Decades after passage of the historic Voting Rights Act, so much has changed. And yet, so much remains the same.
Racial minorities are registering to vote and turning out at the ballot box in record numbers. However, they remain under-represented in local elected positions and virtually excluded from national and state political office. Latinos, for example, are the largest racial minority in the U.S. at approximately 17% of the population, but only 3.3% of elected offices are held by Latinos. In states that until recently were covered by the Voting Rights Act (VRA), such as Texas, Alabama, Mississippi, and Louisiana, 11 %, 25%, 30%, and 18% of elected positions are held by African Americans, respectively. Meanwhile, the proportion of African Americans in the state populations is higher at 12.3% in Texas, 26.5%, in Alabama, 37.4% in Mississippi, and 32.4% in Louisiana thereby evincing that racial diversity in elected offices does not represent the population at large.
African Americans are also graduating from college at historically higher rates at 21% in 2012 compared to 4% in 1964. And yet, the socio-economic disparities between blacks and whites are alarmingly stagnant when compared to the 1960s when the VRA was passed. Black workers earn on average half as much as their similarly situated white counterparts. The average wealth of a black family is one sixth that of a white family. Seventy-seven percent of those living in poverty in the United States are racial minorities compared to 22.6% are whites. And 54% of the prison population is non-white even though they comprise only 37% of the total US population. While some Americans may still harbor racially-biased explanations for such disparities ranging from inferior abilities, laziness, to genetic propensities to violence; open expressions of such biases have become more taboo now than fifty years ago. As explicit forms of racism are normatively and legally rejected, they are replaced with more stealth and subtle expressions of underlying racial prejudices.
Negative stereotypes of racial minorities as lazy, ungrateful, incompetent, violent, dishonest, or inassimilable infiltrate decision making processes in schools, workplaces, media, and politics. Collectively, this produces institutional racism that keeps many racial minorities in perpetual poverty under pretextual basis. The social problems that arise from poverty serve to reinforce the negative stereotypes, which in turn perpetuate the socio-economic racial disparities. And thus the cycle continues, leaving racial minorities as a group still noticeably worse off than their white counterparts nearly fifty years after the passage of the VRA.
One cause of this phenomenon is electoral disenfranchisement arising from modern-day tactics and mechanisms intended to keep certain races politically marginalized. For if racial minorities have meaningful access to the ballot box such that they are collectively able to select those elected to office, then they may impose changes to the laws, policies, and practices that produce systemic racial disparities in wealth, education, employment opportunities, and a host of other contexts. Fully cognizant of the relationship between political empowerment and material disparities among races, the drafters of the VRA sought to leverage the power of the federal government to level the electoral playing field at the local and state level. Furthermore, the VRA was not merely about protecting the mechanics of voting, but rather an acknowledgement that certain privileged groups, i.e., powerful whites, would continue to attempt to disempower other groups, particularly blacks during the 1960s, through various techniques that would evolve with time and changing circumstances.
Notwithstanding significant progress made in decreasing overt discrimination, discriminatory tactics aimed at disempowering minority voters continue to plague the American electoral process. From unnecessarily stringent voter identification laws, limits to early voting, and limits to same day registration, to redrawing legislative districts for purposes of segregating races; the problems the VRA originally aimed to address are still pertinent today. While the explanations provided for adopting such practices may appear race-neutral, the underlying objectives are far from it. Predominantly white decision makers are rewriting election rules to dilute the votes of racial minorities. As a consequence, minority voters are unable to collectively elect representatives whom they can hold accountable if they fail to incorporate minority communities' needs into the political agenda.
Because the meaningful right to vote lies at the heart of a representative democracy, the procedures that govern voting directly contribute to whether the consequent government and its laws are imbued with legitimacy. Should procedures advantage particular citizens over others in terms of their eligibility to vote, access to voting, and the weight of their votes, classes of citizens arise whose influence over their material and political lives differ dramatically. As such, inequities in voting processes degrade the value of citizenship. Different classes of citizens, wherein only some citizens are able to control the levers of power and set rules, produce strife and marginalize the relevance of citizenship. One's membership in the advantaged class matters more than one's citizenship status. In racially, ethnically, or religiously diverse societies, this is a recipe for balkanization, political instability, and violence.
Those disadvantaged by voting procedures are at risk of being denied access to various resources and excluded from changing society to alleviate such disparities. In turn, they are more likely to question the legitimacy and relevance of the voting process for resolving grievances in what they view as an unjust society. Extra-legal mechanisms become the only feasible means of seeking justice by those most disadvantaged by the social, economic, and political disparities within a society. And the less law is relevant to resolving societal disputes and disparities, the worse off the entire society becomes, including those privileged by the status quo.
Thus, when the VRA was passed in 1965, it was to secure to all in the polity equal citizenship status. The drafters of the VRA recognized that racial minorities in certain jurisdictions suffered substantially from socio-economic disparities that effectively hindered their ability to participate in the political process. Equality in the weight of one's vote was viewed as much a component of one's citizenship status as equal access to the ballot box. Because without equal access and equal weight, the high rates of poverty, unemployment, and diminished educational opportunities among racial minorities would remain a product of white political leaders that did not prioritize the needs and realities of minority communities. And a permanent underclass of citizens would persist, ultimately undermining the legitimacy of a purportedly democratic society comprised of citizens with equal rights.
In the end, the majority in Shelby v. Holder lost sight of the objective of the VRA. This historic law was not merely about preventing the most extreme levels or forms of discrimination, but rather having in place a regime that is preventative in nature so as to ensure discrimination continues to decrease and eliminates the possibility of returning to a period of systemic disenfranchisement. It served the existential need to equalize every citizen's ability to shape the rules governing her society through elections.
By dismantling a vital legal mechanism that propelled our nation towards achieving the cardinal democratic principle of equal citizenship for all Americans, the Shelby Court set our nation back.
This commentary is based on a larger essay The Blinding Color of Race: Democracy and Elections After Shelby forthcoming in the Berkeley Journal of African American Law and Policy available here.
Professor Aziz can be followed on Twitter @saharazizlaw