Nel's New Day

June 25, 2013

SCOTUS Accelerates ‘War on Voting’; Displays ‘Hubris’

The Supreme Court has delivered its long-awaited decision on the Voting Rights of Act of 1965 that required some jurisdictions to obtain “pre-clearance” from the Department of Justice before changing their voting laws. The conservative majority, except Clarence Thomas, agreed that the U.S. praised the VRA because racial prejudice still exists. Yet its 5-4 ruling struck down Section 4, considered out of date, as unconstitutional, leaving Section 5 intact.

It’s an odd twist: Section 4 provides the formula and the locations for Section 5. That means that the pre-clearance directive remains but without any criteria. SCOTUS suggests that Congress pass a different formula for Section 5.

A competent Congress could do this, but the current federal legislative branch has an extremist caucus that uses of extortion, hostage-taking, and inertia to control those who actually wish to govern. The House cannot even pass a farm bill. With the GOP in the majority of many states, particularly the South, Republicans will avoid any voting legislation. To restrict voting rights will bring down the wrath of the Justice Department; to allow minorities an equal right to vote will result in the wrath of the conservative electorate.

VRA was used to block more than 1,000 proposed changes to voting laws between 1982 and 2006, over 80 percent of them on the local level. Last year, the act stopped a voter identification law in Texas and elimination of early voting days in Florida. The case that SCOTUS heard from Shelby County (AL) tried to eliminate the only black city council in Calera. Just five months ago, a majority of the states in the nation worked to suppress votes from minorities and the poor.

Surveying data on racial stereotypes from the 2008 election, law professors Christopher Elmendorf and Douglas Spencer found that it is consistent with “the geography of anti-black prejudice.” In one day, SCOTUS destroying the progress of the past 100 years, repeating the failings of Giles v. Harris that upheld poll taxes and literacy taxes 110 years ago. The burden of proof has moved to those who are discriminated against, rather than those performing the discrimination. The next step will be to erase the rest of VRA.

Almost six months ago, Ari Berman described the problems:

“a whiter, more Southern, more conservative GOP that has responded to demographic change by trying to suppress an increasingly diverse electorate; a twenty-five-year effort to gut the VRA by conservative intellectuals, who in recent years have received millions of dollars from top right-wing funders, including Charles Koch; and a reactionary Supreme Court that does not support remedies to racial discrimination.”

Within an hour of the ruling’s announcement, Texas moved forward with its voter ID law that can disenfranchise 800,000 voters, according to Attorney General Greg Abbott. They will also put into effect the gerrymandered redistricting maps to ensure that each district has sufficient GOP voters to keep that party in control of the state legislature and the U.S. representatives.

Mississippi and Alabama will move forward with their voter ID law. Alaska has also targeted blacks, Hispanics, and native Americans in its restrictive laws. Among the 31 states requiring voter ID are WisconsinOhioNorth Carolina, and Michigan.


These voting restrictions will continue to cross the nation:

Strict voter ID laws:  For example, Virginia will abandon the DOJ-required flexible law for the much tougher 2013 photo ID-only restrictions. Any challenge to the law must require a disenfranchised voter to sue and prove injury.

Racially-gerrymandered legislative maps:  When Texas based its redistricting plans on race, it was blocked because of racial gerrymandering. Judge Thomas Griffith, appointed by George W. Bush, said that black districts were cut off from representatives’ offices while districts of white Congress members were either not touched or “redrawn to include particular country clubs and, in one case, the school belonging to the incumbent’s grandchildren.” Again, Texas is is not unique. A study shows that gerrymandering is the reason that Democrats won the popular vote for House candidates but the majority of representatives are GOP.

Blocking grassroots get-out-the-votes efforts:  Arizona Republicans are ready with their proposal to undermine voter turnout efforts in Latino communities by making it a felony for anyone working or volunteering on behalf of a political committee or other organization to deliver mailed ballots to a polling place. In the last election, Sheriff Joe Arpaio won by a narrow margin after a large number of Latino ballots were considered provisional, meaning that the state would not count them.

