immigration. This inequity goes to the heart of the Equal Protection clause of the Constitution.

So, here’s the legal question in Port Chester that needs resolution: Does undersizing the citizen population in the Hispanic voting districts dilute the strength of the voters in non-Hispanic districts? In other words, should 2,500 citizens in one district get one representative, while in a neighboring district, it takes 4,750 people to get one?

The Supreme Court has long held that other than for a state’s congressional districts, population deviations between voting districts cannot be greater than 10 percent. Yet, the Court has never defined a critical variable in this equation, namely, what is the relevant "population"?

It is a question that has bedeviled the lower courts. The Fifth Circuit has held that it is "a choice left to the political process" which population to count. The Fourth Circuit similarly held that courts have no business getting into this essentially "political" question. The Ninth Circuit, in contrast, has held that using citizen voting-age population instead of total voting-age population in these contexts would violate the Constitution.

This question needs resolution, either from the courts or, better, from Congress. While the immigration bill appears dead for now, these issues still need to be fixed. And what better way than legislation? After all, how many members of Congress believe U.S. citizens should have their votes for any elective office "diluted" because legal and illegal noncitizens are counted for the purposes of constructing single-member districts?

It’s a good question. The people of Port Chester and elsewhere need to find out.

Here’s why. According to recent breathless accounts in the press, von Spakovsky was at the center of a Bush-administration conspiracy to, among other misdeeds, disenfranchise minorities in Georgia by allowing the state to require a voter to produce a photo I.D. before casting a ballot. In addition to this pseudo-abomination is his role in the Tom DeLay-inspired, Texas congressional redistricting plan in 2003, which also was alleged to harm minority voters. All of these actions took place from 2001 to 2006 while he was a career “front office” attorney in the civil-rights division of the Department of Justice. In this position, he worked for the political appointees President Bush selected to run the Justice Department.

With Attorney General Alberto Gonzales on the ropes now for the controversial firing of a handful of U.S. attorneys, allegedly for partisan reasons, the press and others have double-backed to von Spakovsky. Scrutinizing his role in Texas and Georgia, they are trying to unearth a pattern of ongoing partisan irregularities at the Justice Department. They assert that von Spakovsky and others vetoed the wise, nonpartisan, and legally accurate recommendations of the department’s career lawyers to suppress minority voter turnout in 2004.

The great irony in both of these charges is that von Spakovsky’s legal analysis and counsel to his bosses at DOJ in the Texas and Georgia matters proved legally correct, while the career lawyer’s analysis proved to be wrong.

In Texas, the Justice Department career attorneys wanted the U.S. attorney general to forbid the redistricting plan from going forward because it would be harmful or, in legal terms, “retrogressive” under Section 5 of the Voting Rights Act to the interests of minority voters. Yet, after the U.S. Supreme Court reviewed the plan, they found only one of the 32 districts had been in violation, but of a totally different section of the act–one for which the attorney general lacked the statutory authority to forbid the plan from going into effect.

It’s the same story with the Georgia voter-I.D. controversy. The data the attorney general analyzed indicated that among those Georgians who had driver licenses that could be used at the polls, 28 percent were black–exactly the percentage of the black voting-age population. Because no racial discrimination was found, the plan was approved. Eventually, a Georgia federal judge did enjoin the state from implementing the I.D. requirement, but not because it was racially discriminatory under the Voting Rights Act. Rather, he said it violated the equal-protection clause of the Constitution. There may have been reasons for individuals to legally challenge the Georgia I.D. law, but the attorney general was correct by allowing it to go into effect.

This is Election Law 101: Under Section 5 of the Voting Rights Act, the attorney general has the authority to prevent certain states (Texas and Georgia, along with seven others) from enacting election procedures that are harmful to minority interests. However, before he can stop any changes from going into effect, a high evidentiary requirement must first be established. As the courts found, both the Texas and Georgia election changes did not meet that threshold.

But this fact doesn’t seem to matter to von Spakovsky’s critics. In truth, the unspoken reason so many guns are trained on him is he refused to allow the DOJ career lawyers at the civil-rights division to continue to do what they have done for the last 15 years or more–strip-mine our nation’s laws to satisfy their own personal ideals of racial justice.

Meanwhile, the courts have not been blind to the abuses of the department’s civil-rights division. Between 1993 and 2000, the division was taken to the woodshed by various courts a dozen times–and forced to pay $4,107,595 in legal fees–for, among other transgressions, having a “disturbing” relationship with outside advocacy groups. For example, in an earlier Georgia case, the U.S. Supreme Court noted, “the considerable influence of ACLU advocacy on the voting rights decisions of the United States Attorney General is an embarrassment. . . . It is surprising that the Department of Justice was so blind to this impropriety, especially in a role as sensitive as that of preserving the fundamental right to vote.”

Apparently, overruling a career bureaucrat’s decision to misapply the Voting Rights Act is verboten in the fever swamps of Washington, D.C., these days. This is von Spakovsky’s great crime.

It is in the political interest of the Republican members of the Senate Rules Committee to stand by the president’s nominee, who by all accounts, is a widely recognized expert in election law. Democrats on the Rules Committee, Sen. Schumer most notably, should not be allowed to evolve the pseudo-scandal of the U.S. attorneys’ firings into a new pseudo- scandal about the Bush administration’s alleged suppression of minority voting rights. It’s up to Republicans to put an end to this foolishness now.

At issue before the Court is a pair of cases from Seattle and Louisville in which both school systems classify children by race and ethnicity and assign them to various schools in order to maintain a fixed racial balance.

In the Louisville case, for instance, this meant Crystal Meredith’s white, four-year-old son Josh was denied admission to his neighborhood elementary school because too many white children were in attendance there. He was forced to take a 90 minute cross-town bus ride to a school in need of more white kindergartners. The Meredith family sued the school district claiming the system violated the Equal Protection Clause of the Fourteenth Amendment.

If Louisville’s school assignment policy sounds familiar it’s because it’s a mirror image of another case decided by the Supreme Court in 1954–Brown v. Board of Education. In that case, Linda Brown, a black seven-year old living in Topeka, Kansas, wasn’t allowed to attend a neighborhood school because of her skin color and was forced to walk a mile through a railroad switching yard in order to catch a bus to an all-black elementary school.

So, the key question the court must resolve now is whether policies designed to achieve proportional racial integration in a schools’ student body should be allowed even if it causes some children to be excluded from certain schools because of their skin color.

For those who attended the oral arguments at the Court last December, it appeared the answer from five members was a resounding “no.” Justice Kennedy, in particular, expressed his skepticism of the concept of beneficial racial discrimination by remarking to the lawyer representing the Seattle school district that “outright racial balancing” of the kind used by Seattle was “patently unconstitutional.” He inquired, “Isn’t that what you (Seattle) have here?. . . You are choosing each student by the color of their skin.”

After badly botching their briefs in the University of Michigan affirmative action cases in 2003, the Bush administration finally got it right with these cases, arguing, correctly, that the Constitution very clearly–and strictly–forbids “good” and “bad” racial classifications and policies except for the most extraordinary and critically important reasons.

Without a doubt, if the high Court strikes down racial balancing in K-12 school assignments, the reaction from the Democrats and their allies will be loud and furious. Already some left-leaning and racial advocacy groups are circling the wagons in anticipation of a loss, claiming Brown v. Board of Education is about to be nullified with a neo-”separate-but -equal” régime poised to replace integration. Ted Shaw of the NAACP legal defense fund, for example, was quoted as saying a loss “would be a reversal of historic proportions.”

