Wednesday, April 15, 2009

Goldwater Institute Amicus brief challenging preclearance asks, "Are we there yet?"

Six years ago, a fractured Supreme Court upheld affirmative action with the forward-looking observation that all "race-conscious" policies must "have a termination point." Given the recent presidential election, it is only fair to ask: Are we there yet?

Supreme CourtAn amicus brief recently filed by the Goldwater Institute Scharf-Norton Center for Constitutional Litigation urges the Court to answer "yes" when it decides Northwest Austin Municipal Utility District v. Holder.

The case challenges "preclearance" under the Voting Rights Act. Preclearance requires Arizona, and a handful of other states, to seek approval from the federal government in order to change voting laws. When it was enacted a half-century ago, the racist "Old South" was using voting laws, such as the literacy test, to diminish minority political representation. The thinking was that by allowing the federal government to sign off on all voting related laws, these issues would be eliminated. Thankfully, those days are behind us.

Preclearance has now backfired against the ideals of color-blind government. Under preclearance, it is safer for states to deliberately gear voting laws to promote the presumed political interests of minorities than to enact truly color-blind laws. As a result, preclearance causes states to embrace reverse racial gerrymandering--drawing oddly-shaped voting districts to pull minorities from some locations and pack them into others--in order to maximize the electoral chances of minority representatives. Preclearance thus encases politics in the very divisions it was designed to prevent.

The progress that ushered us into the 21st Century demands an end to such state racialism. Preclearance denies the promise of color-blind government and it must be struck down as incompatible with the principle of equality under the law.
Nick Dranias holds the Goldwater Institute Clarence J. and Katherine P. Duncan chair for constitutional government and is the director of the Institute's Dorothy D. and Joseph A. Moller Center for Constitutional Government.

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