WASHINGTON (AP) – Has the nation lived down its history of racism and should the law become colorblind? Addressing two pivotal legal issues, one on affirmative action and a second on voting rights, a divided Supreme Court is poised to answer those questions.
In one case, the issue is whether race preferences in university admissions undermine equal opportunity more than they promote the benefits of racial diversity.
Just this past week, justices signaled their interest in scrutinizing affirmative action very intensely, expanding their review, as well, to a Michigan law passed by voters that bars “preferential treatment” to students based on race.
Separately, in a second case, the court must decide whether race relations – in the South, particularly – have improved to the point where federal laws protecting minority voting rights are no longer warranted.
The questions are apt as the United States closes in on a demographic tipping point, when nonwhites will become a majority of the nation’s population for the first time. That dramatic shift is expected to be reached within the next generation and how the Supreme Court rules could go a long way in determining what civil rights and equality mean in an America long divided by race.
The court’s five conservative justices seem ready to declare a new post-racial moment, pointing to increased levels of voter registration and turnout among blacks to show that the South has changed. Lower federal courts just in the past year had seen things differently, blunting voter ID laws and other election restrictions passed by GOP-controlled legislatures in South Carolina, Texas and Florida which they saw as discriminatory.
“Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes,” Justice Antonin Scalia said in oral arguments earlier this year, suggesting that it was the high court’s responsibility to overturn voting protections overwhelmingly passed by Congress in 2006.
Justice Ruth Bader Ginsburg, part of the court’s more liberal wing, countered that while conventional discriminatory tactics may have faded, new ones have emerged. “Congress said up front: We know that the (voter) registration is fine. That is no longer the problem. But the discrimination continues in other forms,” she said.
The legal meanings of “equality,” “racism” and “discrimination” have been in flux since at least 1883, when justices struck down a federal anti-discrimination law, calling it an unfair racial advantage for former black slaves. Today, justices face the
question of whether the nation has reached equality by a 1960s definition or some new standard.
By some demographic measures, America has reached a new era. But the latest census data and polling from The Associated Press also show race and class disparities that persist.
President Barack Obama, the nation’s first black chief executive, was re-elected in November despite a historically low percentage of white supporters. He was aided by a growing bloc of blacks, Hispanics, Asian-Americans and gays and a disproportionate share of women, who, together supported him by at least a 2-to-1 margin.
Another sign of shifting times: Among newborns, minorities outnumbered whites for the first time last year, the Census Bureau
reported. Still, issues linger by race, age and class in jobs and income, wealth, class and education and in discrimination.
Roderick Harrison, a demographer who is black, says he felt pride in Obama’s re-election, which to him reaffirmed a historic achievement not only for black Americans but also a broader coalition of racially diverse groups. Still, he worries that demographic change and Obama’s success may lead to a tipping point in the opposite direction, where people in the United States are led to assume racial equality has fully arrived.
The strength of minority support behind Obama was aided by the 1965 Voting Rights Act and other protections, he said.
The term “minority” often refers to an unequal or disadvantaged status and isn’t always about numbers or counts, said Harrison, a former chief of racial statistics at the Census Bureau.
The District of Columbia, Hawaii, California, New Mexico and Texas already have populations of racial and ethnic minorities that collectively add up to more than 50 percent. Across the U.S., more than 11 percent of counties have tipped to “majority-minority” status.
“Minority status is a matter of exclusion from full participation in society, remaining long after a nation becomes ‘majority minority,’” Harrison said.
Jim Crow laws
Has the country put its racist past behind it? That question is at the core of the challenge to the Voting Rights Act. The arguments before the court raised questions about whether new, more subtle forms of voting discrimination have taken the place of Jim Crow laws.
In 1870, the Constitution guaranteed blacks the right to vote. But for many decades afterward, whites in the post-slavery South used poll taxes and literacy tests to block African Americans from voting.
That changed in 1965 with enactment of the Voting Rights Act which let minorities file lawsuits against voter discrimination. Section 5 of that law went even further, requiring nine states, mostly in the South, and scores of counties and townships in seven other states, all with histories of disenfranchisement, to get federal approval before making any election change. Changes can include everything from a different poll location to a new political redistricting map.
The voting act was renewed by Congress in 2006 for another 25 years. The Justice Department and the federal courts last year used Section 5 to block voter restrictions in South Carolina, Texas and parts of Florida. That saved hundreds of thousands of votes that would otherwise have been lost in November, according to the Brennan Center for Justice.
Many were cast by blacks and Hispanics who turned out for Obama.
Lawyers for Shelby County, Alabama, which is challenging Section 5, say the tables have turned in a nation that is now much more racially diverse, with minority voters possibly holding an unfair advantage.
“You have a different constituency from the constituency you had in 1964,” attorney Bert Rein told the justices. “Senators who see that a very large group in the population has politically wedded themselves to Section 5 are not going to vote against it.”
Richard Hasen, a law professor at the University of California, Irvine, and author of Election Law Blog, says the “smart money” now is on the Supreme Court striking down Section 5, leading to consequences for minority voters such as “more brazen partisan gerrymanders, cutbacks in early voting and imposition of tougher voting and registration rules in the formerly covered jurisdictions.”
But if the court strikes down “a crown jewel of the civil rights movement,” he said, that could spark a public backlash that sends Congress back to the drawing board, with any resulting new law applying equally to all states.