He’s wrong, of course, but if past is prologue much of the media will characterize the opinion as a nail in the coffin of school integration. It will provide the Democratic candidates–especially Sen. Obama who voted against both John Roberts and Sam Alito–a stage to howl with indignation.

It’s always dicey predicting how the Court will rule in any case. But if the opinion goes against Seattle and Louisville, the Republican candidates should be as enthusiastic here as they were with the partial birth abortion decision. Yes, it won’t be as easy; after all, a significant majority of the electorate is against partial birth abortion, while opinions are more mixed and nuanced when the issue turns to race. Nonetheless, this case will be the first, long overdue step in restoring the law to the timeless ideals enshrined in the Civil War amendments–equal treatment under law. No one said it better than Chief Justice John Roberts in a dissent he authored earlier this year: “It is a sordid business, this divvying us up by race.”

Opposing the racial-advocacy groups takes stout political courage. Too often Republicans try to split-the-baby or completely run away from issues like affirmative action and racial gerrymandering. More than ever, conservatives need a leader who won’t duck this issue. Let’s take note of how the GOP field handles the decision, regardless of the outcome. This is no time to go squishy.

Like much of the Voting Rights Act today, the Ashcroft fix is so fuzzy that it can mean just about anything a government lawyer wants it to mean. Sadly for the GOP, that lawyer seems unlikely to be Republican in 2011.

Since the Voting Rights Act was first enacted in 1965, there have been four congressional redistricting cycles, which essentially begin the year after the U.S. Census. In 1971, 1981, 1991, and 2001, Republicans controlled the White House and, hence, the Justice Department, which oversees enforcement of voting rights. But if Republicans lose the White House in 2008, a Democratic-controlled Justice Department will be interpreting and enforcing the act’s congressional redistricting requirements for the first time. Precisely how the Ashcroft fix is enforced may determine how congressional district lines are drawn in nine, mostly Southern, Republican-leaning states.

Ironically, the Bush White House and the Republican congressional leadership knew all about the latent dangers of the Ashcroft fix but chose to do nothing, hoping perhaps that the Supreme Court will strike down the law before 2010. That may yet happen. A Texas lawsuit challenging certain provisions of the act, Northwest Austin Municipal Utility District No. 1 v. Gonzales, was filed just six days after President George W. Bush signed the reauthorization.

The special three-judge panel hearing the case (as required under the Voting Rights Act) set a May 15 deadline for dispositive motions; oral argument is scheduled for September. Many legal observers believe that, regardless of the panel’s ruling on these motions, the case will be sent directly to the Supreme Court later this year or in early 2008.

At that point the justices may strike down or dramatically narrow the dangers in the Ashcroft fix. Or a Republican may be elected president in November 2008. But if the case is not successful and the GOP loses the White House, congressional Republicans’ political shortsightedness–and, frankly, ineptness–may keep Democrats in control of the House for a long time.

Pre-Approval Forever?

To understand more fully how the Republicans foolishly painted themselves into this corner, it is necessary to examine Section 5, the most controversial of the Voting Rights Act provisions reauthorized last year.

Section 5 bars designated jurisdictions from enacting any change to voting practices (such as congressional redistricting) without the prior consent of the federal government–specifically, the U.S. attorney general or the U.S. District Court for the District of Columbia. Back in 1965, this pre-approval or pre-clearance provision was designed to be temporary, set to expire after five years. It was also limited in scope to just eight states, mostly in the Deep South. Given the long history of Southern chicanery in finding clever ways to prevent blacks from registering to vote, the provision made perfect sense–at the time.

But instead of expiring in 1970, Section 5 has been repeatedly reauthorized while its scope has been expanded to cover additional jurisdictions. Meanwhile, in most of the Deep South–indeed, in most of the country–the Jim Crow days of Bull Connor and George Wallace are long gone. At last year’s reauthorization hearings, many legal scholars argued that some, if not all, of the jurisdictions now covered by Section 5 should be released from this punishing federal oversight. They also labeled the pre-approval process a startling departure from the way responsibilities between the federal and state governments are properly allocated in the Constitution.

Their testimony fell on deaf ears. In addition to extending Section 5 to 2031, Congress added a highly controversial component in order to overturn the results of a 2003 Supreme Court case, Georgia v. Ashcroft–hence the term, the Ashcroft fix. That case had somewhat improved the way the courts and the Justice Department determine if proposed changes to voting practices will harm the interests of minority voters.

Redrawing Lines

Until Georgia v. Ashcroft, the prevailing interpretation of Section 5 required that there be no diminishment, or “retrogression,” in the position of blacks and Hispanics as a result of any proposed changes to the voting process in the covered jurisdictions. To determine whether a change was retrogressive, the Justice Department would look at the likely effects of the change on the ability of minority voters to elect a candidate of their choice. In the redistricting context, this translated into no significant reduction in the percentage of minority voters in any majority-minority district. For example, a congressional district with a 53 percent African-American population could not be redrawn with a 47 percent African-American population.

Georgia v. Ashcroft altered the retrogression standard by giving state legislatures more leeway to reduce the minority population of majority-minority districts when new lines are drawn. In a 5-4 decision written by then-Justice Sandra Day O’Connor, the Court declared that minorities’ interests may be better served if they are not packed into a few ultra-safe districts, but instead are spread across more surrounding districts where they may have greater “influence” in more election contests.

The Court recognized that “minority voters in [the new influence districts] will face a somewhat reduced opportunity to elect a candidate of their choice.” But the Court concluded that Section 5 was meant to safeguard minority voters’ ability to influence elections in general, not to elect specific candidates.

In the dog-eat-dog world of redistricting, Georgia v. Ashcroft was seriously alarming. If it were to be applied after 2010, the broader standard might have caused a handful of black and Hispanic lawmakers to lose their safe, majority-minority districts. Those lawmakers were worried, to say nothing of Republican members who feared that Democratic-voting blacks and Hispanics might be drawn into their own safe districts.

So Congress decided to legislatively overturn Georgia v. Ashcroft. The Voting Rights Act gained a provision that requires any proposed change to a redistricting plan to be rejected–i.e., denied pre-clearance by the Justice Department–if it “has the purpose of or will have the effect of” diminishing the ability of minority citizens (including language minorities) “to elect their preferred candidate of choice.”

A Loaded Gun

Alarm bells were rung. Michael Carvin, a prominent Republican election lawyer who testified before the Senate during the reauthorization hearings, reminded Congress of the vagueness of the “ability to elect” standard and warned lawmakers about how it could be applied during future redistrictings. Carvin noted that since Democrats are usually minorities’ preferred candidates, the Ashcroft fix would essentially forbid any changes that would diminish their ability to elect Democratic candidates.

Moreover, he testified that allowing the Justice Department to deny pre-clearance to any plan because it “has the purpose” of diminishing minority voting strength is like handing the department a loaded gun. Look to the past, he said: “It is well documented . . . that the Justice Department routinely finds discriminatory purpose every time the submitting authority fails to create the maximum number of minority . . . districts.”

So, armed with the Ashcroft fix, how much damage could a Democratic controlled Justice Department do to Republican hopes after the next census? Quite a bit it turns out. Today there are 102 congressional districts in the states wholly covered by Section 5: Republicans hold 61 of these seats, while Democrats hold 41. After the 2010 Census, those same states may be apportioned another seven or eight districts because of population growth. If applied by an aggressively partisan attorney general, the Ashcroft fix could shift nearly 10 of these seats to the Democrats. Since the country is so evenly split between the two parties, that may be enough to keep the GOP out of the majority for a decade (especially since it is losing support in the Mid-Atlantic, Midwestern, and Western states).

