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Voting rights: Time for new thinking, not rehashed ideas

Kingsley Guy // Published June 28, 2009 in Sun Sentinel

The landmark Voting Rights Act of 1965 helped to end American apartheid and bring the entire nation into the 20th century. But now that we're well into the 21st century, it's legitimate to ask whether the legislation is needed, at least in its current form, to protect minority voting rights. That question is particularly pertinent since Americans in large numbers crossed racial lines last year to elect the nation's first African-American president. Clearly, the racial climate has changed in 44 years, for the better. 

Last week, the U.S. Supreme Court sidestepped the question of the continuing efficacy of Section 5 of the Voting Rights Act, which requires "pre-clearance" from the U.S. Justice Department before certain states and jurisdictions can change their voting procedures. 

Congress enacted the legislation to prevent mainly Southern states from enacting new laws that would deny minorities the vote. Florida was not covered by Section 5, although Collier, Monroe and a few other of its counties were. A water district in Texas challenged the constitutionality of the pre-clearance provision, claiming that times have changed from the days of Jim Crow and it now is an unwarranted assault on states' rights.

"Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today," Chief Justice John Roberts wrote for the 8-1 majority. He went on to acknowledge "the historic accomplishments" of the legislation, but also declared there are "serious misgivings about the constitutionality of Section 5." This leaves the door open to a future challenge.

At some point, that challenge should come. It's ludicrous to think that in 2009, the Collier County Commission would enact a law designed to thwart minority voting rights. If, somehow, it did, the governor, the Florida Legislature or Florida's courts would surely step in to quash the law without prodding from the federal government. 

A 1982 amendment to the Voting Rights Act, and subsequent court decisions, also paved the way for so-called "minority-majority" districting designed to enhance the electoral chances of minority candidates. The subsequent racial gerrymandering has concentrated minority voting strength in Congress and legislatures, but it also has concentrated majority voting strength. 

More minority candidates have been elected. But one of the consequences has been that candidates, in order to win, don't have to address the concerns of constituents not in their racial bloc. This has contributed to the polarization of American politics. 

That polarization can be seen in the Florida Legislature. Members used to be elected from multi-member districts. Consequently, they had to appeal to a wide range of voters and interests.

Florida switched to single-member districts three decades ago, on its own volition and not because of any federal mandate. The shift has had the positive effect of electing more minorities, but the advantages of multi-member districts have been lost. 

There's a way to have the best of both worlds. It's called "cumulative voting." You may remember the term from the early days of the Clinton administration. Lani GuinierBill Clinton's nominee for assistant attorney general for civil rights, advocated it. Clinton pulled her nomination after critics jumped on cumulative voting as proof that she was a radical thinker.

With cumulative voting, officials are elected from multi-member districts, but with a twist that enhances the chances minorities will be elected. If, for instance, five positions are open, every voter gets five votes to use as he or she wishes. 

If Asian-Americans think it's important to elect an Asian-American to represent their minority interests, they can concentrate their voting power to enhance their candidate's chances. The candidate, however, would have to appeal to a larger constituency in the multi-member district in order to ensure election. 

Old ideas change one funeral at a time. The civil rights battles of the 1960s were well-fought, but it's time for new thinking — and new thinkers — to craft policies that serve the needs of today, not yesterday.

Commentary by retired Editorial Page Editor Kingsley Guy appears on alternate Sundays. Readers may e-mail him at [email protected].