Upon the Supreme Court's 2013 Shelby ruling that invalidated long-standing preclearance provisions of the Voting Rights Act, a number of states that had been subject to those provisions immediately began to impose new restrictions on voting and voter registration. Many believe these to have a disproportionate effect on African American voters, and thus many also and understandably believe these restrictions to be racially motivated. But what if it's not racism that generated opposition to the VRA and spurred the move toward the new, stricter requirements their backers say are aimed at reducing vote fraud? What if it instead is "naked partisanship"?
That's a possibility Randall Kennedy floats in his Harper's review (subscription) of Ari Berman's new book, Give Us the Ballot. After several pages spent on the history of voting rights since Reconstruction -- including the 1965 passage of the VRA and the political hostility toward it, as seen only in part by Richard Nixon and Ronald Reagan's expressed preference for not signing reauthorization -- Kennedy toward the end of the piece cites recent legal scholarship in reconsidering the significance of race in the Shelby decision and subsequent implementation of voting rights restrictions.
Samuel Issacharoff, for instance, writing in the Harvard Review, "compared Section 5 of the VRA to an aging athlete, 'one step too slow to carry the team.'" Its forced retirement may be a good thing, prompting voting rights advocates to to consider "new mechanisms to a new era" that should no longer focus on "'the historically central question of racial exclusion.... [T]he category of race increasingly fails to capture the primary motivation for what has become a battlefield in partisan wars.'" Similarly, Guy-Uriel E. Charles and Luis Fuentes Rohwer in the Yale Law Journal--though skeptical of the Shelby decision--"do not see the end of preclearance as the disaster" that some bemoan: "'[I]n the current era we cannot say without any amount of certainty that the central problem of voting is race.'" Kennedy himself comes down on this side: "The VRA has completed the main task it was designed to address. Societal changes have made inconceivable the recrudescence of wholesale, unambiguous racial disenfranchisement" (italics his).
The reaction to this of those alarmed by the spate of recorded deaths of African Americans at the hands of law enforcement; by the racially motivated attack on Charleston's Emanuel AME Church; and by the edgy resentment of those opposed to the removal of Confederate symbols from public spaces might be: Wouldn't it be pretty to think so? A return to unambiguous racial disenfranchisement may not seem so inconceivable in the midst of all of this. Then add in what this weekend's New York Times Magazine lengthy cover story characterizes as a five-decade effort by Republican activists at systematically dismantling the protections of the VRA: Is there anything so ambiguous about that campaign?
And yet: what if Kennedy is on to something?
He writes that with Shelby, the Supreme Court may have done "an inadvertent favor" to liberals, who might be better considering it an opportunity: "By sidelining a once-potent progressive device of declining efficacy, it might spur fresh activism and prompt new thinking about ways to advance democratic aspirations in an America in which race continues to matter, albeit in unprecedented ways." It's possible to continue to see racism as a factor in the partisanship driving implementation of new restrictions, he says, but it might be more useful to emphasize the partisanship instead, "and to persuade the public and the courts that manipulating the rules of electoral competition for partisan reasons should be deemed intolerable."
Racial motivation vs. partisanship might seem like a distinction without a difference when the result is the same: disenfranchisement of one racial category of voters. On the other hand, it's interesting to think about the construct in regard to other battlefields of the partisan wars. Climate change: ignorant rejection of settled science, or partisanship? Women's access to reproductive and prenatal healthcare: cold disregard for the circumstances of those in need, or partisanship? Cutbacks in funding for social service programs for poor and low-income Americans: Cruel, moralistic withholding of money, or partisanship? The argument for partisanship may be harder to make generally; I have to believe, for instance, that resurgent demands to cut funding to Planned Parenthood are motivated by more than political manuevering following release of video thought to implicate the organization in profiting from the sale of fetal tissue, even though that video was shared with certain Congressional Republicans before it went public .
Still, if it's partisanship that's the motivating force in one area, then why couldn't it be so in others? That voting rights might no longer be about racism could come as a relief to some, additionally freeing progressives to think about strategy the way Kennedy and others suggest. "Old poison, new battles," is how it's characterized. But if political endeavor has, on one battlefield or ten, officially been distilled to a zero-sum game of partisan advantage as exemplified by a well-executed attack on the VRA, it's important not to view that as good news either. Naked partisanship is also a potent poison.