“Juries And Racial Bias”: The Supreme Court Cracks Down On Racist Prosecutors
The Supreme Court tends to expend more energy detangling questions of law than it does sorting through questions of fact. But on May 23rd, in a decision that could spare the life of a death-row inmate in Georgia, the justices took a microscope to the jury selection process in the trial of Timothy Tyrone Foster, a black man sentenced to die by an all-white jury in 1987 for murdering an elderly woman a year earlier. After examining evidence that emerged in 2006, the justices decided, by a 7-1 vote, that prosecutors were illicitly motivated by racial bias when they struck two blacks from Mr Foster’s jury pool. Justice Clarence Thomas, the lone dissenter, wrote that there were “credible” non-racist reasons for dismissing them from the list of potential jurors; his colleagues’ dive into a three-decade-old trial, Justice Thomas charged, was “flabbergasting”.
In his majority opinion in Foster v Chatman, Chief Justice John Roberts methodically marched through rather damning evidence that the men prosecuting Mr Foster were hell-bent on keeping black people off the jury. The prosecutors’ notes during voir dire (jury selection) showed certain names highlighted in green, a colour that, the legend helpfully explains, “represents blacks”. The prospective black jurors were labelled “B#1”, “B#2” and “B#3” with capital letter “N” (meaning “no”) written next to each. All of the prospective jurors were asked to fill out a questionnaire including a question about their race; on the black individuals’ answer sheets, prosecutors drew attention to their race by circling the answer. And one of the lawyers scribbled out this sentiment: “If it comes down to having to pick one of the black jurors, [this one] might be okay”.
All of this, Mr Foster’s lawyer said at the November oral argument, adds up to “an arsenal of smoking guns” that race was at the forefront of the prosecutors’ minds. Such bias, the Supreme Court decided in Batson v Kentucky, a ruling that came down a year before Mr Foster’s trial, is impermissible during jury selection. When eliminating potential jurors via peremptory challenges (as opposed to challenges “for cause”), lawyers can be called upon to present a race-neutral explanation for their strikes. Mr Roberts wrote that the Georgia Supreme Court had “clearly erred” when it determined that racial considerations played no part in the selection of the jury. The host of reasons cited for nixing the black jurors—too young to care about a 79-year-old victim, too (apparently) bored, too shifty-eyed, too biased by relatives who were social workers—were not persuasive, as they applied just as readily to several non-black prospective jurors who were not challenged. These justifications, the court held, were mere pretext. Add to this “the shifting explanations, the misrepresentations of the record and the persistent focus on race in the prosecution’s file” and the justices are “left with the firm conviction that the strikes…were motivated in substantial part by discriminatory intent”.
Very late in the game, and in the face of all those smoking guns, Georgia tried to defend the apparently racist strikes with a brazenly duplicitous mind-game defence. The prosecutors were keenly aware that they would be held to a higher standard since Batson had been decided just a year earlier. They called such flamboyant attention to the race of the prospective jurors only so they could keep track of the black jurors in the event they were called upon to supply a race-neutral reason for their dismissal. This argument, Mr Roberts wrote, “falls flat” and “reeks of afterthought”, since it had not been made “in the nearly 30-year history of this litigation: not in the trial court, not in the state habeas court, and not even in the state’s brief in opposition to Foster’s petition for certiorari”. All the lights and whistles flagging the individuals’ race, he wrote, “plainly demonstrates a concerted effort to keep black prospective jurors off the jury.”
That the sole African American member of the Supreme Court bench saw the case so differently is less surprising than it might seem. In recent rulings, Justice Thomas has found himself increasingly alienated from his seven colleagues. Three times in the past two weeks, he has cast a lonely dissenting vote from an otherwise unanimous decision. But the implications of his colleagues’ ruling in Foster v Chatman remain to be seen. Mr Foster can ask for a new sentencing trial, but he has no guarantee another jury will be more lenient. And it’s unclear how much of a constraint Foster will be moving forward. Prosecutors are on notice that incriminating notations during jury selection are a very bad idea. That may lead, on the margins, to less racial discrimination in the criminal justice system—but it will do little to curtail subtler methods of jury manipulation.
By: Steve Mazie, The Economist, May 23, 2016
“The Ghost Of Section 5 Haunts Our Elections”: 2016 Is Proof We Needed The Voting Rights Act
Most political watchers awoke yesterday morning to the news that Eric and Ivanka Trump would be unable to vote for their father in the upcoming New York state primary because they didn’t file as members of the Republican Party by October. This little-known New York rule could have a huge impact on the candidacies of Donald Trump and Bernie Sanders, both of whom are drawing voters from outside the traditional party structure, since 27 percent of the state’s voters are registered outside the Republican and Democratic parties. If they didn’t declare a party affiliation by October 9, they won’t be voting in the state’s primary.
Much of the reaction to the plight of Trump’s children was reflections on the Trump campaign’s disastrous ground game, but that misses the point: vast numbers of voters will be forced to navigate purposefully arcane rules this election season, everything from restrictive voter ID laws to altered voting schedules to decreased numbers of polling places.
Why? The 2016 presidential elections will be the first since the 2013 decision by the Supreme Court to weaken Section 5 of the Voting Rights Act.
Section 5 mandated that states and localities with a history of racial discrimination receive permission from the federal government before enacting any changes to their voting laws; states like Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia, and a variety of other townships and counties around the country.
