This July, the Heritage Foundation hosted a talk by Abigail Thernstrom, the author of the newly released book Voting Rights and Wrongs: The Elusive Quest for Racially Fair Elections, to discuss the findings of the book and explore its implications for current Constitutional/political discourse.
Thernstrom began her talk with the warning that she “[had] not written a book that can be reduced to soundbytes.” Moreover, Thernstrom said, “I thought I’d focus on a few interconnected points that challenge conservative thinking in the hopes of getting a discussion going.”
For many conservative thinkers, including William F. Buckley Jr, the Founder of National Review, the Voting Rights Act was suspect even at the time of its passage, and large segments of the movement, Heritage scholars included, have argued that the Act is completely unconstitutional in the present day. Heritage Foundation Legal Scholar Hans Von Spakovsky recently wrote a brief commentary calling the Act an “extraordinary and unprecedented intrusion into state sovereignty.”
Thernstrom took pains in the initial part of her speech to distance herself from those critics who thought the Act should never have been passed, citing the grip which white supremacist thinking had on the South at the time of its passage. “It was dangerous work registering black voters in the South and particularly in Mississippi. Not only dangerous, but particularly futile,” Thernstrom said.
Thernstrom also cited the impossibility of enforcing Constitutional requirements using conventional methods:
“The Southern racist establishment fully understood that its apartheid regime could last only as long as blacks were denied the vote and it did not intend to go quietly into the night. Enforcing Fifteenth Amendment rights thus required…unprecedented intrusion of Federal power into elective affairs [that] could break the back of Southern resistance,” Thernstrom said. “Surely we do not want to say today, Southern blacks should have been more patient for even longer, which in any case, they were not prepared to do.”
Having concluded this dire assessment of the pre-Voting Rights Act South, Thernstrom moved on to discuss where the Act had been misapplied, and how the roots for this misapplication were permitted to exist. Thernstrom warned that former Supreme Court Justice Hugo Black, who had originally wanted to strike down the Act, was wrongly ignored for his point of view at the time, which led to ignorance of his arguments in subsequent years as well.
“It totally distorted our Constitutional Government, [Black] argued, almost erasing the distinction between Federal and State power,” Thernstrom said. “Black’s argument was a significant Constitutional argument which in subsequent years should not have been forgotten, which it was.”
Yet for Thernstrom, the point at which the Act began to be truly misapplied came when the Supreme Court validated an interpretation of the act which barred any attempt to “dilute” the effect of black voters as a group in the case of Allen v. State Board of Elections. “After the Court decision in 1969, the Voting Rights Act was on a slippery slope,” Thernstrom argued. “From there, it was a short slide down that slope to a constitutionally problematic system of reserved seats for minority group members.”