Levees Not War

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“Throwing out preclearance 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.”

—Justice Ruth Bader Ginsburg, dissenting opinion, Shelby County v. Holder

Re-Legalizing Electoral Racism; Red State Republicans ‘Free at Last’

June 25, 2013, will go down in infamy as the day when a radically conservative majority of the Supreme Court ripped the guts out of the historic protections of the 1965 Voting Rights Act, “the crown jewel of the civil rights movement” that was so proudly signed by President Lyndon B. Johnson. Congressman John R. Lewis, who was beaten nearly to death by state troopers in the famous “Bloody Sunday” civil rights march in Selma, Alabama, in March 1965 (see photo below), declared the decision “a dagger in the heart” of the Voting Rights Act.

What the 5–4 decision, signed by Chief Justice John Roberts, does, nearly 50 years after its signing, is declare unconstitutional the single most important part of the Act (section 4), which identifies the states and counties that must submit to oversight (or preclearance) by the Justice Department before changing “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” in any “covered jurisdiction.” In effect, the conservative majority struck down section 4 as a sneaky way of nullifying section 5, without actually ruling on the constitutionality of section 5. As the New York Times’s Adam Liptak explains:

The majority held that the coverage formula in Section 4 of the Voting Rights Act, originally passed in 1965 and most recently updated by Congress in 1975, was unconstitutional. The section determined which states must receive clearance from the Justice Department or a federal court in Washington before they made minor changes to voting procedures, like moving a polling place, or major ones, like redrawing electoral districts. . . .

The decision did not strike down Section 5 [which sets out the preclearance requirement], but without Section 4, the later section is without significance—unless Congress passes a new bill for determining which states would be covered.

These jurisdictions that were required to seek preclearance include the very states—mostly in the Old Confederacy—that were the worst offenders against minorities seeking the right to vote. Indeed, it is no accident that it was Shelby County, Alabama—i.e., Birmingham—that brought the suit against the U.S. Justice Department. In the 1960s it was the Justice Department, very often backed up by the National Guard, that was on the front lines of protecting southern blacks against discrimination, vicious racism, and murder.

In “An Assault on the Voting Rights Act,” the New York Times editorial board declared the decision “damaging and intellectually dishonest,” and that was just in the first sentence. In a Times op-ed, Richard L. Hasen, author of The Voting Wars: From Florida 2000 to the Next Election Meltdown, writes:

The court pretends it is not striking down the act but merely sending the law back to Congress for tweaking; it imagines that Congress forced its hand; and it fantasizes that voting discrimination in the South is a thing of the past. None of this is true.

In the Shelby decision, we see a somewhat more open version of a pattern that is characteristic of the Roberts court, in which the conservative justices tee up major constitutional issues for dramatic reversal. First the court wrecked campaign finance law in Citizens United. On Tuesday it took away a crown jewel of the civil rights movement. And as we saw in Monday’s Fisher case, affirmative action is next in line . . . 

John Roberts, who has long sought to weaken the Voting Rights Act, wrote in the majority opinion that because voter registration among black voters is higher than it was at the time the Voting Rights Act was passed, the protections afforded by the Act are no longer needed. (Click here for Justice Ruth Bader Ginsburg’s scathing dissent, in which she wrote, “Hubris is a fit word for today’s demolition of the VRA. . . . The court errs egregiously by overriding Congress’s decision” to reauthorize the Act.) As though mere registration is the same thing as actually being able to vote, or your vote actually being counted. Ask the citizens of counties in Florida and Ohio in the contested elections of 2000 and 2004, or those who were forced to wait in interminable lines in 2008, 2012. The New Yorker’s Amy Davidson points out:

Ginsburg quoted an F.B.I. investigation of Alabama legislators who referred to black voters as “Aborigines” and talked about how to keep them from the polls: “These conversations occurred not in the 1870’s, or even in the 1960’s, they took place in 2010.”

The United States Senate approved an extension of the law in 2006 by a  98–0 vote, and the House by a 390–33 vote; 33 Republicans (all white men, except one white woman, from North Carolina) voted against it. Former President George W. Bush, who nominated Roberts as chief justice, said many fine words about the importance of the Voting Rights Act in a ceremony at the White House. If you watch the videotape he sounds sincere; perhaps he was. Had the Voting Right’s Acts provisions been truly observed and enforced in the election of 2000, however—and had a similar 5–4 Supreme Court decision not ruled that Florida’s recounting of votes be stopped—George W. Bush would not have been in the White House.

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