A Modern-Day Grandfather Clause?


In this week’s issue of THE NEW YORKER, legal correspondent Jeffrey Toobin gives America a wakeup-call regarding the future of the Voting Rights Act of 1965. While we imagine the landmark legislation to be one of the pillars of civil rights-era racial advancement, it’s not a permanent fix to the problem of disenfranchisement in minority communities. Toobin previews a case to be decided in the upcoming Supreme Court term that will address the constitutionality of a provision that requires certain jurisdictions to check with the Justice Department before changing around their voting practices. The law in question, Section 5 of the Act, was intended to prevent the kind of Poll-Taxing and Grandfather Clause-ing that kept blacks from voting freely and fairly for decades. But now, plaintiffs claim that Barack Obama’s “post-racial” America means these jurisdictions (overrepresented in the south) should be let off the hook.

Not so fast:

"Obama received forty-seven per cent of the white vote in states that are not covered under Section 5 but won only twenty-six per cent of the white vote in covered states. 'Barack Obama actually did worse among whites than John Kerry in several of the covered jurisdictions, despite the nationwide Democratic swing,' Persily writes. Race seems like the best explanation for this difference. The fact that other African-American candidates have failed so often and for so long with white voters in the South indicates that no one should be in a hurry to declare the United States a 'post-racial' society.

What recent electoral history shows is that voting requires broader, not narrower, protection. In many parts of the country, the voting rights of poor and minority citizens are treated with not so benign neglect."


Republican political leadership has continually been interested in limiting voter access in the name of upholding voter legitimacy. But Toobin seems to have the better argument here. And, as we saw in campaign 2008 (and 2004, and 2000—definitely 2000) this real problem of disparate voting practices will compete, as a partisan talking point, with the mostly nonexistent problem of voter fraud—unless comprehensive reform gets underway. Toobin offers some concrete solutions at the level of jurisprudence; community groups that seek to raise awareness and lobby for better equipment and equal access also do their part (actor Charles Dutton, Professor Lani Gunier, and Rep. John Lewis all weigh in on this film about restoring voting rights).

If Dick Cheney can fight to the death for felon Scooter Libby’s re-enfranchisement, the American public can certainly stand up for more access to the most precious feature of our democracy.

Covers the White House and Washington for The Root. Follow her on Twitter.