I am going to take a look at a fairly representative right-wing way of looking at the Supreme Court’s 5-4 ruling in Shelby County v. Holder. It’s part dishonesty and part self-delusion. The author is Jonathan Tobin who writes for Commentary. He begins by accusing the left of hyperbole.
Listen to the hue and cry from liberals over the Supreme Court’s decision today in Shelby County v. Holder and you would think the conservative majority had just overturned Brown v. Board of Education or declared discrimination on the basis of race to be legal. Of course, the 5-4 decision on the future of the Voting Rights Act did nothing of the kind.
As I pointed out in a prior post, Justice Ginsburg’s dissent discusses the Congressional Record from the 2006 reauthorization of the Voting Rights Act. Congress discovered roughly 1,800 instances between 1982 and 2006 in which areas covered by Section 4 of the Act were prevented from enacting voting laws that were discriminatory in nature. That averages out to 67 attempts to discriminate per year, every year, for 24 straight years.
There are three sections of the Voting Rights Act that are directly relevant to the Supreme Court’s ruling. Section 2 of the Act allows anyone from any jurisdiction to challenge a governmental entity that attempts to discriminate in the electoral process. But this is almost always done after the fact. Someone was denied the right to vote, or a class of people had their vote suppressed, or districts were used that were discriminatory in nature. Section 4 defines which areas of the country have a history and record of racial discrimination and
must get advanced clearance under Section 5 in order to make any changes in their election laws.
The Supreme Court invalidated the formula that Congress used to craft Section 4, which means that no jurisdictions are currently subject to Section 5. If the law had been the way it is now between 1982 and 2006, all 1,800 violations would have had to have been addressed under Section 2, which would have almost always have been too late. Moreover, the Department of Justice probably would not have brought action in many of those cases due to lack of resources and information, meaning that individual citizens would have had to spend their own resources if they wanted justice.
So, keep this in mind when you read this next part.
The high court not only reaffirmed the validity of the act but also even left in place Section 5, which created a mechanism that would require pre-clearance by the federal government of any changes in voting procedures in states and localities that were deemed by Congress to be habitual violators of the right to vote. But what it did do was to declare the existing formula stated in Section 4 to be the places where such scrutiny would be carried out to be unconstitutional.
Without Section 4, affirming the validity of Section 5 is meaningless. What follows, closely hews to Chief Justice Roberts’ reasoning, but it’s fatally flawed.
The reason for this is so obvious that it barely deserves to be argued: the Jim Crow south that Congress put under the federal microscope five decades ago isn’t the same place today. If there is to be a formula that would require some places to get the government’s prior permission to do anything that affects voting, it should be one based on the current situation, not one crafted to deal with the problems faced by Americans during the Lyndon Johnson administration.
Again, you can see how wrong this by looking at Ginsburg’s dissent where she discusses the formula.
Congress may have been charged with rigidity had it afforded covered jurisdictions no way out or ignored jurisdictions that needed superintendence. Congress, however, responded to this concern. Critical components of the congressional design are the statutory provisions allowing jurisdictions to “bail out” of preclearance, and for court-ordered “bail ins.” See Northwest Austin, 557 U. S., at 199. The VRA permits a jurisdiction to bail out by showing that it has complied with the Act for ten years, and has engaged in efforts to eliminate intimidation and harassment of voters. 42 U. S. C. §1973b(a) (2006 ed. and Supp. V). It also authorizes a court to subject a noncovered jurisdiction to federal preclearance upon finding that violations of the
Fourteenth and Fifteenth Amendments have occurred there. §1973a(c) (2006 ed.).
A jurisdiction included under Section 4 could take steps to get removed from preclearance requirements under Section 5. And a jurisdiction not included under Section 4 could be placed there if they demonstrated a pattern of systemic racial discrimination. The list of covered jurisdictions was not based on the Johnson Era.
Having made his argument in favor of the ruling, Mr. Tobin then turns to explaining the Democrats’ reaction, but he engages in classic projection.