Chris Hayes described the decision as “one of the most stunning exercises in ‘judicial activism’ ever.” This term was coined by the far-right to complain about any decisions that they didn’t like, but there’s a different definition. Congress passed the Voting Rights Act and then re-approved it four more times, each time with large bipartisan majorities. In 2006, the Senate, in a unanimous vote of 98-0, and the House, in a vote of 390-33, renewed the VRA until 2031. Presidents from both parties have also supported VRA. SCOTUS’ ruling said that the country needs this guidance but they don’t approve of where the guidance is being applied. That’s judicial activism.

Constitutional Accountability Center’s David Gans explained another indication of “judicial activism.” He said that Chief Justice John Roberts described Section 4 of the VRA as unconstitutional without explaining how this was true. Roberts’ opinion stated that the VRA provision is not consistent with the “letter and spirit of the Constitution” and wrote about state sovereignty. Yet the Fifteenth Amendment gives Congress the power to prevent racial discrimination in voting.  In fact, the ruling seems to unconstitutional in itself: the VRA is legal. It’s just that Roberts has hated the Voting Rights Act for over 30 years when he worked for Ronald Reagan.

President Obama made the following statement this morning:

“I am deeply disappointed with the Supreme Court’s decision today. For nearly 50 years, the Voting Rights Act–enacted and repeatedly renewed by wide bipartisan majorities in Congress–has helped secure the right to vote for millions of Americans. Today’s decision invalidating one of its core provisions upsets decades of well-established practices that help make sure voting is fair, especially in places where voting discrimination has been historically prevalent. As a nation, we’ve made a great deal of progress towards guaranteeing every American the right to vote. But, as the Supreme Court recognized, voting discrimination still exists. And while today’s decision is a setback, it doesn’t represent the end of our efforts to end voting discrimination. I am calling on Congress to pass legislation to ensure every American has equal access to the polls. My Administration will continue to do everything in its power to ensure a fair and equal voting process.”

Justice Ruth Bader Ginsberg summarized the ruling: “Hubris is a fit word for today’s demolition of the VRA.”

Senate Judiciary Committee Chairman Pat Leahy (D-Vt.) wasted no time in declaring that Congress will take action:

“Section 5 of the Voting Rights Act has protected minorities of all races from discriminatory practices in voting for nearly 50 years, yet the Supreme Court’s decision to overturn the coverage formula effectively guts the ability of Section 5 to protect voters from discriminatory practices. I could not disagree more with this result or the majority’s rationale. The Voting Rights Act has been upheld five times by the Supreme Court on prior occasions, and Section 5 was reauthorized and signed into law by a Republican President in 2006 after a thorough and bipartisan process in which Congress overwhelmingly determined that the law was still vital to protecting minority voting rights and that the coverage formula determining the jurisdictions to be covered was still applicable.

“Several lower court decisions in recent years have found violations of the Voting Rights Act and evidence of intentional discrimination in covered jurisdictions. Despite this sound record, and the weight of history, a narrow majority has decided today to substitute its own judgment over the exhaustive legislative findings of Congress.

“As Chairman of the Judiciary Committee, I intend to take immediate action to ensure that we will have a strong and reconstituted Voting Rights Act that protects against racial discrimination in voting.”

What are potential solutions to this destruction?

 A New Act of Congress:  As we have said, this will be difficult.

“Bail-In” Lawsuits: Section 3 of the VRA allows federal courts to put jurisdictions back into pre-clearance if it finds violations of Fourteenth or Fifteenth Amendment. It has rarely been used, meaning that it has little precedent.

Fixing The Judiciary: Another difficult fix, this requires approval of nominations by the Senate.

The right wing has accused the Voting Rights Act of using a hatchet instead of a scalpel to fix laws that eviscerate voting rights for minorities. With yesterday’s and today’s decisions against minorities, the Supreme Court is guilty of using a hatchet to murder any way that minorities and women can find recourse through the courts for wrongs against them.

Meanwhile Rep. Darrell Issa (R-CA) has dropped his investigation into the IRS and the privacy of the press scandals and gone back to Benghazi. With this SCOTUS ruling, I think that he’s not going to get much publicity.


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