A Supreme Court decision in Northwest Austin Municipal Utility District or another challenge to Section 5 may yet save the GOP from the fate that awaits it if the Democrats win back the White House. But if the courts don’t help the Republicans and they lose the presidency, there is going to be payback after 2010. No one can say they were not warned.

So it must have come as a shock to city officials when the U.S. Department of Justice slammed Springfield with a lawsuit claiming, among other transgressions, “rude treatment” of Spanish-speaking voters in 2005. According to the complaint filed in federal court, some “Spanish-speaking voters have left the polls without casting a ballot due to the absence of bilingual assistance.” The Justice Department asked the court to require the city to beef up its assistance, notably by hiring more Spanish-speaking poll workers and developing a plan to ensure that Hispanics “understand, learn of, and participate in all phases of the electoral process.”

Springfield, like hundreds of other towns and counties around the country, is subject to Section 203 of the Voting Rights Act because, among many other complex criteria, more than 5 percent of the city’s population speaks a particular foreign language. The law requires covered jurisdictions to translate all printed election materials into that language and provide foreign-language assistance at the polls. In its six years in office, the Bush administration has filed 19 lawsuits charging noncompliance with Section 203, more than were filed in all the years from 1978 to 2000 combined.

Setting aside for a moment the interesting point that even foreign-born voters should be able to understand their ballots since the ability to speak English is a condition for gaining American citizenship, it is fair to ask how much trouble non-English-speaking voters actually encounter at the polls. If the data from Springfield are any indication, the answer is very little. Not a single Spanish-speaking voter in Springfield had complained in the election that prompted the Justice Department to sue.

While this may seem puzzling at first, it turns out that complaints on the ground are not what trigger an enforcement action. Instead, Justice bureaucrats regularly comb through voter registration rolls in covered jurisdictions, counting Spanish, say, or Chinese or Vietnamese surnames; then they count the number of foreign language-speaking poll workers; and if the ratios don’t comport with their ideal percentages, they sue. No phone calls, no warning letters, no inquiries about extenuating circumstances. They go straight to court.

Springfield entered into a consent decree with the Justice Department that required the town to triple the number of bilingual poll workers it hires and to allow federal observers to monitor the next few elections. The government sent in a small army of monitors to observe the first election after this agreement, a primary in September 2006. Springfield’s city attorney, Ed Pikula, told the Associated Press, “It’s unfair to saddle the city with that type of intrusion.” And it cost the American taxpayer tens of thousands of dollars.

How did the government run up such an exorbitant tab? The Department of Justice sent four employees from Washington to Springfield at a cost of $3,488 for travel, room, and board. The Office of Personnel Management sent in 45 employees from around the country, some from the Northeast, but many from as far away as California and Florida, according to sources who were in Springfield during the election. Assuming similar costs for both agencies, the monitoring operation cost at least $40,000.

And how helpful to Springfield’s Spanish-speaking voters was this exercise? According to the observation reports filed by these 45 people, there were 92 instances of bilingual “voter assistance.” That is, 92 voters out of more than 16,000 said something to a poll worker in a language other than English. They may have asked a question about the ballot, or made a comment on the weather; regardless, the interaction was recorded as a “person receiving language assistance.” This monitoring didn’t come cheap at $435 per voter. If Washington sends the same number of observers for the general election, where turnout is higher, the monitoring cost will still run more than $100 per voter assisted.

Boston is another covered city, and it held a primary the same day as Springfield. The Department of Justice sent 6 employees from its Civil Rights Division to Boston at a cost of $6,000, and the Office of Personnel Management sent 49 observers. Out of 87,000 voters in Boston that day, 210 received “language assistance.” The taxpayers’ tab was less than Springfield’s bill, but still more than $250 a voter.

Voting is the vital mechanism of democracy, and the government should make every effort to ensure that elections are accessible and fair. But there are better ways of going about it than this. Most election officials are mindful of the law and want to make voting accessible to everyone. But enforcement along these lines is unnecessary and, frankly, foolish. The Justice Department has embraced the legal tactics of a sue-happy plaintiff’s lawyer: dig through a jurisdiction’s election data looking for an improperly low number of bilingual poll workers, file a lawsuit, then muscle the local government into a consent decree and settlement–another scalp to add to the pile.

(Indeed, there is speculation that the real impetus for the sudden increase in Section 203 enforcement was a series of U.S. Supreme Court decisions in voting rights cases culminating in 2003, which had the effect of significantly reducing the workload of the career lawyers in the voting section at the Justice Department. For what it’s worth, 17 of the 19 enforcement actions brought by the Bush administration have been filed since those decisions came down.)

Congress was skeptical of renewing the foreign language ballot provisions of the Voting Rights Act last summer. Led by Rep. Steve King, an Iowa Republican, 181 GOP members of the House (and 4 Democrats) voted to eliminate Section 203. Unfortunately, the effort failed, and the provision was renewed for 25 years. Too bad members of Congress weren’t aware of the deplorable manner in which Section 203 was being enforced when they made this decision. Now the only way good sense can prevail in the matter of foreign language ballots is for the Justice Department of its own accord to stop suing jurisdictions unnecessarily and start reasonably enforcing the law.

Speaking of which, just whose job is it anyway to enforce the requirement that new citizens be able to speak English?

Despite his multiracial lineage–his mother was a white Kansan, his father a black Kenyan–Obama claims he stopped advertising his mother’s race at the age of twelve or thirteen, but instead, embraced his racial identity as a black man. So, how much, if at all, should Obama’s race matter to us anyway?

The simple answer is none at all–race should have no bearing on the merits of anyone’s candidacy. But that is not the case with Barack Obama. One of the reasons Americans are enthralled with him is precisely because he is black and for the unique American melting pot story of his heritage. Without a doubt, most Americans would love to see a black win the presidency, thus concluding the long and difficult struggle of blacks to achieve political representation and power. For white Americans, such an outcome would have the tacit effect of exonerating them of the country’s historical racial failures. Or, as Hoover Institution scholar Shelby Steele has observed, “to demonstrate to the world that they’re not bigots.” Given all this, how then should Barack Obama thread the needle of his racial identity? And what policies regarding race should he advance?

Who Is Barack Obama?

It is unclear from his speeches and writings how much importance Barack Obama puts in his racial identity. Take, for example, his first book, the autobiography Dreams From My Father, written in 1995 at the age of 33. In it he chronicles his painful search for a father he never knew and a “workable meaning for his life as a black American.” Throughout the book, whether as a teenager growing up in middle-class Hawaii or much later as a visitor to Kenya, he struggles with the meaning of his race: “My identity might begin with the fact of my race, but it didn’t, couldn’t, end there.”

Between the publication of his first and second book, Obama spent eight years in the Illinois senate. In 2004, as a candidate for the U.S. Senate, he delivered the keynote address to the Democratic National Convention in Boston. The speech was masterfully inspiring and included what many believed was his understanding of what role race should have in America today: “There is not a Black America and a White America and a Latino America and Asian America–there’s a United States of America.”

But Obama backs away from this vision two years later in The Audacity of Hope, his best-selling political manifesto. He writes, “when I hear commentators interpreting my speech to mean that we have arrived at a ‘postracial politics’ or that we already live in a color-blind society, I have to offer a word of caution. To say that we are one people is not to suggest that race no longer matters–that the fight for equality has been won, or that the problems minorities face in this country today are largely self-inflicted.” Yet, he concludes that “the overwhelming majority [of white Americans] these days are able–if given the time–to look beyond race in making their judgments of people.”

Together, these musings suggest that Obama, like many Americans, is ambivalent about how much race should define our lives. Yet if he is unsure of the degree race defines his life, he is much more certain of the policies the nation should pursue to close the education and economic gaps between the races.

