In Dreadful Decision, Supreme Court Cripples the Voting Rights Act

Americans historically have shown a dislike for our democracy, all the while preaching its virtues, of course. We constantly try to subvert it by enacting state-level laws that favor local interests or prejudices.

The Voting Rights of Act was enacted in 1965 to stand in the way of self-serving skulduggery that threatens this democracy. Its Section 2 enabled the Justice Department to go after any state that engaged in discriminatory voting processes or rules. But in recognition of particular bad actors, Section 5 made nine states — almost all in the South — subject to “preclearance”: any change in their voting laws must obtain prior approval by the Justice Department. Parts of seven other states must also pass muster in advance. Even conservative George Will views the Act as “the 20th century’s noblest and most transformative law.”

Congress has seemingly agreed, reauthorizing the law four times — in 1970, 1975, 1982 and 2006 — dates that tell you that Republican presidents signed onto all of them. The 2006 re-authorization, signed by George W. Bush, passed by 390–33 in the House and 98–0 in the Senate. Without continuance, said Congress’s resolution, “racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last forty years”.

And yet, less than seven years later, the Supreme Court elected to hear a suit brought by Shelby County, Alabama, that argued that Section 5 impinges on federalism too greatly, that states have “the constitutional prerogative to regulate their own elections” and that good behavior makes preclearance no longer necessary.

This claim does not square with the U.S. attorney general having to block 2,400 discriminatory voting changes arising from 750 Section 5 complaints from 1982 to 2006. Nor does it square with extensive attempts at enact vote suppression laws prior to the 2012 election that had even broken out in states not covered by Section 5 such as Ohio and Pennsylvania. Nor does it square with the extensive reconfiguration of election districts that rigged the counts of representatives sent to the House this January (see related story).

Questions from the conservative wing of the court in the February 27th hearing prefigured what was to come in June. They paid little attention to these continuing attempts to manipulate democracy, with even swing-voter Justice Kennedy asking whether Alabama, and by inference the other nine states, must live "under the trusteeship of the United States government" and Justice Scalia calling Section 5 "racial entitlement".

The contagion of voting law manipulation is spreading, not receding. This article on the Voting Rights Act cites Attorney General Eric Holder saying that there have been more lawsuits challenging the constitutionality of Section 5 over the past two years than during the previous four decades.

Doing away with prior approval has left the Justice Department to battle discriminatory practices after-the-fact in courts across the nation, with the damage already done by then in elections that cannot be unraveled. The burden now shifts to Justice to prove that a practice or law had a discriminatory effect, which is a much more difficult hurdle than blocking suspect changes to voting laws in advance.

We could see this attack on the Voting Rights Act coming. In a minor case brought by a small Texas utility, Chief Justice Roberts gave indication that he had reservations about the law when he wrote, “The historic accomplishments of the Voting Rights Act are undeniable, but the Act now raises serious constitutional concerns”. Not Section 5, note, but “the Act”. The Nation dug into Roberts’ days as a young lawyer in the Reagan Justice Department to find that Roberts held that “violations of Section 2 should not be made too easy to prove”. Roberts proposed that proof of discriminatory intent, rather than discriminatory effect, should be the obstacle that the Justice Department must clear. Intent is easily denied (“really, your honor, we didn’t mean to discriminate”) and difficult to prove.

In advance of the 2012 election we saw state governments attempt and succeed in throwing up barriers to inhibit from voting blacks, Latinos and students. Nineteen states sought to require photo IDs, states like Ohio curtailed early voting, Florida forbade voter registration on Sundays, when black communities traditionally conduct sign up drives after church. Other states, taking advantage of the once-a-decade opportunity afforded by the census, redrew election districts to corral as many as possible opposition party voters into as few as possible districts to render them impotent. The five on the Supreme Court — the usual right-wing four plus Kennedy — have willfully turned a blind eye to all of this, absurdly maintaining, in the face of last year's tumult, that Section 5 of the Act has done its job and is no longer needed. We will now see all of these voter suppression tactics rage unchecked.

First Citizens United and now this, in the Court's campaign to undo our democracy.