Ironies Abound, or SCOTUS Knows Best

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Here’s an irony: a set of five, unelected, deeply conservative Supreme Court Justices known principally for railing against judicial activism voted to overturn an overwhelming renewal of the 1965 Voting Rights Act today based on the grounds that… “We know best.”

Or at least better… Apparently, five Republican appointed U.S. Supreme Court justices know better than the 390 U.S. House Members and 98 U.S. Senators who voted in favor of renewing the Act in 2006. And, yes, they also know better than the deeply Conservative President George W. Bush who signed it into law.

In their 5-4 decision the gang of five struck down a key part of the Voting Rights Act of 1965 —Section 4–which defines the map that determines which states must get federal permission before they change their voting laws. Thus, although Section 5 survives, it will have no actual effect unless Congress can enact a new statute to determine who should be covered by it. Frankly, given the deeply conservative nature of our Congress, it’s doubtful this will get enacted any time soon, if at all.

Why the decision? Ostensibly, because an unrepentant county in Alabama complained about the curse of federal oversight even as they continued to enact racially discriminatory voting laws. That particular county was Shelby, Alabama, which, in another irony, was the state where the Civil Rights movement was essentially born and withstood its trial by fire in Birmingham.

In 2006, the City of Calera, which lies within Shelby County, enacted a discriminatory redistricting plan without complying with Section 5 of the Voting Right Act, leading to the loss of the city’s sole African-American councilman, Ernest Montgomery. After a Federal review, and in compliance with Section 5, Calera was required to draw a non-discriminatory redistricting plan and conduct another election in which Mr. Montgomery regained his seat.

“Shelby County was and is the very kind of place for which the Voting Rights Act was written.” said an election official there, “So, it’s pretty unbelievable that this case has come from this community.”

Of course, Shelby County is not alone. If it were, maybe this wouldn’t be such a problem. But it’s not. Section 4 of the Voting Rights Act has been invoked more than 700 times between 1982 and 2006.

So how did our gang of five manage to miss the pervasiveness of voter discrimination issues? Voter suppression is not exactly a rarefied concept, nor is it an accident. It is a tactic. And despite the contrary opinions held by the gang of five on our highest bench, voting suppression is as real as the six-hour long lines in minority voting districts in Florida last November. Those mile long lines and the incredible wait were the result of Florida’s Republican-controlled legislature reducing the number of early voting days from 14 to 8. While they were at it, they also eliminated voting on the Sunday preceding Election Day. Viola! Making it that much harder for working class voters. In Ohio, Republican officials cut early-voting hours leading up to the November election. The week before that, in neighboring Pennsylvania, the Republican House Majority leader was caught on tape confessing that the new restrictive voting law “is gonna allow Governor Romney to win the state of Pennsylvania.” In Virginia, new Voter ID restrictions were put into place as well. Overwhelmingly, these laws are an effort to reduce minority participation in their electoral franchise.

All over the country, in dozens of states, Republican lawmakers, fueled by the American Legislative Exchange Council (ALEC), enacted legislation aimed at suppressing the vote under the guise of eliminating that mind forged bugaboo of the right, ‘voter fraud’; without, of course, having any verifiable cases of voter fraud to point to, outside the ones of their own making. (For those who want to keep track, a great example of this was in Florida, again, where Republican’s hired Strategic Allied Consulting who are now facing third degree felony charges after admitting that they submitted dozens of forged voter registration applications last fall ahead of the 2012 election.)

Then of course, there are the redistricting efforts here in Virginia and all across the South. Some successful, others less so. Virginia’s own ignominious efforts– in which Virginia Republicans took advantage of long time civil rights leader Henry Marsh’s absence to push a redistricting plan through the state Senate–were ultimately scuttled.

Why?

Funny you should ask.

Out of fear of the Federal oversight provided for in the 1965 Voting Rights Act. Ultimately, the House Speaker determined that risk was too great and simply ruled the redistricting effort, “Not Germane.

That’s why this Supreme Court decision is such an intellectual wreck. Because the Voting Rights Act is not just monumental and historic, it is effective. It is the reason we have increased minority voter participation across the South–the key rationale Robert’s used in the majority decision to abandon it.

Here’s an additional kick in the teeth. All of the voting suppression mentioned above is happening with the Voting Rights Act still intact. What will happen when our Conservative Congress fails to effectively remodel Section 4?

As U.S. District Judge John Bates remarked last year in a voter suppression case out of South Carolina, the deterrent effect of Section 4 alone is enormous. Its mere presence has stopped lawmakers from pitching hundreds more dubious laws (like the kind floated in Virginia this past session).

According to a Brennan Center for Justice Analysis:

In the past 15 years, The Department of Justice (DOJ) has blocked 86 state and local submissions of election changes.

Forty-three of those objections occurred in the last decade. Thirty-one occurred since the 2006 reauthorization of Section 5.

In 2012, for example, a court blocked Texas’s statewide redistricting maps, finding the state enacted certain maps with the intent to racially discriminate against African-American and Latino voters. In the same year, Section 5 prevented implementation of two changes to the method of electing trustees of the Beaumont Independent School District in Beaumont, Texas. The first change replaced two single-member districts of the school district with at-large districts, from which it was highly unlikely that African-Americans could successfully elect their candidates of choice.

Just a few months later, Section 5 prevented other election changes that would have shortened, without notice, the terms of the three incumbent minority candidates, and treated the candidate qualification period as closed such that the incumbents would not have been able to run for re-election in their own districts.

This list goes on and on. None of these instances, and hundreds more, would have been prevented without an effective Voting Rights Act.
“In its ideologically motivated and divisive 5-4 ruling today in Shelby County v. Holder, the Supreme Court has drawn the teeth of one of the most important pieces of legislation in American history, the Voting Rights Act.” said Scott Price, President of the Alliance for Progressive Values, “At a time when voter suppression is spreading once again across parts of the country with long histories of discrimination, this ruling sends a clear signal that the courts will look the other way while the franchise of minorities is infringed. By booting this issue back to a dysfunctional and moribund Congress that has nevertheless regularly reapproved the VRA, the Court has guaranteed that American citizens will find it harder to vote in upcoming elections. This is a shameful moment.”

Now, acts of minority voter suppression will have to be challenged after the fact, if they are challenged at all.

Yet,  Chief Justice John Roberts wrote in his decision that “Things have changed in the South. Blatantly discriminatory evasions of federal decrees are rare.”

In yet another irony, if they are rare, it is precisely because the Voting Rights Act prevented them.

“The Court,” Justice Ginsburg wrote in dissent, “makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story.” And then she proceeded to outline the countless ways in which racial discrimination in voting practices is alive and well in Alabama and other jurisdictions covered by the law–citing actual evidence.

“The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective.” Justice Ruth Bader Gingsburg read her minority opinion out loud from the bench in a stinging rebuke to the majority:

“Throwing out preclearance when it has worked and continues to work to stop discriminatory changes is like throwing out your umbrella in the rainstorm because you are not getting wet.”

Unfortunately, it is the minority voters across the nation who will suffer the deluge.

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