What Would He Prefer?

Although he has been a vocal supporter of racial preferences in the past, Obama begins to suggest a different policy direction in The Audacity of Hope. Race-based affirmative action policies, he recognizes, have polarized the races, while race-neutral or “universal” programs unite them. “Rightly or wrongly, white guilt has largely exhausted itself in America; even the most fair-minded whites…tend to push back against suggestions of racial victimization–or race-specific claims based on the history of race discrimination in this country.” During his first trip to New York as a young man, he writes, he “began to grasp the almost mathematical precision with which America’s race and class problems joined.”

Advocates of “class-based” or “race-neutral” affirmative action have been around a long time–even then-governor George W. Bush supported “need-based” government contracting set-asides, as did many congressional Republicans in the 1990s. But, for the most part, no recent Democratic presidential aspirant has been as bold as Obama in discussing the problems with race-based affirmative action: “An emphasis on universal, as opposed to race-specific, programs isn’t just good policy; it’s also good politics.”

Beneath this extraordinary statement, coming as it does from a black, Democratic, presidential aspirant, lies a massive iceberg capable of transforming the nation’s racial policies–if he has the courage to pursue it.

Obama is correct about the political implications–it is beyond debate that ending race-specific programs is good politics. Given the chance, the overwhelming majority of whites want to end race-based affirmative action as was evidenced last November when Michigan voters passed the Michigan Civil Rights Initiative by a 16-point margin. Ward Connerly and Jennifer Gratz, the organizers of the Michigan voter initiative, have announced plans to organize similar initiatives on Election Day in 2008 in as many as nine states, including the swing states of Missouri, Colorado, and Arizona. It is unlikely this has escaped the attention of campaign strategists in either party.

This presents Barack Obama with unique opportunity. Having campaigned against the passage of the Michigan initiative, can he chart a new path now that he is running for president? And, having admitted he attended Harvard Law School because of affirmative action, can he now say the time has come to try something different?

To both questions, the answer is “Yes.” First, he is on record in his enthusiasm for universal preference policies, so advocating for “race-neutral” affirmative action is a short leap for him to make politically. Second, just because he was admitted to a prestigious school because of racial preferences does not mean his two young daughters should be as well. After all, it is unreasonable for him to argue that in 2007 his daughters should have the bar lowered for them, while the daughters of a white working-class family should not.

“A pro-civil rights Democrat doesn’t become complicit in an anti-civil-rights agenda because he or she questions the efficacy of certain affirmative action programs,” he wrote shortly before the last election. So, like Nixon’s overture to China, it may fall to a liberal, black Democrat like Barack Obama to question the wisdom of our current race-based affirmative-action polices and map a new course. Let’s hope he does.

Notice of Electronic Filing

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It is too early to tell if the trip to the woodshed congressional Republicans suffered earlier this month will have any real effect on their core principles going forward. While dozens of postmortems in the past few weeks have noted the years of corruption, earmarks, and pork-barrel spending as emblematic of Republicans cast adrift from their conservative traditions, nothing better encapsulates the meltdown of GOP values than their capitulation on the issue of affirmative action. And nothing proves this point better than the position most of Michigan�s GOP candidates and elected officials took regarding the Michigan Civil Rights Initiative (MCRI) � the recent ballot initiative that eliminated race-based affirmative action in public education, employment, and contracting.

Fearful of driving large numbers of minorities to the polls, the Michigan GOP establishment believed it could mitigate high turnout by opposing MCRI. But on Election Day, Republican candidates who opposed the MCRI wound up with nothing to show for their pandering � they lost by wide margins, while MCRI passed with 58 percent of the vote.

This is an old story. For years Republican political mavens from California to Texas to Florida have argued that initiatives like MCRI � although principled endeavors � hurt GOP candidates because they energize blacks and Hispanics to turnout at the polls in heavy numbers, causing Republican candidates to suffer. No one has heard this line of reasoning more often than Ward Connerly, the national leader of the effort to end racial preferences by citizen initiative. In every state that Connerly has attempted to organize an anti�racial preference referendum, local GOP leaders have publicly condemned his efforts as �divisive,� while privately telling him they agree with his goals.

Well, the Michigan MCRI vote provides us with a laboratory to test the Republican mavens� turnout theory. And guess what? Their political calculus was wrong. In fact, it backfired.

A Tale of Two Who Lost

The two most prominent Republican losers in Michigan were gubernatorial candidate Dick DeVos, who sought to unseat Jennifer Granholm, and Michael Bouchard, running to replace Debbie Stabenow in the U.S. Senate. Both DeVos and Bouchard, along with the leaders of the state Republican party, opposed MCRI. However, Republican Mike Cox, running for reelection as attorney general, was a vocal supporter, having thrown his support behind it nearly three years ago when the proposal was being organized. Cox beat his Democrat challenger with 54 percent of the vote, while DeVos and Bouchard lost by wide margins.

Of course, this is not to argue that if DeVos and Bouchard had backed MCRI they would have won. After all, Cox�s incumbency and popularity played a role in his reelection. But the big lesson for Republicans in the future is that Cox�s principled support for MCRI didn�t hurt his candidacy and probably helped overall.

Michigan-based research consultant Chet Zarko has just completed an insightful snapshot election analysis of a few jurisdictions that proves this last point. Zarko looked at voter turnout and election results in three counties: ultra-Democratic Wayne County; ultra-Republican Ottawa County; and Oakland County, a bell-weather swing-county. Zarko notes that turnout was up in all three counties � as it was throughout the state � but concludes that MCRI had nothing to do with it.

Comparing this election with the midterm election in 2002, raw voter turnout of was up 12.1 percent in Wayne; 23.9 percent in Ottawa; and 16.0 percent in Oakland. But it�s interesting to note how the top-of-the-ticket candidates � governor and senator, for example � performed in each county and compare that with voter support for MCRI. For Wayne County, support for top-of-the-ticket Democratic candidates rose from 67.8 percent in 2002 to 71.5 percent in 2006. In Ottawa County, GOP top-of-the-ticket percentages fell from 71.2 percent in 2002 to 65.1 percent in 2006. In Oakland County, the top-of-the-ticket GOP percentages fell from 48.3 percent in 2002 to 44.6 percent. Interestingly, though, the MCRI fared much better than most Republican candidates. In Wayne County, DeVos and Bouchard each lost by over 45 points each, while MCRI lost by only 18 points. In conservative Ottawa County, DeVos and Bouchard won with about 65 percent of all votes, while MCRI won with nearly 70 percent.

Oakland County provides the very best example to test the minority turnout theory of the GOP political elite. In Oakland�s heavily black township of Royal Oak, 33.3 percent of eligible voters voted in 2002, while 41.0 percent did in 2006 � an increase of nearly 8.0 percent, but significantly below the county�s overall increase of 16.0 percent. Even in the county�s more multi-racial city of Pontiac, where blacks and Hispanics are over 60 percent of the population, 2006 turnout was up less than five points. As Zarko points out, these percentages are contrary to the dominant pre-election theory that MCRI would only increase turnout in heavily Democratic areas with significant minority populations.

In 2008, Ward Connerly may turn his sights to more states, targeting Oregon, Nevada, Arizona, Utah, Missouri, or South Dakota. If he does, Republican candidates there should remember the lessons of Michigan � standing up for colorblind equal opportunity is not only the honorable and moral policy, it is also a help at the polls.