Why then are political liberals and the so-called civil rights community so riled up about the decision? Some are merely offended by the symbolism of any alteration in a sacred piece of legislation. But the reason why the left is howling about this isn’t so much about symbolism as it is about their ability to manipulate the law to their political advantage.
Enforcing civil rights and protecting people’s voting rights is not a manipulation of the law, but the enforcement of the law. It is not the Democrats’ fault that a honest effort to protect people’s voting rights is to their political advantage.
Under the status quo, enforcement of the Voting Rights Act isn’t about reversing discrimination so much as it is in applying the political agenda of the left to hamper the ability of some states to enact commonsense laws, such as the requirement for photo ID when voting or to create districts that are not gerrymandered to the advantage of liberals.
By insisting that protecting people’s right to vote is part of a liberal “political agenda,” Mr. Tobin gives away the game. After all, the entire point of voter photo ID requirements is to gain a political advantage by disproportionately taking away the votes of young people (who move a lot), people who don’t drive (primarily urban, and heavily black, Latino, and Asian), and women (whose ID may be in a maiden or some other former name). Since voter fraud doesn’t exist, there is no other point to these laws and it doesn’t matter whether or not proposing them is “commonsense” or not.
By ending pre-clearance until Congress puts forward a new scheme rooted in evidence of systematic discrimination going on today, it has placed all states on an equal footing and made it harder for the Obama Justice Department to play politics with the law. It has also given racial hucksters that continue to speak as if a nation that has just re-elected an African-American president of the United States was little different from the one where blacks couldn’t vote in much of the country.
The Obama administration had not been playing politics with the Voting Rights Act. In fact, any covered jurisdiction that wants to change a voting law can go to the DC District Court. That’s what Texas did with their redistricting plan. The DC Circuit ruled that the Texas redistricting plan was intentionally discriminatory. But the Texas attorney general has announced that he intends to go ahead with the plan now that he doesn’t need preclearance. Also, that thing about “racial hucksters” isn’t a sentence, but I understand Mr. Tobin’s point. He seems to think the election of a black man redeems those 1,800 efforts to racially discriminate. He thinks the people who voted for Obama cleansed the sins of the people who didn’t.
The reality of 2013 is that even the left is hard pressed to find anyplace in the country where anyone who is legally entitled to vote and wants to exercise their franchise is being prevented from doing so. Stating that is not to deny that racism still exists in some quarters of American society anymore than any other species of hatred. Nor does it imply that our electoral system is perfect or incapable of betterment. But to leave in place a legal formula that treated some states differently than others solely because of history is not only absurd, it is unconstitutional discrimination.
It’s actually not hard to find people who can’t vote. What does Mr. Tobin think provisional ballots are for? What does Mr. Tobin think happens when someone gets turned away from the polls because the address on their ID doesn’t match the address on their voter registration form?
Opponents of the majority decision claim this is a judicial usurpation of the prerogative of the legislature since Congress has re-authorized the Voting Rights Act without changing the formula that placed all or parts of 15 states under the Justice Department’s control with regard to voting. But that is due to the fact that the vote to retain the act became a ritual by which members were forced to prove their anti-racist bona fides, not a rational debate about the actual provisions of the law. Congress lacked the courage to face facts on a part of the law that had past its expiration date, so the court was forced to deal with it.
I understand the concept of the Court having to do something because Congress couldn’t deal with it. Good examples are Brown v. the Board of Education and Roe v. Wade. But that was not the case here. If voting for the Voting Rights Act is not a matter of personal pride it should at least be something nobler than proving your “anti-racist bona fides.”
Mr. Tobin concludes:
Neither this decision nor the debate that will follow it will affect the ability of Americans to vote because that is a right that is no longer in dispute. What it will do is send a reminder to Americans that we have moved on from our unhappy past and that if we are to protect voting rights, it must be done on the basis of reality rather than sentiment or symbolism. That will make it harder for the left to accuse their opponents of racism without basis. But an American society that has thankfully moved on from this debate will be better off for it.
Silly man, the Republicans did not not strike down the Voting Rights Act in order to make race less of a political issue. They did it to make it possible to win a few more elections before they go the way of the Whigs.
