domingo, 1 de março de 2009

Os mecanismos de proteção do voto na questão racial dos Estados Unidos

O Professor Farlei Martins envia a seguinte notícia publicada em primeiro de março de 2009 em "The New Yorker" sob o título "The Voter, Beware"

The Voting Rights Act, which passed in 1965, stands as one of the great monuments to
civil rights in American history. The Fifteenth Amendment, ratified in 1870,
purported to give Americans the right to vote regardless of “race, color, or
previous condition of servitude,” but it was not until a century later, with the
passage of the act, that the right was enforced, and Southern blacks were finally
free to cast a ballot. Over the years, an ideologically diverse group of Supreme
Court Justices has reviewed and approved the constitutionality of the act many
times. But, in a case to be argued before the Court this spring, the current
conservative majority has a chance to undo this signal achievement of American

Section 5 of the act, which is at issue in Northwest Austin Municipal Utility
District No. 1 v. Holder, is what gave the legislation teeth. That provision singles
out by name those states and counties with especially notorious histories of
discriminating against African-Americans, through such mechanisms as literacy tests,
character tests, and poll taxes. The law not only eradicated these obstacles; it
went a crucial step further. It decreed that if the “covered jurisdictions” wanted
to change their voting procedures in any way—from redrawing district lines in the
state legislature to moving the location of a solitary polling place—they first had
to obtain permission from the Justice Department. (Congress reauthorized the Voting
Rights Act in 1970, 1975, 1982, and 2006, and in the process expanded its coverage
to include several Western states with histories of discriminating against Hispanic
and Native American voters.) The process of review by the Justice Department, which
is known as “preclearance,” has been remarkably effective.

And that is the point of the lawsuit. Some of the jurisdictions covered by Section 5
now want to be released from this form of federal receivership. As the lower court
in the case put it, the plaintiffs argue that the preclearance provision should be
found unconstitutional “because Congress ‘irrationally and incongruously’ chose to
continue imposing ‘disproportionate’ burdens and a ‘badge of shame’ on covered
jurisdictions on the basis of an ‘ancient formula’ and ‘conditions that existed
thirty or more years ago but have long since been remedied.’ ” What is the proof?
The plaintiffs stated it in the first line of their brief: “The America that has
elected Barack Obama as its first African-American president is far different than
when Section Five was first enacted in 1965.”

To paraphrase the President: Yes it is. The formula for determining which
jurisdictions are covered is largely based on election results from 1964, a time
that is nearly a half century, and a world, away from our own. Almost all of
Virginia and much of North Carolina are covered jurisdictions under Section 5, and
Obama won both states. Moreover, the Justice Department has for some time been
approving ninety-nine per cent of the electoral changes submitted by covered
jurisdictions. As Representative Lynn Westmoreland, a Georgia Republican, put it in
arguing against the most recent reauthorization of the law, “Congress is declaring
from on high that states with voting problems forty years ago can simply never be
forgiven—that Georgians must eternally wear the scarlet letter because of the
actions of their grandparents and great-grandparents. We have repented and we have
reformed, and now, as Fannie Lou Hamer famously said, ‘I’m sick and tired of being
sick and tired.’ ” There is something unseemly, to say the least, about
conservatives who have opposed the Voting Rights Act now toasting its success,
particularly as that success is incomplete.

Barack Obama won the Presidency, but voting patterns in the Deep South suggest that
race remains a major factor in American political life. As part of a brief in the
Northwest Austin case, Professor Nathaniel Persily, of Columbia Law School, shows
how poorly Obama did with white Democrats in those states. According to Persily’s
analysis of the 2008 returns, Obama received forty-seven per cent of the white vote
in states that are not covered under Section 5 but won only twenty-six per cent of
the white vote in covered states. “Barack Obama actually did worse among whites than
John Kerry in several of the covered jurisdictions, despite the nationwide
Democratic swing,” Persily writes. Race seems like the best explanation for this
difference. The fact that other African-American candidates have failed so often and
for so long with white voters in the South indicates that no one should be in a
hurry to declare the United States a “post-racial” society.

What recent electoral history shows is that voting requires broader, not narrower,
protection. In many parts of the country, the voting rights of poor and minority
citizens are treated with not so benign neglect. In the 2000 election,
African-American voters in Florida suffered disproportionately from that state’s
shoddy practices, such as inadequately maintained registration lists and inferior
technology; in 2004, many minority voters in Ohio endured long lines waiting for
balky, and too few, voting machines. Across the nation, laws that remove the
franchise from those with criminal convictions hit minorities especially hard. More
directly, the Republican Party has made an institutional commitment to eradicate the
nonexistent problem of voter fraud by imposing identification requirements that are
obviously aimed at limiting the numbers of voters from demographic groups that favor
Democrats. But neither Florida nor Ohio is a covered jurisdiction under Section 5,
and the act is not written to address new techniques of suppression. Three years
ago, Congress ducked the problem by simply reauthorizing the old law and giving it a
fatuous new name, the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting
Rights Act Reauthorization and Amendments Act of 2006. For the legislators, this was
heroism by association, not heroism in fact.

Viewing Obama’s election as an opportunity to tidy up the nation’s historical
accounts is tempting but ultimately wrong. Yet even if the Court’s conservatives
succeed in taking out Section 5 they cannot reverse the course of a changed and
changing nation. In the Court’s great affirmative-action case of 2003, in which it
upheld racial preference in admissions at the University of Michigan Law School,
Justice Sandra Day O’Connor’s opinion suggested that by 2028 such measures should no
longer be necessary. The Voting Rights Act expires in 2031. Thanks in part to the
election of Barack Obama, it is now plausible to believe that the day will come when
the act, too, will no longer be necessary.

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