The Bush brothers usually see eye-to-eye on most policy issues except one: race-based affirmative action in school admissions. In 2003, President Bush�s administration submitted a muddled, politically correct, split-the-baby amicus brief to the U.S. Supreme Court in two affirmative-action admissions cases from the University of Michigan. His younger brother Jeb on the other hand, submitted a clear, factual, and legally principled one on behalf of the state of Florida. President Bush got it wrong; Governor Bush got it right.

It was a less than shining moment for the president. The Washington Post reported (on December 18, 2002) that then-Solicitor General Ted Olson was overruled by White House counsel Alberto Gonzales on how the Bush administration would handle the question of �diversity� as a constitutional issue. Olsen wanted to argue that the Constitution forbids racial preferences to achieve diversity on campus. Gonzales, however, insisted that the administration duck the constitutional question and say that the University of Michigan should have used race-neutral means to achieve diversity instead of preferences.

Remember what happened in those two Michigan cases? Justice Sandra Day O�Connor wrote a muddled, politically correct, split-the-baby opinion in which she endorsed the use of racial preferences in university admissions in order to ensure diversity, so long as the thumb on the admissions scales wasn�t too heavy. Conservatives were mightily upset–with the opinion and President Bush.

But just as the president redeemed himself with conservatives by nominating Samuel Alito to the high Court after the Harriet Miers disaster, he now has an opportunity to steer the Court in the direction his younger brother suggested in 2003. Here�s how: At issue before the Supreme Court now is the question of how much, if any, racial consideration should be given when determining which students are admitted to popular, yet oversubscribed, public secondary schools. In two cases–one from Seattle, Washington, and another from Louisville, Kentucky–the Court will resolve the question of whether the Constitution permits schools to use a student�s race, among other factors, as an admissions criterion in order to achieve racial diversity. In the Michigan cases, the Court ruled that diversity is so beneficial to the college educational experience of all students that the academic achievement bar for admissions can be lowered for certain racial and ethnic groups. Now the Court must determine if the same doctrine applies to secondary schools.

Amicus briefs to the Supreme Court in these new cases are due in a few weeks. If the Bush administration decides to submit one it should argue that the alleged benefits of diversity in K-12 schools are not the same as they may be in college or law school. It is one thing to assert that having blacks and Hispanics in a law-school discussion of police profiling is an educational benefit, while it is another altogether to assert the same for an eighth-grade geometry class. This administration should tell the Court that there is no compelling reason for K-12 schools to use race or ethnicity at all in student assignments–for diversity, racial balance, or any of the dubious benefits offered by education experts. If popular schools or magnet programs are oversubscribed, a school board should use a colorblind lottery system to determine which academically qualified applicants are accepted.

Yet, as fair and sensible as they may be, colorblind lotteries are not acceptable to the education bureaucracy. For them, extending the diversity rationale for racial preferences into K-12 grades is the ultimate goal in their long-running attempt to achieve strict racial proportionality in every facet of education.

The good news for America is that slowly, yet surely, our neighborhoods, schools, and workplaces have grown more racially integrated during the last twenty years. But �integration� is no longer the goal of the civil rights groups or the education bureaucracy. That was achieved long ago. Now it�s �diversity.� For them, diversity means racial proportionality, while integration means racial incorporation. It�s a distinction with a real difference. So diversity, in this respect, has become untethered from integration and has assumed a life of its own. For most of the education establishment, diversity is now integration�s rival.

It is entirely possible that the Supreme Court is troubled by the Pandora�s Box they opened with the Michigan cases in 2003 since one of the questions they accepted for review is whether to reverse its earlier opinion. After all, it is widely recognized that Justice O�Connor�s opinion that diversity is a compelling governmental interest that permits racial classifications and preferences is being strip-mined by colleges and universities in a variety of new and old ways. Now, this same diversity rationale is being used for hiring and promoting professors, awarding student fellowships and scholarships, and dormitory assignments. Roger Clegg of the Center for Equal Opportunity has asked, �What�s stopping government from evoking diversity to justify the makeup of juries or even for service on public boards?�

It�s a shame President Bush and the Supreme Court did not embrace the legal principles of Jeb Bush back in 2003 and assert that public institutions can only consider a person�s race in order to remedy prior racial discrimination. If the Bush administration decides to file a brief in these two new cases, let�s hope it won�t make the same mistake again. It should either make the principled argument that preferences to achieve diversity in K-12 grades is wrong and defend it courageously in public–or stay out completely. Just please don�t split the baby again.

The House voted yesterday 33-390 to renew the expiring provisions of the Voting Rights Act. The bill now heads to the Senate where it is expected to pass in its current form and land on the president�s desk sometime this summer. He�ll sign it, even though it means his native Texas will be subject to federally supervised penalties for another 25 years while neighboring states of Arkansas, Oklahoma, and New Mexico won�t.

No surprise here. The GOP leadership last year signaled they didn�t have the political guts to modernize the bill to fit conditions in 2006 instead of 1965 when it was first passed; plus, too many Republicans still love herding as many blacks and Hispanics into safe racial voting homelands as possible, thus furthering GOP prospects in the bleached out surrounding districts.

A handful of congressmen–Westmoreland (R., Ga.), Norwood (R., Ga.), King (R., Iowa), and Gohmert (R., Tex.)–led a principled effort to amend the bill so that it would actually have some relevance and purpose instead of being, among other things, little more than a racial gerrymandering tool to protect politicians from election competition. They failed, but went down fighting honorably.

They may get satisfaction in the end, however, when the Supreme Court finds the reauthorized bill to be unconstitutional. Of course, the Supreme Court has a way of humbling crystal-ball gazers like me, but for case anyway, the Court�s federalism case law on similar issues even has some prominent left-leaning law professors skeptical of its constitutionality.

Here�s why: The constitutionality of this bill ultimately depends on the need to subject some states and not others to Section 5 of the VRA, the �preclearance� provision. Section 5 requires all of nine states and parts of seven others to get permission from the U.S. attorney general or the D.C. district court to make any changes in election procedures like moving a polling place or redistricting voting districts. If Congress has verifiable data that governmental racial discrimination prevents minorities from fairly participating in the election process today, then many believe the reauthorized bill is likely constitutional.

So, what did Congress find during it long series of hearings exploring this issue? Well, other than a lot of heated, flowery rhetoric, no witness supporting reauthorization was able to produce any hard data or evidence showing minorities in these covered jurisdictions are denied participation in the election process. Instead, a massive study commissioned by the Project on Fair Representation at the American Enterprise Institute of each of the jurisdictions covered by Section 5 showed that, for the most part, minorities are actually better off in the covered jurisdictions than outside of them.

The AEI studies show that in covered states like Texas, Georgia, and North Carolina, for example, blacks and Hispanics register to vote and participate at the polls in numbers that often exceed those of whites; black and Hispanic candidates succeed or fail at rates comparable to white candidates of the same political party; and that blacks and Hispanics are represented in legislative bodies in percentages nearly identical to their percentages in the general population.

In any event, the absence of any data or hard evidence that Congress has in the record to justify the continuation of these penalties dooms the bill once it gets up to the Supreme Court. It simply isn�t 1965 anymore in the Deep South. But it may take the Supreme Court to tell that to Congress.

In 2004, 30.5 percent of Latinos were registered to vote, while 61.4 percent of whites were. However, citizen based data for Latino participation presents a more favorable picture of Latino voter progress in Arizona–in 2004, for example, 56.3 percent of the adult Latino citizens in Arizona registered compared with 57.9 percent of the Latino voting age citizens in the nation. This pattern is evident in turnout rates as well. In 2004, 47.06 percent of Arizona�s Latino citizens voted, while nationwide, 47.16 percent of Latinos did.

