I have written before, such as here, that
just as Republicans waved the “bloody shirt” for a generation after the Civil War in an attempt to keep the Democrats branded as the party of slaveholders and rebellion, it is a staple of liberal and Democratic argument today to refer almost continuously to the Nixon/Reagan “Southern Strategy” in an attempt to reinforce black, liberal, and independent rejection of current Republicans.
That tactic has been especially prominent in modern the modern debates over renewing Section 5 of the Voting Rights Act, as noted, in The “Bloody Shirt” Still Waves …, when that provision was up for renewal in 2006:
For a generation after the Civil War northern Republicans “waved the bloody shirt” to remind voters that the Democrats were all disloyal sympathizers with the South. The modern equivalent is for northern liberals, now Democrats, to accuse all Republicans of being sympathizers with the South, and thus racist. A perfect example is this column, “Bigotry Beneath the Fog,” by Eugene Robinson of the Washington Post.
It begins:
Once in a while the fog machine that’s kept on “high” around here to obscure everyone’s real intentions breaks down. There’s always a mad rush to crank it up again, but for the briefest moment we can see our elected representatives for what they really are, not what they pretend to be. Wednesday we had one of those rare high-definition moments, when the House Republican caucus defied its leaders and refused to back renewal of the Voting Rights Act.
That tells you about all you need to know, doesn’t it?
“Well, no,” I noted, it doesn’t.
If you’re Eugene Robinson, or one of the many who see a racist every time they look at a conservative, the recent detour on the road to re-authorizing parts of the Voting Rights Act didn’t tell you anything you didn’t already know.
If, on the other hand, you’re one of those, like me, who believes that the nature and role of race in our politics is fundamentally different in 2006 from what it was in 1965, when the VRA was passed, you are willing to look beneath the racial fog that Robinson et. al. generate and consider whether the “temporary” provisions of the VRA are still needed.
I noted in my recent post on the oral argument over Section 5 at the Supreme Court yesterday, the 16 “covered” jurisdictions are mainly, but not exclusively, in the South, and even there in some states only certain counties are “covered. As Roger Clegg asked during the 2006 debate over reauthorization (a question I quoted here),
why, in 2006, are Texas and Arizona covered, while New Mexico, Oklahoma, and Arkansas are not? Why some counties in Florida and North Carolina, and not others? Why some boroughs in New York City, and not others? Why Alaska?
If the covered jurisdictions looked in 1965 like they look now, no one then would have given any consideration to a bill like Section 5. And yet many in Congress appear to think they can renew Section 5 in perpetuity.
And today, just as in 2006, any suggestion that the “covered” jurisdictions have changed drastically since 1965 brings forth a frenetic renewed waving of the “bloody shirt,” the argument that the South (and the South, pretty much, alone) is tainted by what amounts to a racial original sin that will never be cured and that will always need federal supervision.
A perfect example of this (so perfect you may think I’m making it up, but I’m not) example of this new “bloody shirt” waving can be found in these comments yesterday, on an election law mailing list, by University of Michigan law professor Ellen Katz, a prominent Section 5 supporter:
The Justices today repeatedly asked for comparative data showing that covered jurisdictions are worse than non-covered ones. They seemed troubled by their sense that minority voters fare no better in Ohio than in Texas.
The comparison they seek, however, is problematic. It’s like comparing a patient being treated with lipitor for high cholesterol with a healthy person. The two might look the same, but that doesn’t mean they are. The relevant question is what happens when you take the patient off the drug.
The 16 (mainly) Southern jurisdictions, that is, suffer from congenital racism, and will continue to suffer from it down the echoing corridors of time. Thus they must never be taken off the forced regimen of federal medication.
And what of the conservative Justices’ concern that nowadays the “covered” jurisdictions are no worse than the uncovered ones, “that minority voters fare no better in Ohio than in Texas”? Katz has a breathtakingly audacious response: the fact that they are now all about the same actually proves the continuing need for Section 5 pre-clearance! Really.
For Katz et. al., to repeat, “[t]he relevant question is what happens when you take the patient off the drug.”
Here, the Chief Justice seemed to be convinced that the answer is nothing. Hence his elephant whistle example. I don’t see any elephants now, and I don’t really think I’m going to see any when I stop blowing this whistle. Maybe that’s right. But then again, we had a lot of elephants around when the statute was enacted, and there’s certainly evidence they are in the vicinity. The question is whether they are coming back.
If Section 5 is truly superfluous, minority voters should confront fewer obstacles to political participation in places where additional federal safeguards protect minority interests than in places where these safeguards do not operate. That is, if all else is equal, things should be easier for minority voters in covered jurisdictions than non-covered ones.
This argument reminds me of carrots. My mother always told me to eat lots of carrots, otherwise I’d grow up to be nearsighted. I ate tons of carrots … and still grew up to be nearsighted. In later years when I suggested that my experience had disproved her silly medical theory, she always replied, “Yes, but just think how much more nearsighted you’d be if you hadn’t eaten all those carrots!”
If you listen to the liberals, it’ll be carrots now and carrots forever.
