FEIN: Colorblindness test

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By Bruce Fein

COMMENTARY:

President-elect Barack Obama will soon be tested on his professed devotion to colorblindness in two race discrimination cases pending in the United States Supreme Court. Both challenge violations of a colorblind standard in voting laws and employment, respectively, to punish past racial discrimination in the manner of original sin.

During his presidential campaign, Mr. Obama echoed the electrifying philosophy of Justice John Marshall Harlan's lonely dissent from Plessy v. Ferguson (1896): "[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law." The question presented in the Supreme Court is whether Mr. Obama will dishonor his promise of a colorblind administration like he dishonored his pledge to accept public funds in his general election campaign.

The voting case is Northwest Austin Municipal Utility District No. 1 v. Mukasey. A few pages of history first. For virtually a century after the Civil War, former states of the confederacy manipulated voting laws to circumvent the 15th Amendment's prohibition on racial discrimination in the franchise: Grandfather clauses, literacy tests, the white primary, or sheer terror immortalized by the film "Mississippi Burning" documenting the 1964 Ku Klux Klan murders of civil rights workers James Chaney, Andrew Goodman and Michael Schwerner. Court litigation had proven too lead-footed to remedy the unconstitutional suppression of the black vote.

Congress answered this ugly history with Section 5 of the Voting Rights Act of 1965. It required states or certain localities with a sordid history of discrimination to obtain pre-clearance from the U.S. Justice Department of a federal court for voting law changes that might erect new forms of discrimination.

The remedy was drastic. State sovereignty in these jurisdictions was suspended for five years in voting matters. Changes were presumed unconstitutional until vetted and approved by federal authorities. Voting, however, is special in the constitutional hierarchy. As the Supreme Court explained in Reynolds v. Sims (1964), it is preservative of all other rights. Thus, the constitutionality of Section 5 was sustained by the high court in South Carolina v. Katzenbach (1966). It stressed that the unprecedented encroachment on state's rights was necessary because existing laws had proven ineffectual and case-by-case constitutional litigation under the 15th Amendment was too costly and slow.

During the ensuing years, politics has ignored genuine racial progress. In 1970, Section 5's extraordinary preclearance remedy was extended by an additional five years, followed by a seven-year, 25-year, and a last 25-year extension in 2006. The result places a Section 5 yolk on jurisdictions without any contemporary earmarks of racism. It now applies throughout nine states - Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia - and to scores of counties and municipalities elsewhere. Congress is deaf to the fact that, at present, 30 percent of approximately 650 black state legislators represent majority white districts; that in 2004, 17.9 percent of the age-eligible voters in the Southern states of the old Confederacy were black, which matched the black percentage of actual voters; and that the end of racial gerrymandering to create safe black seats dictated by the Supreme Court's decision in Shaw v. Reno (1993) did not trigger the predicted loss of black representation in Congress.

Mr. Obama's presidential election further discredits the congressional presumption of unconstitutional racial motivation in voting matters throughout the South and even Alaska and Arizona. The Texas jurisdiction created in 1980 to provide sewer services that brought suit in Northwest Austin Municipal Utility District No. 1 has never been accused of discrimination in the way its 3,500 residents elect their five directors.

To remain true to his campaign words, Mr. Obama should argue against the constitutionality of Section 5's extraordinary remedy for ancient discrimination. That would not make racial discrimination in voting legal, but would simply apply customary remedies for voting violations that are available for sister types of racial discrimination.

In Ricci v. DeStefano, one Hispanic and 17 white New Haven, Conn., firefighters sued the city for illegal discrimination for denying them promotions based on high examination scores because too few blacks would have qualified. In the U.S. 2nd Circuit Court of Appeals, Judge Sonia Sotomayor insisted the promotion denials were "facially race-neutral" because none of the low-scoring ineligible African-American firefighters was promoted either! That is like saying that if all eligible black voters and all ineligible white voters are prohibited from voting, no racial discrimination occurred because neither the blacks nor the whites had their votes counted.

As a senator, Mr. Obama supported the exclusion of white members of Congress from the Congressional Black Caucus because of skin color - even liberal Democrats with majority black districts like Steve Cohen, Tennessee Democrat. Let's hope his election to the presidency has given him the wisdom of Martin Luther King that in every walk of life without exception persons should be judged by the content of their character, not by the color of their skin.

Bruce Fein is a constitutional lawyer with Bruce Fein & Associates Inc. and author of "Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy."