“John Roberts, Pitcher And Batter”: The Voting-Rights Decision Spells The End Of Fair Elections
The Supreme Court delivered a sucker punch to fair elections today, striking down a key part of the Voting Rights Act. It is a ruling that will make it much easier for partisan election officials and legislators to rig the voting system — and a lot harder for ordinary voters to participate in democracy.
The ruling is also a huge Supreme Court power grab. How big? In 2006, Congress reauthorized the Voting Rights Act by a vote of 98-0 in the Senate and 390-33 in the House (and President George W. Bush signed it into law). Now, five Justices have swept away the decision of all those elected leaders — over the vociferous dissent of four other Justices.
At his confirmation hearing, Chief Justice John Roberts — who wrote today’s majority opinion — famously declared that as a Justice, “my job is to call balls and strikes and not to pitch or bat.” But in nullifying one of the most important pieces of civil rights legislation in U.S. history, he picked up a bat and swung for the bleachers.
The part of the Voting Rights Act that the court held unconstitutional (Section 4) was a critical one: the formula that specifies which particular states and localities must clear significant voting changes in advance with the Justice Department. That process — “preclearance” — ensures that unfair voting rules can be stopped before they are allowed to interfere with actual elections.
An example of why it’s needed: in 2001, the all-white leadership of Kilmichael, Miss., abruptly canceled the town election when it looked like voters might elect the first black mayor. Using the Voting Rights Act, the Justice Department required that the election go forward — and a black mayor was elected. That was only one of more than 700 discriminatory voting changes the Justice Department blocked from 1982 to 2006.
The Supreme Court’s majority was troubled by the specific states and localities that the Voting Rights Act’s “preclearance” rules apply to. Why Alabama and not Vermont? Why Brooklyn and the Bronx, but not Lincoln, Neb.? The simple answer is that these are the jurisdictions Congress chose after careful consideration. It held 21 hearings and heard from scores of witnesses — it produced a 15,000-page record — before reauthorizing the law in 2006. Without doing any of that work, five Justices have said they know better.
Now that the formula has been thrown out, the whole process of preclearance is effectively thrown out as well. In theory, Congress could come up with another formula — and a list of states and localities — that the Supreme Court would find constitutional. But it would be a legislative nightmare for Congress to try to do that — and no one expects that to happen anytime soon.
So what does the gutting of the Voting Rights Act mean for American democracy? It will be easier for bad-apple election officials to revive classic vote-suppression tactics — like moving polling places at the last minute, so voters cannot find them, or getting eligible voters off the rolls. And it will be easier for state legislatures to draw district lines to divide up minority voters and dilute their power at the polls.
The majority dismisses all these very real concerns, arguing that “things have changed” since the bad, pre-civil-rights-era days. Of course, even if that were so, it would not mean that we don’t need the Voting Rights Act. As Justice Ruth Bader Ginsburg wrote for the dissenters, that sort of logic is “like throwing away your umbrella in a rainstorm because you are not getting wet.” Now that the Supreme Court has gutted the Voting Rights Act, we should get ready for an antidemocratic downpour.
By: Adam Cohen, Time, June 25, 2013
“Marching Back Across The Bridge”: Once Again, White Southerners Get To Decide Who’s Worthy To Vote
With a kind of sick fascination, I’m trying to keep track with how rapidly southern Republicans take advantage of yesterday’s Supreme Court decision striking down Section 4 of the Voting Rights Act to restrict the franchise. You’d think after years of claiming that Section 4 and Section 5 were unnecessary, they’d pause a decent interval before proving the point of voting rights advocates that prior review of voting changes in the Deep South were a practical necessity. But oh no, per this AP story from Bill Barrow:
Across the South, Republicans are working to take advantage of a new political landscape after a divided U.S. Supreme Court freed all or part of 15 states, many of them in the old Confederacy, from having to ask Washington’s permission before changing election procedures in jurisdictions with histories of discrimination.
After the high court announced its momentous ruling Tuesday, officials in Texas and Mississippi pledged to immediately implement laws requiring voters to show photo identification before getting a ballot. North Carolina Republicans promised they would quickly try to adopt a similar law. Florida now appears free to set its early voting hours however Gov. Rick Scott and the GOP Legislature please. And Georgia’s most populous county likely will use county commission districts that Republican state legislators drew over the objections of local Democrats.
Meanwhile, in Washington, House Majority Leader Eric Cantor was a lonely Republican voice indicating, however nonspecifically, an interest in congressional action to “fix” Section 4. From the House Speaker and the Senate Majority Leader, we’ve heard crickets. And across the South, we’ve heard cheers from Republicans eager to return to a time when the feds didn’t interfere with the sovereign ability of white southerners to decide who was worthy to vote. It’s like watching a tape of the 1965 march across the Edmund Pettis Bridge in Selma in reverse.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, June 26, 2013
“The Consequences Of One Vote Majorities”: In 2016, Remember This Week At The Supreme Court
It’s been a week of mixed emotions for those of us who care about civil rights. There was the elation today when the Supreme Court overturned the so-called Defense of Marriage Act — the discriminatory law that has hurt so many Americans in its nearly 17 years of existence — and let marriage equality return to California. There was the anger when the Court twisted the law to make it harder for workers and consumers to take on big corporations. And there was the disbelief and outrage when the Court declared that a key part of the Voting Rights Act that was so important and had worked so well was now somehow no longer constitutional.
But throughout the week, I have been reminded of one thing: how grateful I am that Mitt Romney will not be picking the next Supreme Court justice.
It remains true that this Supreme Court is one of the most right-leaning in American history. The majority’s head-in-the-sand decision on the Voting Rights Act — declaring that the VRA isn’t needed anymore because it’s working so well — was a stark reminder of why we need to elect presidents who will nominate Supreme Court justices who understand both the text and history of the Constitution and the way it affects real people’s lives.
We were reminded of this again today when all the conservative justices except for Anthony Kennedy stood behind the clearly unconstitutional DOMA. Justice Antonin Scalia — no stranger to anti-gay rhetoric — wrote an apoplectic rant of a dissent denying the Court’s clear role in preserving equal protection. If there had been one more far-right justice on the court, Scalia’s dissent could have been the majority opinion.
Just think of how different this week would have been if Sonia Sotomayor and Elena Kagan were not on the court and if John McCain had picked two justices instead. We almost certainly wouldn’t have a strong affirmation of LGBT equality. Efforts to strip people of color of their voting rights would likely have stood with fewer justices in dissent. And the rights of workers and consumers could be in even greater peril.
As the Republican party moves further and further to the right, it is trying to take the courts with it. This week, we saw what that means in practice. As we move forward to urge Congress to fix the Voting Rights Act and reinforce protections for workers and consumers, and work to make sure that marriage equality is recognized in all states, we must always remember the courts. Elections have real consequences. These Supreme Court decisions had less to do with evolving legal theory than with who appointed the justices. Whether historically good or disastrous, all these decisions were decided by just one vote. In 2016, let’s not forget what happened this week.
By: Michael B. Keegan, The Huffington Post, June 26, 2013
“A Conservative Dream Comes True”: The Supreme Court Dismisses History And The Lessons Of “Bloody Sunday”
In a 5-4 decision, the Supreme Court has thrown out Section 4 of the Voting Rights Act, the historic law first passed in the days after 1965′s Bloody Sunday in Selma, Alabama.
The ruling voids the formula to determine which jurisdictions require “pre-clearance” from the federal government before they make any changes to their voting laws, effectively freeing officials to alter voting procedures at will until Congress authorizes a new formula.
The Voting Rights Act has been renewed by Congress several times. The last was in 2006, when a Republican House voted 390-33 and a Republican Senate voted 98-0 to send a renewal that authorized the law for 25 years to President George W. Bush for his signature. Despite Congress deciding that the Section 4 formula was still relevant seven years ago, conservatives on the Court disagreed.
“In assessing the ‘current need’ for a pre-clearance system treating States differently from one another today, history since 1965 cannot be ignored,” Chief Justice John Roberts wrote in his majority decision for Shelby County v. Holder. After suggesting that the current formula is based on “40-year-old data,” he included a chart that demonstrated the success of the law when it comes to increasing registration among African-Americans.
However, just last year, courts based several decisions to block laws designed to suppress the minority vote in the 2012 general election on Section 5, which now holds no significance without Section 4. Despite the court’s intervention, voters in Florida had to wait as many as nine hours in line to vote.
Roberts wrote that Congress “may draft another formula based on current conditions,” which is highly unlikely given current partisan gridlock.
The Nation’s Ari Berman explains that the existing formula is extremely effective in determining jurisdictions that should require “pre-clearance”:
Six of the nine states fully covered by Section 5, all in the South, passed new voting restrictions after the 2010 election. “Section 5,” write law professors Christopher Elmendorf and Douglas Spencer, “is remarkably well tailored to the geography of anti-black prejudice.” Of the ten states where anti-black stereotypes are most common, based on data from the National Annenberg Election Survey, six in the South are subject to Section 5. Racially polarized voting and “explicit anti-black attitudes,” according to an AP survey, have increased since 2008. Arkansas and Virginia have passed strict new voter-ID laws this year, while North Carolina is considering a slew of draconian restrictions.
