Conservatives invoke Obama in Voting Rights Act challenge


The election of Barack Obama as president has been hailed as a crowning achievement of America’s civil rights movement, the triumph of a black candidate in a nation with a history of slavery and segregation.

But in a twist, Obama’s success has emerged as a central argument from conservatives who say his victory proves that some of the nation’s most protective civil rights laws can be erased from the books.

Conservative legal foundations and the Republican governor of Georgia, challenging key parts of the Voting Rights Act, filed briefs in the Supreme Court this month pointing to racial progress and a high black turnout in the fall election. They said Obama’s victory heralded the emergence of a colorblind society in which special legal safeguards for minorities are no longer required.


“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,” argued Texas lawyer Gregory S. Coleman, whose client, a utility board in Austin, is challenging parts of the law.

“The question now is, at what point do we as a society wipe the slate clean and accept that we are equals with equal rights, equal treatment and equal expectations, and special treatment shouldn’t be provided to anyone?” asked Shannon Goessling, director of the Southeastern Legal Foundation in Atlanta, which has fought affirmative action and other race preferences.

The Supreme Court sounded a similar note last week in limiting the reach of the Voting Rights Act. The law’s goal is “to hasten the waning of racism in American politics,” not “to entrench racial differences,” said Justice Anthony M. Kennedy.

That decision, in a North Carolina case, said that states and municipalities need not consider race when drawing voting districts, except in areas where blacks or Latinos form a majority.

The Texas case to be heard next month will decide whether certain states and localities, mostly in the South, must continue to obtain Justice Department approval before changing voting districts, polling locations or other election procedures. The requirement is viewed as something of a badge of dishonor in the South.

By invoking Obama, conservatives are in effect asking the justices to issue not only a legal decree about the fate of one law, but also to weigh in on emotionally charged questions about American society: Does the election of a black president mean that racism is no longer a factor in American politics? And are civil rights laws outdated in the age of Obama?

Conservatives said they planned to apply the Obama argument in the court of public opinion as well. It could play a role, for example, in potential ballot initiatives in 2010 in Arizona and Missouri seeking to roll back affirmative action laws.

“We will say, ‘How do you account for the election of Barack Obama?’ ” said Ward Connerly, a leading anti-affirmative-action activist. “If we can’t get rid of these laws now with Obama, I don’t know what yardstick we’re going to use.”

Civil rights advocates bristle at the assertion that Obama’s victory signals it is time to dismantle the Voting Rights Act and other laws.

“It’s an overly simplistic argument that doesn’t reflect the facts,” said Jon M. Greenbaum of the Lawyers’ Committee for Civil Rights Under Law.

He and others pointed to state-by-state voting data from 2008, presented to the Supreme Court, showing persistent racial polarization in the Deep South and elsewhere. In Alabama and Mississippi, for example, Obama won only about 1/10th of the white vote -- less than his party’s white nominee in 2004, Sen. John F. Kerry, who waged a far weaker campaign than Obama. Kerry won 19% of the white vote in Alabama and 14% in Mississippi.

The gap was even bigger in Louisiana, where Obama won 14% of the white vote, down from Kerry’s 24%.

“How can [conservatives] make this case, when the effete Massachusetts liberal with a rich foreign wife who loves windsurfing and spandex got more white votes in Mississippi -- in much less negative economic circumstances -- than a highly popular candidate who was as hot as can be?” asked David Bositis, an expert on racial voting patterns at the Joint Center for Political and Economic Studies.

Overall, Obama won just one in four white votes in the areas covered by Section 5 of the Voting Rights Act, which is the provision being challenged in the Texas case, while he took nearly half of the white vote nationally.

Kennedy, the swing vote in last week’s 5-4 ruling on voting districts, appeared to reject the symbolism of Obama’s victory. “Some commentators suggest that racially polarized voting is waning -- as evidenced by, for example, the election of minority candidates where a majority of voters are white,” he wrote.

“Still,” Kennedy continued, “racial discrimination and racially polarized voting are not ancient history. Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions.”

Even before Obama’s election, the high court, led by Chief Justice John G. Roberts Jr., had already signaled that it views some civil rights laws as outdated. Two years ago, Roberts spoke for a 5-4 majority in calling off voluntary school integration policies that relied on racial guidelines.

Next month, the court will take up a racially charged case from New Haven, Conn., that could revise the rules for workplace tests and promotions. White firefighters sued the city after it canceled the use of a civil service exam when the results showed that whites, but not blacks, would win promotions. The white firefighters say the court should rule that when a “merit selection” system is in place, race should play no role in who wins or loses.

The 15th Amendment, adopted after the Civil War, says the “right of citizens of the United States to vote shall not be denied . . . by any state on account of race.” Yet blacks were largely denied the right to vote in the South for another century. County registrars controlled the voter rolls, and they used various schemes, including literacy tests and poll taxes, to prevent blacks from registering.

In Dallas County, Ala., where Selma is located, only 156 of 15,000 black adults were registered to vote in 1961. Statewide, fewer than one in five black adults was registered to vote in Alabama in 1965, and the state Legislature was all white.

By those measures, the Voting Rights Act of 1965 has done its work. In 2006, 73% of eligible blacks were registered to vote in Alabama, about the same proportion as among whites. And African Americans held 25% of the seats in the state Legislature, the same percentage as the African American population in the state.

“Simply put, Alabama is under new management,” Gov. Bob Riley, a Republican, told the court in a brief arguing to roll back parts of the voting rights law.

In Georgia, exit polls showed Obama performing as well as Kerry did among white voters.

But that state’s Republican governor, Sonny Perdue, argued that Obama drew more support from voters overall than did Kerry or 2000 Democratic nominee Al Gore.

He told the Supreme Court it was nonsensical for the federal government to require special supervision of Georgia “when an African American candidate for president receives a greater percentage of the vote than his white predecessor candidates.”

Perdue also pointed to the political success in his state of other black candidates, including Georgia’s attorney general, Thurbert E. Baker.

But Baker, a Democrat, declined to file Perdue’s brief, which was then drafted by a private lawyer with ties to the state GOP.

Obama and his administration reject the conservatives’ arguments.

Atty. Gen. Eric H. Holder Jr., who is black, vowed in Selma last week to protect the voting rights law, which he said was “under attack.” White House spokesman Ben LaBolt said that even as Obama acknowledges “tremendous progress” since the Voting Rights Act was enacted, “he does not presume that his election or those advancements have wiped out the need for laws that protect the voting rights of all Americans.”

Federal oversight under the Voting Rights Act is most important in small towns and rural counties across the South, said Laughlin McDonald, director of the ACLU’s Voting Rights Project in Atlanta. The law requires changes in election districts and procedures to be cleared in advance by the Justice Department.

For example, some school boards and city councils sought to move to citywide elections when blacks held majorities in some voting districts. Because this switch would permit a white majority to prevent black candidates from winning any seats, the Justice Department could block it.

Congress voted in 2006 to extend the Voting Rights Act for 25 years. Nevertheless, the Supreme Court agreed to hear the appeal of the Texas challengers who say the law is no longer needed.

Asked what would happen if the provision was rolled back, Nathaniel Persily, a Columbia University law professor who compiled voter data in a court brief, said: “It’s like removing the police presence from what had been a high-crime area. You don’t know what would happen.”