Latino legislative representation still lags the proportion Hispanic in the population for the state legislature, though the congressional delegation has achieved proportionality with two of eight congressmen from the state being Latino candidates of choice who are Latinos. In statewide election, Latino-preferred Anglo candidates are highly competitive, winning statewide office.

Introduction to the Studies

In anticipation of congressional hearings on the reauthorization of section 5 of the Voting Rights Act (VRA) in 2007, the Project on Fair Representation at the American Enterprise Institute, led by Visiting Fellow Edward Blum, commissioned two social scientists to gather data on the state of minority participation in the election process in the jurisdictions covered by the statute.

The authors of these studies, Ronald Keith Gaddie, Professor of Political Science at the University of Oklahoma and Charles Bullock III, Richard B. Russell Professor of Political Science at the University of Georgia, have produced extensive voting behavior scholarship in addition to acting as expert witnesses in dozens of voting rights cases throughout the country.

Section 5 of the VRA requires all of nine states and parts of seven others to seek permission–or, “preclearance”–from the United States Attorney General or from the United States District Court for the District of Columbia before any election practices or procedures can be changed. The states fully covered by section 5 are: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia. Also covered are various townships and counties in California, Florida, Michigan, New Hampshire, New York, North Carolina, and South Dakota.

The Bullock-Gaddie studies analyze all of the covered jurisdictions in the fully- and partially-covered states. For the purposes of comparison, Bullock and Gaddie also analyze the voting behavior of three states and one city not covered by section 5: Arkansas, Oklahoma, Tennessee, and the city of Milwaukee, Wisconsin. The studies examine a variety of election criteria, including:

1. Black and Hispanic voter registration rates.
2. Black and Hispanic election turnout rates.
3. Success and failure of black and Hispanic candidates.
4. White cross-over support for minority candidates.
5. Racial polarization levels using three different methodologies.

Although the trends in minority election criteria vary from state to state, the data makes quite clear that (a) there is no crisis in minority voting rights in 2006 compared to what there was in 1965 when the act was passed or in subsequent years when additional jurisdictions were added; and (b) there is no quantifiable difference in the voting rights exercised by minorities in covered jurisdictions than in non-covered jurisdictions. Moreover, many of the minority electoral criteria we studied indicate that the covered jurisdictions often afford greater opportunity to blacks and Hispanics than many jurisdictions not covered by Section 5.

The effort at black voter mobilization has been translated into significant gains in terms of descriptive representation through officeholding. Dramatic gains are evident at every level of office, from school boards and city and county offices, though those gains often came in areas with predominantly black populations. Black state legislators are elected nearly in proportion to the eligible electorate, and black legislators have also held positions of power and influence within the state legislature. Black votes are necessary, but insufficient, to elect Democratic statewide officeholders. Efforts to elect black statewide officeholders have been few and generally unsuccessful, but this is consistent with the pattern of failure of a variety of white Democrats who also sought statewide office. Black candidate performance for statewide contests seems to be a function more of office and party than of race. Democrats in general are losing.

Here’s an amendment that should be a part of any version of the bill: Affirmative action on the basis of race, color, or national origin should not be available to any temporary worker–or any recent immigrant, for that matter. In other words, immigrants shouldn’t be given a preference in school admissions, public contracting, and employment on the basis of skin color or ethnicity.

After all, someone who has recently entered the country can hardly claim a right to favored treatment to make up for “historical discrimination” against him by American employers or any unit of government. He just got here.

Yet, amazingly, many recent immigrants are benefiting from our bizarre system of racial and ethnic preferences. Employment preferences present an obvious problem. A recent immigrant (or even a temporary worker) may also benefit when bidding for government contracts for which preferences are frequently awarded on the basis of race and ethnicity. Likewise, he–or a member of his family–might apply to enroll at a university where ethnic preferences are frequently awarded.

The profusion of such preferences is no far-fetched concern. The bean counters at corporations and universities–to say nothing of those in the government–use racial and ethnic preferences extensively, and make no effort to distinguish between new arrivals to this country and those who have been here for generations. Indeed, experience shows that universities are more likely to lower standards for more recent arrivals. At the University of Michigan law school a few years ago, for example, Cuban applicants were treated as “whites,” and therefore were not only ineligible for racial preferences but discriminated against, while those of Mexican ancestry were treated in just the opposite way.

It makes perfect sense that no legal or illegal immigrant–including any of the newly proposed “temporary workers,” their families, and their children–should be eligible for any form of racial or ethnic affirmative action. Unless this ban is a part of the bill the president signs, millions more people will qualify for preferences in education, contracting, and employment simply because of their national origin. It is not too much to expect any new immigrant to our country to compete for jobs, schooling, and contracts on his own qualifications and efforts, rather than skin color or national origin.

We admit we don’t like racial and ethnic preferences for anyone–recent immigrant or not. We suspect many recent immigrants, as well as those already here, would agree that banning affirmative action for them is perfectly legitimate. Polls indicate fewer and fewer Americans believe preferences are fair.

As immigration levels increase and America becomes an increasingly multi-racial and multi-ethnic country, the division of citizens into favored and unfavored groups becomes more polarizing and untenable. Banning preferences from any immigration-reform bill would send the message to all Americans that there needs to be less emphasis on the superficial characteristics of skin color and ancestry that separate us from one another, and more on the common qualities of character that unite us.

If Congress thinks it is unfair to single out immigrants as ineligible for racial and ethnic preferences, but cannot justify the unjustifiable use of preferences for such recent arrivals, there is an obvious solution: Ban preferences on the basis of skin color and race for anyone here, whether they came over on the Mayflower or last week. That would be the best solution.

he 1970 Voting Rights Act made three counties of New York–Bronx, Kings (Brooklyn), and New York (Manhattan)–subject to the preclearance provisions of Section 5. Two of the counties (Bronx and Kings) also tripped the minority language trigger included in the 1975 Act.

Over the last quarter century, Latino registration and participation in New York state has generally tracked with the national trends for Latinos. In contrast, black registration and turnout has compared unfavorably with that in the rest of the nation.

African Americans have substantially increased the share of public offices that they hold since the three boroughs came under the coverage of Section 5. Latino officeholders remain far fewer in number than blacks and Latinos have enjoyed little growth in their numbers of officeholders and have even gone backwards in school board representation. Greater numbers of Blacks and Latinos have joined New York City�s congressional and state legislative delegations. Minorities hold most of the three covered boroughs New York city council seats.

Exit polls conducted among New York City voters reveal that white, black, and Latino voters generally support Democrats in national and statewide elections. In exit polls for mayoral elections, Anglos opposed minority voters in the past but since the late 1990s black and Hispanic voters have cast a sizeable minority of their votes–over 40% — for white, Republican mayoral candidates. Ecological regression estimates for Bronx, Kings, and New York Counties show that only in Bronx County do white and minority preferences different.

Just when you thought Republicans in Congress couldn�t dump on conservative principles any more than they already have, along comes the next show stopper. Judiciary Committee leaders in both chambers will introduce legislation today to reauthorize the expiring penalty provisions of the 1965 Voting Rights Act (VRA). Not happy with the revulsion resulting from last year�s Bridge to Nowhere, the heirs of Ronald Reagan are poised to renew until 2031 a bill that will fortify racial gerrymandering throughout the nation.

