RUSTHOVEN: This is post-racial America?

July 6, 2013

RusthovenThe final days of June made me wonder if we’re ever going to get past race.

In Florida, testimony began in the prosecution of George Zimmerman for the death of Trayvon Martin. As all know, Martin, a 17-year-old African-American, was shot in an altercation last year with Zimmerman, a 20-something Hispanic in a “neighborhood watch” group.

From day one, the issue has been whether Zimmerman acted in self-defense. From day one, strong opinions—by millions who weren’t there—have divided on political and racial lines.

Our president didn’t help, volunteering, “If I had a son, he’d look like Trayvon.” Nothing like exacerbating a divisive situation, rather than trying to diffuse it, or—here’s a selection not on the Obama menu—keeping still.

Meanwhile, Savannah, Ga., chef Paula Deen was dumped by The Food Network after testifying in a deposition that there were times in decades past she’d used the “N” word.

One doubts many Southerners of Deen’s generation (she’s 66) could truthfully say otherwise. And not just Southerners; you’d hear the word growing up in Indiana 50 years ago, and were blessed if your parents taught you it was wrong.

No matter. The Food Network can be fun (“Chopped,” featuring Carmel High and Purdue University grad Ted Allen, is a hoot), but it’s never going to be behind the political correctness curve. Good-bye, Paula.

Then there was the Supreme Court’s Voting Rights Act decision. The act, which dates to 1965, prohibits a handful of states (mostly Southern) and scattered political units elsewhere from changing voting laws without Department of Justice preclearance.

Requiring federal preapproval of state laws is extraordinary (that’s an understatement), but the court rightly upheld the act in 1966 as justified to address “voting discrimination where it persists on a pervasive scale.” Set to expire in five years, the act was extended for another five in 1970, for seven more in 1975, then for 25 years in 1982, then a further 25 in 2006.

But criteria for making states subject to preclearance rules haven’t changed in four decades. If a state was discriminatory based on early 1970s data, it’s deemed discriminatory now—still not to be trusted—no matter what has changed over the past 40 years.

Four years ago, the court told Congress the act “must be justified by current needs,” and there was considerable evidence the outdated coverage formula “fails to account for current political conditions.” Congress did nothing.

This week, the court finally struck down the formula, noting that most covered states now had better records on minority voter registration and turnout than the nation as a whole, including supposedly more enlightened Northern realms.

Note, the court did not invalidate preclearance rules. It just said Congress had to quit using out-of-date statistics to determine which states are governed by them. From ensuing shrieks on the left, one would think Jim Crow was resurrected (words that appeared in some commentary).

The Old Testament speaks of God “visiting the iniquity of the fathers upon the children unto the third and fourth generation.” We are more than four generations past slavery, but our iniquity on race continued for generations after that. We pay the price still.

My lifetime has seen extraordinary progress on racial equality, which is not to say we don’t have further to go. Maybe when my children are my age, everything touching on the topic will no longer be an automatic hot button.•


Rusthoven, an Indianapolis attorney and graduate of Harvard College and Harvard Law School, was associate counsel to President Reagan. Send comments on this column to ibjedit@ibj.com.


Recent Articles by Peter J. Rusthoven / Special to IBJ

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