Current Conditions

August 5, 2015
Guest Post

by Gene Nichol, Boyd Tinsley Distinguished Professor, University of North Carolina School of Law

*This post is part of ACSblog’s symposium regarding the 50th anniversary of the Voting Rights Act of 1965.

In gutting what, for so many, had been the central enforcement mechanism of the iconic Voting Rights Act, Chief Justice Roberts wrote, famously, in the Shelby case, “Things have changed in the South . . . dramatically.” The “[n]ation has made great strides.” The Congress, in his view, had “failed to speak to current conditions.” Near unanimous votes in the House and Senate, reauthorizing the Act, had failed to perceive our present exalted attainment. Roberts and his four always-perceptive colleagues knew better. Black voting rights are secure here in Dixie. Bless his heart.

Within hours of the announcement, Sen. Tom Apodaca, Republican Chairman of the Rules Committee in North Carolina, announced, correctly, that the floodgate had been opened. The already-ambitious voter suppression effort the General Assembly had been considering could, as a result, shoot for the stars. “Now we can go with the full bill,” he enthused. The “headache” of the Voting Rights Act was dispatched. The bill grew from 14 pages to 57. It added 48 new sections, running the gamut of innovative electoral constraint. The Brennan Center called it the “most restrictive since the Jim Crow era.” What Roberts said no longer occurs in the southland happened immediately, here and, of course, elsewhere. Perhaps the Chief Justice was surprised. I doubt it. Certainly no one in North Carolina was.

North Carolina is 22 percent African American. Both houses of our General Assembly have massive, veto-proof Republican majorities. When they retreat to their respective caucuses to discuss and, effectively, to enact the laws that govern us, no black member is present. There aren’t any. So, in the last four years, as the legislature has racially gerrymandered our electoral districts, repealed a crucial Racial Justice Act, ushered in harsh voter ID requirements, kicked 500,000 people off Medicaid, passed the largest cut to a state unemployment compensation program in American history, and abolished the state’s earned income tax credit, no black voice, yea or nay, was offered. A white governor and an all white cabinet round out the picture. North Carolina is run by a white government. It is 2015.

In this state, over twice as many African Americans (27 percent) live in poverty as whites (12 percent). 40 percent of black kids are poor. Two and a half times as many black Tar Heels are unemployed as whites. Three times as many African American home mortgages are underwater. Black households have 6 percent of the net worth of white households. Recent empirical studies show dramatic racial discrimination in hiring, housing and policing practices. The North Carolina Department of Correction reports a prison population of about 40,000. Nearly 60 percent of the inmates are black, though less than a quarter of our state population is. We incarcerate 357 whites and 1665 blacks per 100,000. I could go on. But if this doesn’t represent systemic racial subordination, the term must be without meaning. Our government, to repeat, is white.

It is jarring to realize that so central a lynchpin of the American democratic experiment as the Voting Rights Act can fall prey to the predispositions of five justices – especially five who so repeatedly refuse to take the notion of constitutional law seriously. To be lectured by the Chief Justice, who has spent the entirety of his career in service to the powerful and privileged, about the actual nature of political life in North Carolina is close to unbearable. As he, utterly without justification, rejects the findings and authorities of the United States Congress, it’s hard to know whether he speaks from ignorance or malice. In my old age, I’m never sure which is worse. Besides, an ignorance delivered with sufficient haughtiness carries its own malice, undisguised.