On August 6, 2007, after more than 40 years of going hat-in-hand to the federal government for permission to change any voting practice, the Deep South states along with Texas, Arizona, and Alaska are scheduled to be dropped from Section 5 of the Voting Rights Act. This section–also know as the �preclearance� provision–requires nine states in their entirety and parts of seven others to get permission from the U.S. Attorney General or the D.C. federal courts before changes can be made in voting procedures–for example, before a polling place can be moved or a redistricting plan implemented. When the VRA was passed in 1965, this provision made sense–after all, the Jim Crow South had perfected ways of keeping blacks from the polls. Preclearance ended that. Nevertheless, Congress recognized that Section 5�s penalty provision was an unusual intrusion into areas constitutionally reserved for the states, and so it designed the provision to expire after five years. It�s still in effect today, however, after congressional extensions in 1970, 1975, and 1982.

Unlike Section 5, the most important provisions of the Voting Rights Act are permanent, such as the ban on literacy tests and grandfather clauses. Once these barriers were eliminated in the South, black voter-registration soared. Today, blacks and Hispanics are full and equal participants in the electoral process in the states covered by section 5. In fact, recent studies conducted for the American Enterprise Institute indicate that the electoral position of African-Americans and Hispanics is better in covered states like Georgia and Texas, than in non-covered ones like Arkansas, Wisconsin, and Tennessee. The old roadblocks to minority voting in Section 5 states are gone. Forever.

Yet, apart from a few courageous members of Congress, the Republican congressional leadership, cheered on by the Bush Administration, is hell-bent on keeping this system in place. Why? Two reasons: First, Republicans don�t want to be branded as hostile to minorities, especially just months from an election. After all, every American knows how important the VRA was in securing voting rights for Southern blacks. And even though only Section 5 is up for reauthorization, Democrats will claim Republicans want to �turn back the clock� if they voice any doubts. Who wants to rebut that charge?

The second reason is that Republicans as well as Democrats have grown to love the racial gerrymandering Section 5 promotes. Since Republicans control the redistricting process in most of the states covered by Section 5 (in fact, every whole state covered was as red as can be in 2004), during the next round of redistricting GOP state legislators will argue that Section 5 requires them to draw ultra-safe, minority-packed congressional districts. This bug-splat-like racial gerrymandering has the effect of bleaching the surrounding districts of reliable Democratic voters, creating numerous safe Republican districts. What greater distain for the bedrock principle of colorblind equal rights can there be? Congressmen are supposed to represent individuals in a geographically-defined community of interest–not of skin color or ancestry. To make matters worse, these segregated racial homelands have been encouraged by judges who have made a complete mess of the Voting Rights Act case law.

Over the last few years, the Supreme Court has tried to clear up some of the confusion it previously created over how states must draw districts in order to comply with Section 5. One case in particular, Georgia v. Ashcroft, gave state legislatures more leeway in unpacking minorities from ultra-safe minority districts. The Court noted in a 5-4 decision that minorities� interests may be better served if they aren�t stuffed into one district, creating a majority of minorities, but instead spread into surrounding districts where they may have greater influence in election contests. The conservatives on the court–Justices Rehnquist, Scalia, Thomas, and Kennedy–joined the majority opinion written by Justice O�Connor by noting that �the Voting Rights Act, as properly interpreted, should encourage the transition to a society where race no longer matters.�

So what does the Republican Congress plan to do with this valuable legal doctrine? Well, they plan to overturn it by making compliance with Section 5 dependent upon the election of minority-preferred candidates. This will ensure heavily packed minority congressional districts that stifle competition, ideologically polarize elections, and insulate Republican representatives from minorities and minority representatives from Republicans.

In the end, Section 5 is not only unjust in that it singles out some states and ignores others when there is no longer any reason to do so; it is also unfair to voters–especially minority voters–because it promotes racial gerrymandering and racial segregation, which is just the opposite of the original goals of the Voting Rights Act.

President Bush has said he supports reauthorization of Section 5 and looks forward to working with Congress on it. Really, Mr. President, how can you support legislation that keeps Texas in the penalty box, but not neighboring New Mexico, Oklahoma, or Arkansas? Do you trust these other states to treat minority voters fairly, but not Texas? The same needs to be asked of every senator and congressman from the eight other Section 5 states.

Maybe a trip to the woodshed this November is the only thing that will get Republicans back on track. Like the saying goes, no matter how cynical you get in Washington, it�s impossible to keep up.

The state had a high degree of black voter participation in the early 1960s, but the advantage the state enjoyed over most of the rest of the South in black voter participation during the 1970s and 1980s have been lost. Tennessee ranks behind Mississippi and the median southern state among the seven originally subject to section 5 in terms of black voter participation. There is progress in the election of black officials, though the state Senate lags the state House in approaching proportionality for black representation. Most gains in black office holding since the 1980s have been in municipal government. Race structures vote choice under some circumstances. In both the most-heavily black urban county and the most-heavily black rural county, white voter preferences for Republicans up-ticket is pronounced. However incumbent Democrats do well among white voters especially when they have ties to the local community.

In the two most critical �voting assessment� categories–voter registration and election participation–blacks in the majority of section 5 states are more successful than blacks in Oklahoma.

From 1980 to 2004, black registration rates in Oklahoma trailed white registration rates. As a matter of comparison, black registration rates in Oklahoma are lower than in most of the states currently covered by section 5 of the Voting Rights Act. In 1980, black registration in the median section 5-covered states was 9.5 points higher than in Oklahoma. For the most recent presidential election, the disparity remained at 9.3 percentage points. In the other elections of the 21st Century, black registration in the median section 5-covered states was more than ten percentage points higher than in Oklahoma. Throughout the quarter century chronicled in this report, white voting participation rates in Oklahoma exceeded those of blacks. For the period 1980 to 2004, black turnout figures for the median section 5-covered states are higher than in Oklahoma in all but three election years. Minority office holding as a percentage of the population in Oklahoma has not reached levels seen in many of the states covered by section 5 of the Voting Rights Act.

In the two most critical �voting assessment� categories–voter registration and election participation–blacks in the majority of section 5 states are usually as successful and often, more successful, than blacks in Arkansas.

Currently, African-American voters in Arkansas are nearly as often registered as whites in Arkansas although they register at lower rates than do blacks in Section 5 states. African-American turnout typically trails that for white Arkansans, blacks in the non-South and, over the last decade, blacks in the section 5 South. Black office holding increased substantially over the last three decades and especially since 1993, but black legislative office holding has not increased appreciably in either chamber since the beginning of the 1990s. A brief flurry of black county office holding in the 1970s has been followed by the effective disappearance of blacks from county office for over 20 years. Black officeholders are not evident in congressional and statewide office, though Democrats continue to be highly competitive for the white vote, especially when running as incumbents.

By the beginning of the 21st century, proportionally more blacks than whites were registered to vote in Mississippi, and for two decades Mississippi blacks have registered to vote at higher rates than African-Americans outside the South. Until recently Mississippi whites voted at higher rates than blacks, though the difference between the races has largely been eliminated as of 1998. Mississippi blacks often turn out at rates higher than blacks in the rest of the country.

Mississippi has the highest proportion black population of the United States, though the state has fewer African Americans than in New York City. With approximately 900 officials, blacks hold more public office in the Magnolia State than elsewhere, and a black person is more likely to be represented by or to get to vote for a black officeholder in Mississippi than anywhere else in the US. Since 1987, an African-American has represented the majority-black Delta congressional district. Black representation is approaching proportionality in the state House of Representatives, though the black proportion in the state Senate still lags.

For statewide and congressional elections, voting divisions run along largely parallel partisan and racial lines. Frequently the divisions are in the neighborhood of 80-20 with blacks and Democrats facing off against whites and Republicans. These divisions are affected by incumbency more so than a candidate�s race, and reflect the wholesale movement of the respective races into separate parties, and an increasing tendency to vote those party preferences up and down the ticket.

