Conservatives’ case against Voting Rights Act is a sham

— July 2, 2013

When the U.S. Supreme Court last week gutted the major protection offered minorities for more than four decades under the Voting Rights Act, Chief Justice John Roberts tried to justify the shameful decision by lamely saying “our country has changed.”

It has changed, but while Roberts argued that conditions have overall improved for minority voters, the reality is that our high court’s conservative majority has brazenly become even more cynical and calculating in its effort to allow states and counties to erect barriers to minorities trying to exercise their right to vote.

Kerry Drake

It is this same judicial majority that infamously derides “activist” liberal judges for supposedly trying to rewrite laws and play politics, and then actually does precisely that with its rulings.

It’s as if Roberts & Company wasn’t content to make a mockery of fair elections in its Citizens United decision, which allows corporations to contribute an unlimited amount of money to political campaigns. That ruling didn’t help Republicans put a new occupant in the White House in 2012, so why not throw in a few more impediments to the Democrats’ effort to get much of its base to the polls?

The chief justice pointed out in his majority opinion that voter turnout and registration rates in jurisdictions in the nine states covered by the Voting Rights Act now approach parity. “Blatantly discriminatory evasions of federal decrees are rare,” Roberts wrote. “And minority candidates hold office at unprecedented levels.”

By declaring unconstitutional the law’s Section 4 – the portion that sets forth the coverage formula to determine if states and counties have continued to undermine minority voting rights – it also makes moot Section 5, the enforcement phase. This provision requires any jurisdiction singled out in Section 4 to obtain federal preclearance of any changes to its voting laws. If a new coverage formula is created and approved by the courts, Section 5 would once again come into play.

While poll taxes, literacy tests and other blatant examples of racial discrimination are thankfully gone, the court’s decision leaves the door wide open for more subtle forms to be applied at the polls, such as voter ID laws that insidiously aim to reduce minority voting under the guise of ensuring against voter fraud. The Fifteenth Amendment guarantees that everyone has an equal right to vote, regardless of one’s race or color, but Republicans who advocate for stricter voter ID laws will use the absence of Sections 4 and 5 protection to push these changes.

Anyone who doubts that could happen need look no further than Texas, which was blocked by the Voting Rights Act last year after it passed both a strict voter ID law and a redistricting scheme that federal courts found discriminated against blacks and Latinos. The state couldn’t wait to take advantage of the Supreme Court’s gift. A mere two hours after the ruling, Texas Attorney General Greg Abbott said he plans to advance both measures immediately.

In the voter ID law passed by Texas, the state went to ridiculous lengths to keep minorities, seniors and poor people away from the polls. If the law is now allowed to be enacted because of the high court’s ruling, Texans trying to vote would be required to show a photo ID from a very narrow list of acceptable identification. A would-be voter would actually be allowed to cast a ballot by showing an expired gun license from another state, but Social Security cards and student IDs – proof that people are actually likely to have – would not be accepted.

Fortunately, Texas’ discriminatory redistricting changes may remain tossed out by the courts. Last week’s decision kept intact Section 2 of the Voting Rights Act, which covers redistricting requirements under the law.

Wyoming lawmakers will probably consider another voter ID law next year after rejecting one in 2013, but it’s not imperative to conservatives that one actually pass in the Cowboy State, which has a low minority population and is indisputably ruled by Republicans. In many Southern states that fall under the Voting Rights Act, though, turning more minority voters away has proven to have a huge influence on election outcomes.

The genuinely stupid principle behind Roberts’ argument – that the Voting Rights Act of 1965 worked so well, we don’t need it any more – was laid to waste by Justice Ruth Ginsburg’s powerful dissenting opinion.

“Throwing out preclearance [by the federal government] when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet,” she wrote. In a single sentence, she exposed Roberts’ logic as silly and petty.

Ginsburg also provided several examples of racial discrimination in the affected jurisdictions that belie Roberts’ contention that we’re beyond blatant bigotry. She noted that in 2001, the mayor and an all-white, five-member Board of Aldermen of Kilmichael, Miss., “abruptly canceled the town’s election after ‘an unprecedented number’ of African-American candidates announced they were running for office. [The Department of Justice] required an election, and the town elected its first black mayor and three black aldermen.”

Without the Voting Rights Act, obviously, there would have been no federal involvement, no election, and no black officials in the town.

