Letter from America

LEADERS of the National Association for the Advancement of Coloured People, the National Urban League and other African-American advocacy groups met US President Barack Obama recently to discuss what they called the "black agenda" for his second term.

Among their concerns is the real possibility that the Supreme Court will decide next year that times have so changed that a central pillar of the 1965 Voting Rights Act (VRA) no longer passes constitutional muster.

The election, and re-election, of an African-American president might argue that the era of Jim Crow has well and truly gone with the wind.

But then again, as the great southern writer William Faulkner put it, "the past is never dead. It is not even past".

Under section 5 of the VRA as renewed in 2006, seven states of the old Confederacy, plus Alaska, Arizona and a plethora of counties and municipalities in other states, may not make any change to their electoral procedures without "pre-clearance" from the attorney-general or a special court in Washington until 2031.

The implicit assumption is that whatever changes they make will, intentionally or unintentionally, have a discriminatory effect on the chances of ethnic, racial and language minorities achieving the political representation of their choice. The burden on so-called "covered" jurisdictions is to convince Washington that this will not be the case. They must, in other words, prove a negative.

The sovereignty they would otherwise enjoy under the constitution is curtailed in most instances not as a result of anything they have done lately.

They are covered because in the presidential election of 1972 — which gave Richard Nixon a second term — less than half their voting-age populations were registered to vote or actually voted, suggesting the use of some prohibited "test" or "device" to keep minorities from the polls.

No one today respectably contends the VRA was not needed. The 14th and 15th amendments, adopted in 1870, guaranteed the voting rights of African-Americans and empowered Congress to enforce them.

For nearly a century, Congress failed to act while recalcitrants, mainly in the South, continued brutally to flout the constitution.

Nor would many doubt the VRA’s success. Between 1970 and 2001, the number of African-Americans holding elective office at all levels went from 1,469 to 9,061, a third of whom were elected in covered states.

Over time, the simple right to vote, which the act sought to protect, morphed into the right of minorities to be represented by members of their own race.

This encouraged the creation of voting districts in which minorities are the majority, with perverse results.

De facto segregation arguably reduced minority voter leverage with majority politicians and, by draining Democratic votes from what might otherwise be swing constituencies, may have helped Republicans maintain control of the House of Representatives this year even as their congressional candidates received fewer votes than the Democrats.

The Supreme Court tried to put a stop to racial gerrymandering, but Congress blocked it in the 2006 VRA renewal.

Now the court has agreed to hear, having earlier indicated sympathy for, a claim by Shelby County, Alabama, that section 5 is no longer constitutional since its application relies on outdated data.

Cheered on by other covered jurisdictions, the county argues that if you believe your voting rights are being abridged, you have no need of section 5. You are free to seek relief on your own behalf under section 2.

Should that not be sufficient this year ? Was it really fair for the federal government to pre-emptively coerce a presumptive rogues’ gallery of rights violators on the basis of what they did or did not do in 1972?

Quite fair, says attorney-general Eric Holder. Statistically, he argues in a rebuttal brief, voting rights violations are still more likely to occur in pre-clearance states — you have to keep your eyes on these recidivists. And there is unimpeachable evidence, he argues, of efforts in covered states such as South Carolina and Texas, to curb minority votes by imposing voter ID requirements and limiting early voting.

Jim Greer, chairman of the Florida Republican Party from 2006 to 2010, bears Mr Holder out. He recently confessed that the only reason the state’s Republican administration cut back on early voting was to reduce turnout of pro-Democrat African-Americans.

Conclusion? What was once about justice is now about power.

The Democrats have an interest in maintaining section 5 pre-clearance to prevent Republicans gaming the system to offset their demographic disadvantage.

The Republicans have an interest in removing the federal yoke that is stopping them gaming while the attorney-general is a Democrat.

• Barber is country manager for Brand South Africa. His column will resume in January.