By every measurement, the Voting Rights Act has accomplished what it was designed to do in this state. Within two years of its implementation, black voter registration rates in Mississippi soared to nearly 60 percent, up from less than 7 percent prior to the act�s passage.

Sizeable progress has been achieved in North Carolina voting rights. Although minority representation has not quite achieved full proportionality, it is very close. The 2004 Census Bureau estimates show African Americans comprising 20.5 percent of the state�s voting age population. Blacks currently hold 15.3 percent of the seats in the legislature.

Black voters are more likely to vote in North Carolina than in the non-southern states, but North Carolina black voters register and turnout at lower rates that North Carolina whites. The disparity between black and white voter participation has declined dramatically over the past two decades, as the two races are now less than 3 points apart on rates of participation.

Black voters have been able to elect candidates of choice to the legislature and the US House, and have continued to do so with the departure of incumbents from districts with lower black voter percentages than in the early 1990s. The success of Reps. Ballance and Butterfield in succeeding Rep. Clayton from the low country 1st congressional district is representative of this ability.

The old disparity in black and white registration rates in North Carolina has been substantially reduced and, in fact, was eliminated in the 2004 election with blacks reporting higher rates of registration than whites. Additionally, in 2004, the Census Bureau estimates that black voter participation at the polls was 63.1 percent while it was only 58.1 percent for whites. Black voter participation rates in North Carolina are sometimes exceeding black voter participation rates outside of the South.

By 2000, North Carolina had approximately 500 African America officeholders, up from only 40 in 1969. A high-profile African American, Harvey Gantt, has twice won the Democratic nomination for the U.S. Senate, once beating Michael Easley (a white who later became the state�s governor) with 57 percent of the primary vote. Even though Gantt lost both bids for the Senate, his performance was on par with that of other white Democrats who had challenged the incumbent, Jesse Helms.

Between the two Gantt defeats was a statewide victory for an African American. In 1992, Ralph Campbell won the Democratic nomination for state auditor and then went on to win in the general election. Four years later, Campbell won a second term in this constitutional office. Campbell won reelection in 1996 when he competed on the same ballot with Harvey Gantt. Campbell ran four percentage points ahead of Gantt and won office, while Gantt lost once again. Campbell won a third term in 2000 but failed in his bid for a fourth term in 2004.

California is only partially subject to the preclearance requirement of Section 5 of the Voting Rights Act. Two counties, Monterey and Yuba, became subject to preclearance following the adoption of the 1970 amendments to the legislation. This first extension of the original Voting Rights Act introduced a second trigger which covered two California counties because they had a test or device as a prerequisite to voting and fewer than half of the voting age citizens had either registered or turned out to vote in the 1968 presidential election.

The 1975 extension of the Voting Rights Act included a third trigger mechanism and this caught three California counties, one of which, Yuba, was already subject as a result of the 1970 extension of the legislation. The 1975 standards broadened the definition of a test or device as a prerequisite to voting to include the availability of election materials in languages other than English. Kings, Merced and Yuba counties came under the provisions of the 1975 act because more than five percent of their voting-age citizens belonged to a single language minority group as of November 1, 1972.

Minority success at the polls has grown steadily since 1972. The four covered counties are represented by four state senate and five state assembly districts. Yuba County is wholly contained in state Senate District 2 (12 percent Hispanic population) and Assembly District 3 (8.4 percent Hispanic population, 4.7 percent Hispanic registration) neither of which elects Hispanic legislators. Merced County is wholly in Senate District 12 (49 percent Hispanic–the district also takes in part of Monterey County) and Assembly district 17 (39.4 percent Hispanic population, 27.11 percent Hispanic registration); neither of which elect Latino representatives. Kings County is entirely within Senate District 16 (63.2 percent Hispanic) represented by Dean Florez, and Assembly District 30 (55.7 percent Hispanic population, 39.9 percent Hispanic registration) which elects Nicole Parra. Monterey County is divided between two Senate districts: 12, noted above, and 15, which is 24.4 percent Hispanic by population and elects a Latino Republican, Abel Maldonado. Monterey is also part of two Assembly districts. Assembly District 27 (15.6 percent Hispanic population, 8.4 percent Hispanic registration) elects an Anglo while District 28 (54.1 percent Hispanic population, 37.7 percent Hispanic registration) elects Simon Salinas. Two of four Section 5 counties are currently in districts that send Latinos to the state Senate and Assembly.

Alaska, Michigan, New Hampshire, and South Dakota exhibit different levels of progress in Voting Rights. Voter participation in the covered jurisdictions continues to lag for minority voters compared to Anglo whites, but there is contextual evidence of greater Native than white participation in Alaska, and of greater black than white voter participation in Buena Vista Township, Michigan.

There is little evidence of legally significant, racially-polarized voting in Alaska, and Native Alaskans make up over a quarter of all elected legislators (almost all elected Native legislators are candidates of choice). The overwhelmingly-white, covered townships of New Hampshire show lower rates of voter participation than the rest of the state, though a majority of voting age population participated in the covered New Hampshire townships in the 2000 general election. One New Hampshire township covered by Section 5 has no residents as of the 2000 census.

South Dakota shows the least progress of these four states, though the state is poised to attain Native American proportionality in the legislature. What progress has been accomplished on this front is more a product of efforts under section 2 of the Voting Rights Act than of the application of preclearance authority under section 5.

The past business wisdom of this hugely successful entrepreneur notwithstanding, if Johnson intends to target minority neighborhoods primarily, this venture is not likely to be a resounding success. That, ironically, would be welcome news for the country.

Why? Because blacks, and, to a lesser extent, Hispanics and Asians, are becoming indistinguishable from whites in their consumption of most goods and services. Black-oriented businesses such as insurance companies, clothing stores, and funeral homes may have been successful–and necessary–ventures in 1956, but they are increasingly obsolete in 2006. This is not to argue that some businesses aren’t correct in tailoring their marketing efforts to racial or language minorities, especially if their products are specifically used by blacks, Hispanics, or Asians. It would make little sense for Manishevitz Foods to target Asian consumers. But as ghettos and barrios continue to lose residents to multi-racial suburbs, and as inner-city neighborhoods are gentrified with young white professionals, the need for black-oriented businesses located in these communities is diminishing. Building a profitable “black-oriented” bank in communities that have limited access to banking facilities may be a big challenge for Johnson for many reasons, one of which is simply that his targeted customers are becoming more dispersed.

This is good news, not bad.

Moreover, does Johnson offer something unique to black banking customers because he too is black? It’s unlikely. Blacks want the same things from a bank as everyone else does: the lowest interest rates available when they borrow money and the highest rates available when they deposit money. It’s about that simple.

It is noteworthy that the number of women- and minority-owned banks has not been growing, according to a Minneapolis-based research institute. As of the middle of last year, there were 194 minority-owned banks, down slightly from the end of 2004. Since 1990 or so, the total has fluctuated between 180 and 200. On top of this, minority-owned banks tend to have lower returns on assets than the industry as a whole: 0.84 percent compared to 1.29 percent–a significant gap.

That Afro-centric banks are not as successful as anticipated tells us how far we have come as a nation in our race relations since the early days of the civil rights movement. Just fifty years ago, residential segregation in America was an incontrovertible way of life. Now, however, whatever residential segregation still exists in cities like Houston, Charlotte, and Miami is, for the most part, voluntary.

African-American CEOs lead Fortune 500 financial services companies like American Express and Merrill Lynch, yet no one thinks of these companies as black-oriented. Nor should they. There’s always room in America for another well-run business–that’s the genius of our system. But the days of businesses that cater to specific races may be coming to an end. Thank goodness.