The states of Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia are all covered under the current formula. It also covers some counties in California, Florida, New York, North Carolina and South Dakota, and local jurisdictions in Michigan, all areas that have demonstrated historic discrimination against African-Americans, American Indians, Asian-Americans, Alaska Natives or Latinos.
The case brought by Shelby County was backed by “leading operatives and funders in the conservative movement along with Republican attorneys general in Alabama, Alaska, Arizona, Georgia, South Carolina, South Dakota and Texas.”
“Overturning Section 5 is in many respects the most important battle in the GOP’s war on voting,” according to Berman.
Think Progress‘ Josh Israel and Aviva Shen predict that the immediate impact of the demise of Section 4 will lead to stricter voter ID laws, racially gerrymandered legislative maps and blocking of grassroots get-out-the-vote efforts.
“All told, between 1982 and 2006, DOJ objections blocked over 700 voting changes based on a determination that the changes were discriminatory,” Justice Ruth Bader Ginsburg wrote in her passionate dissent that explicated several instances where “pre-clearance” had prevented discriminatory laws from taking effect.
“That determination of the body empowered to enforce the Civil War Amendments ‘by appropriate legislation’ merits this Court’s utmost respect,” Ginsburg summarized. “In my judgment, the Court errs egregiously by overriding Congress’ decision.”
“I am deeply disappointed with the Supreme Court’s decision today,” President Obama said in a statement. “For nearly 50 years, the Voting Rights Act – enacted and repeatedly renewed by wide bipartisan majorities in Congress – has helped secure the right to vote for millions of Americans. Today’s decision invalidating one of its core provisions upsets decades of well-established practices that help make sure voting is fair, especially in places where voting discrimination has been historically prevalent.”
After calling the Voting Rights Act “the cornerstone of the American civil rights movement,” Vice President Joe Biden said Tuesday,”“We’re going to work with Congress in this effort and the administration is going to do everything in our power to make sure that fair and equal voting processes are maintained.”
By: Jason Sattler, The National Memo, June 24, 2013
“Antonin Scalia Is Angry, Again”: The Only Principle That Guides Him Is What He Can Get Away With
Ten years ago, when the Supreme Court ruled that laws outlawing sodomy between consenting adults were unconstitutional in the case of Lawrence v. Texas, Justice Antonin Scalia wrote a blistering dissent. “What a massive disruption of the current social order,” he practically wailed from the page. He said that the Court had “largely signed on to the so-called homosexual agenda,” and contrasted the Court with the good people of America, who “do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.” And perhaps most notably, Scalia lamented that under the rationale the Court’s majority was using, the government wouldn’t be able to prohibit gay people from getting married. To each other!
He was right about that, anyway. But his dissent in today’s case invalidating the Defense of Marriage Act is a somewhat different beast. Scalia spends the first 18 pages of his 26-page dissent far from the moral questions that had so animated him before; instead, he confines himself to arguing that the Court shouldn’t have decided the case at all. Scalia is apparently deeply concerned that the Court is butting its nose in where the legislature should have the final say (more on that in a moment).
But when he finally gets to discussing the merits of the case, Scalia does not disappoint. While the rousing moral condemnations of homosexuality may be absent, Scalia deploys the cries of victimhood now so popular on the right with gusto. By forbidding us from discriminating against gays, you’re discriminating against us. By calling our prejudice against gays what it is, you’re injuring us.
Scalia is outraged at the majority’s contention that the core purpose of DOMA was to discriminate against gay people, and this, he asserts, means that they’re calling everyone who supports it a monster. “To defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution,” he writes.
And more: “It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.” Woah, there, buddy! Did anyone actually call you an enemy of the human race? Touchy, touchy.
But then Scalia updates his prediction from ten years ago, and he probably has a point: “It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will ‘confine’ the Court’s holding is its sense of what it can get away with.”
On this point, Scalia probably knows what he’s talking about. After all, this is a guy who, in a decision delivered just yesterday, helped gut the Voting Rights Act, one of the most important pieces of legislation ever passed by Congress and one that was reauthorized in 2006 by votes of 390-33 in the House and 98-0 in the Senate, yet spends two-thirds of this very dissent arguing that the Supreme Court is a bunch of black-robed tyrants when they invalidate a law passed by Congress. In other words, despite his carefully cultivated reputation as a principled “originalist,” the only principle that guides Antonin Scalia is “what he can get away with.” For him, it’s the outcome that matters. The justification comes after. Is that true of the Court’s liberals as well? Maybe. But it’s a little rich to make that charge when your own hypocrisy is on such obvious display.
By: Paul Waldman, Contributing Editor, The American Prospect, June 26, 2013
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