IN 1965, THE Congress declared South Carolina guilty until proven innocent. In order to change any of our election laws, even something so minor as calling a special election, we would have to prove to the Justice Department that the change would not make it more difficult for black people to vote, or to elect the representatives they prefer.
This was a stark departure from the principles in our Constitution — being akin to telling an individual that he can’t leave his house until he proves that he won’t commit any crimes while he’s out. Moreover, the presumption of guilt applied to only six states (later expanded to nine), and as such it assaulted the fundamental principle that all states, like people, must be treated equally.
But these provisions were, as the Supreme Court recalled on Tuesday when it effectively dismantled them, “extraordinary measures to address an extraordinary problem.” At the time, they were justified. They were justified for many years afterwards. After having been forced at gunpoint to stop enslaving them, South Carolina and the other states of the old Confederacy had spent a century devising ways to deny African-Americans the right to vote, and at this they had been quite successful.
But for all the good that has resulted from the requirement that the Justice Department “preclear” election changes — and the good has been tremendous, from enfranchising black people and making it possible for black candidates to be elected, up to and including forcing our state to make reasonable modifications last year to the voter ID law that included some too-burdensome provisions — it also has done great harm. It traded an overt form of discrimination for a more insidious evil — one that gave birth to the bitter political polarization that is crippling our civic life.
The Voting Rights Act requires states to draw election districts where black voters have an opportunity to elect candidates of their choice, rather than having their votes always drowned out by the white voters who were either naturally or artificially drawn into the majority. Unfortunately, rather than helping us to gradually move beyond race, these new race-based districts taught us to believe that black people must be represented by black officials and white people by white officials. And that taught those elected officials that they represent only those people of their own race.
The Reagan Administration’s Justice Department put this policy on steroids, pushing South Carolina and other Southern states to institute “black-max” policies — to maximize the number of black-majority districts, even if it meant violating traditional districting principles by, for example, connecting populations by way of “point contiguity” — where sections of a district meet only at a point, say an intersection — and creating crooked tendrils that reach into cities to pair black urban voters with black rural voters nearby, or far away.
Packing black voters into black-majority districts simultaneously purges them from the surrounding districts, creating lily-white districts that, at least in the South, reliably elect Republicans. Indeed, a black-max districting plan passed in 1994 by black Democrats and white Republicans over the objections of white Democrats is what gave Republicans control of the S.C. House for the first time since Reconstruction.
As electoral districts became more reliably Republican and reliably Democratic, our elections increasingly have been decided in the primaries. So we get increasingly left-wing black Democrats and (far more) increasingly right-wing white Republicans, who know they have to satisfy the extreme voters who demand ideological purity above pragmatism.
Would this have happened if the Justice Department had not been empowered to dictate state election policy through preclearance? Probably. In some places. And some courts might have allowed it. But it wouldn’t have been allowed, required even, across the entire South. Indeed, the Supreme Court eventually invalidated the black-max policies — after the damage was done to our politics.
It remains to be seen what Tuesday’s ruling dismantling the preclearance requirement will mean in South Carolina. I fear it will embolden our Legislature to pass laws it wouldn’t have dared try to pass before.
But the fact that you no longer have to prove your innocence doesn’t mean you don’t have to obey the law. The fact that you can leave your house without first convincing Washington officials that you’re not going to knock off a liquor store doesn’t mean you can knock off a liquor store. It means you have the same opportunity to break the law that everyone else does. And if you do break the law, you’ll be punished.
That’s what our legislators need to keep in mind as they contemplate whether to make our voter ID law more restrictive or reduce absentee voting opportunities or scale back the number of voting precincts in black communities or draw districts that somehow (if this is even possible) pack even more black voters into those black-majority districts, thus creating even more lily-white districts.
They can do that now, and individuals or the Justice Department can take our state to court, where we remain subject to the same ban on racially discriminatory voting laws that the other 41 states always have been subject to.
Ms. Scoppe can be reached at email@example.com. or at (803) 771-8571. Follow her on Twitter @CindiScoppe.