There are plenty of reasons to be upset by the court’s decision, especially by those who helped institute the changes that have led to improved – but far from perfect – election conditions in states that have historically discriminated against minorities. Rep. John Lewis, who was brutally beaten as he walked with Rev. Martin Luther King during the Selma, Ala., march for the right to vote in 1965, was understandably outraged that the majority callously “stuck a dagger in the heart” of the Voting Rights Act.

But because Selma now has a black mayor, Roberts seems to think that everything suddenly balances out, and the law that helped make such progress possible can be consigned to the dustbin of history.

“History is relevant because voting rights have been given in this country, and they have been taken away,” Lewis noted.

Conservative columnist George Will, writing in The Washington Post, called the Voting Rights Act “the noblest legislation in United States history,” and maintained that it was “more transformative than the 1862 Homestead Act, the 1862 Morrill Act [that created land-grant colleges] or the 1944 GI Bill of Rights.”

But Will thinks the court correctly threw out the mechanism that made our most noble law work because laws “can become unconstitutional when facts that made the law appropriate change.” He completely ignored the fact that Congress – which is responsible for deciding whether the law is indeed still an appropriate remedy against racial discrimination – most recently extended the Voting Rights Act in 2006 for another 25 years by a vote of 390-33 in the House and 98-0 in the Senate. The legislative sentiment that the law is needed is overwhelming, and has been since its inception.

Perhaps the biggest gripe I have with Roberts’ case against the Voting Rights Act – greater even than its intellectual weakness – is that it is so disingenuous.

The chief justice said that four years ago, when the court decided not to rule on the law’s constitutionality, it clearly signaled to Congress it needed to remedy problems by changing the law’s coverage formula, which he charged was based on outdated data from 1975.

Instead, Congress did nothing – which certainly isn’t surprising, since when it last considered an extension in 2006, leaders of both parties said the existing system worked extremely well. One reason for keeping the status quo was because the law gave covered states and counties the opportunity to bail out from the law’s mandate if it had a clean record for a decade, which is a reasonable time period to show that a jurisdiction has changed its ways.

Roberts has issued a challenge to Congress to update the law, and do a new analysis of contemporary voting patterns to create a new list of jurisdictions that need to be singled out for preclearance of any voting changes. But the chief justice is obviously an astute observer of the current political scene, and he knows what he’s asking for isn’t likely to happen.

First, while the original list of states that were discriminating against minority voters was pretty easy to ascertain, since they all had a long history of such behavior, members of Congress aren’t anxious to point the finger at any new ones with similar problems. Second, given the inability of the current Republican House and Democratic Senate to compromise and work together on any bipartisan legislation, Roberts’ call for such action is essentially meaningless.

The Supreme Court, then, is hiding behind the patently false case it has made to the American public that if Congress would only be willing to fix an out-of-date law, the Voting Rights Act could still be a workable solution. What the conservative majority actually did was allow the Republican Party to continue refining the highly questionable strategy it adopted in 2012: Try to appeal to more minority voters overall so it can win elections, while at the same time passing discriminatory voter ID laws in the most contentious states that will make it more difficult for minorities to vote.

Congress needs to have the courage to act, and protect the voting rights of minorities that it wisely defended in 1965 and has ever since, until now. No party should be able to use the judicial system to try to hijack elections by making it more difficult for Americans to vote. Without the Voting Rights Act’s key provisions, the court has effectively erased one of the major victories of the civil rights movement, and ensured that it won’t be restored unless federal lawmakers take charge of the issue.

For a chief justice who said in his Senate confirmation hearing that he only wanted to be an umpire who called balls and strikes in court, and a self-proclaimed strict constructionist, Roberts is well on the way to becoming one of the nation’s most political jurists ever. His influence in the Voting Rights Act case aptly demonstrates that not only does he always know which way the political winds are blowing, he’s capable of shifting them wherever they ideologically best suit his purpose.

— Veteran Wyoming journalist Kerry Drake is the editor-in-chief of The Casper Citizen, a nonprofit, online community newspaper. It can be viewed at www.caspercitizen.com.

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Kerry Drake

Veteran Wyoming journalist Kerry Drake has covered Wyoming for more than four decades, previously as a reporter and editor for the Wyoming Tribune-Eagle and Casper Star-Tribune. He lives in Cheyenne and...

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  1. Congress will not act until both the House and Senate have Democratic majorities. The Republicans have no interest in encouraging the young, old, poor, women and minorities to vote, so they’ll use such modern versions as Voter ID to depress those voters who are increasingly voting for Democratic candidates, while preserving the vote for older, white men from rural America.
    That’s smart in the short term, but whatever will the GOP do as their base dies off?