While Section 5 initially applied to states that imposed restrictive measures such as literacy tests, Congress later expanded the law to jurisdictions with sizable minority populations that used English-only election materials. States were only removed from the pre-approval list after 10 years of by-the-book elections.
Today, the ghost of Section 5 haunts our elections.
In North Carolina, which has been under fire for a variety of issues over the past few years, Republican-backed legislation has “included a reduction in early-voting days and ended same-day registration and preregistration that added teenagers to voting rolls on their 18th birthday.”
Recently in North Carolina, an attempt to gerrymander black voters into large congressional districts (to minimize their overall influence) backfired when it was found in federal court to be discriminatory — five weeks before primary elections for the illegal districts took place. While a separate congressional primary will be held June 7, the mix-up will have a tangible impact on voter turnout, given that people sometimes have to take time off, wait in long lines, and meet registration deadlines to vote.
Another recent example can be found in Arizona, whose presidential primary was a complete disaster, with some voters waiting in line for over five hours. Some didn’t wait around long, leaving without casting a vote at all. In a measure to allegedly cut costs, “election officials in Phoenix’s Maricopa County, the largest in the state, reduced the number of polling places by 70 percent from 2012 to 2016, from 200 to just 60—one polling place per every 21,000 voters,” according to The Nation.
The situation was so dire in other parts of Arizona that people passed out from sunstroke, had their party affiliation allegedly changed from Democrat to Independent, and never received mail-in ballots. Maricopa County was previously one of the counties identified under Section 5 as requiring pre-approval, due to a history of discrimination. Minorities make up 40 percent of the county’s population. Before 2013, Arizona would have had to submit the closing of polling places for review, and likely would have been denied, given Section 5 had previously blocked 22 voting changes from taking effect in Arizona.
Finally, we can also look at the state of Texas, where the state legislature passed a stringent voter ID law following the invalidation of Section 5 that the federal government had previously blocked using the same law. As a result, over 600,000 voters in the state will likely have to go through a more onerous voting registration procedure because they lack one of the forms of ID eligible under that law, if they are able to vote at all. While a federal appeals court ruled in August that the voter ID law had a discriminatory impact, Texas is currently appealing its case to a full appeals court, in the hopes it will not need to change the implementation of the law, which will remain in place as-is while the appeals process continues.
It’s clear that we are missing key protections from Section 5 that would have ensured more reasonable and less discriminatory voting processes at the state and local level. Now that states and localities with a history of discriminatory voting practices don’t need pre-approval to enact changes in their laws, many of them have simply passed the very same laws they were prevented from enacting for decades, and more still have enacted new laws meant to suppress the vote. In 2016, we need the full force of the Voting Rights Act more than ever. In its absence, the integrity the democratic process is in question.
By: Benjamin Powers, The National Memo, April 12, 2016
“Jeb Bush Balks At Voting Rights Push”: The More Salient Question Is Whether Voting Rights Have Improved Since 2008
In March, President Obama delivered a powerful speech in Selma, Alabama, where he, among other things, called for Congress to restore the Voting Rights Act. Former President George W. Bush was on hand for the event, and to his credit, the Republican president who last reauthorized the VRA stood and applauded Obama’s call.
If we’re looking for areas in which Jeb Bush disagrees with his brother, we appear to have a new addition to the short list.
The former Florida governor appeared yesterday in Iowa and was asked by an audience member about the Voting Rights Act. Jeb Bush responded:
“I think if that it’s to reauthorize it to continue to provide regulations on top of states, as though we were living in 1960, because those were basically when many of those rules were put in place, I don’t believe that we should do that. There’s been dramatic improvement in access to voting – I mean exponentially better improvement.
“And I don’t think there’s a role for the federal government to play in most places – could be some, but in most places – where they did have a constructive role in the ‘60s. So I don’t support reauthorizing it as is.”
It’s safe to say that’s not quite what voting-rights advocates hoped to hear from the Republican presidential hopeful.
Bush’s answer, at a certain level, was confusing, though it wasn’t entirely his fault. He was responding to a questioner who specifically asked about “reauthorizing” the VRA, though that’s not what’s on the table – George W. Bush already reauthorized the VRA through 2031. When Jeb said he doesn’t support “reauthorizing it as is,” that didn’t really make substantive sense.
What is on the table is a bipartisan bill to help restore some of the provisions of the Voting Rights Act that were gutted by conservative Supreme Court justices. We can’t say with certainty what Bush thinks about the legislation – that’s not what he was asked – though in context it was obvious that Jeb is comfortable with the high court’s ruling from two years ago.
MSNBC’s Zach Roth tried to flesh out the implications of Bush’s position.
[Bush argued] that he doesn’t see a role for the federal government on voting issues in most places. That seems to suggest that he opposes the parts of the VRA left in tact by the Supreme Court – most prominently, the provision that continues to bar racial discrimination in voting and applies nationwide. It would also mean that Bush opposes other important federal voting laws, like the National Voter Registration Act, also known as the “Motor Voter” law, which requires states to offer voter registration opportunities at the DMV and public assistance agencies.
That’s a position that some on the right hold. The platform of the Texas Republican Party, for instance, calls for repeal of the VRA and Motor Voter, and calls another important federal voting law, the Help America Vote Act of 2002, unconstitutional. But it would put Bush way out of the mainstream on the issue, even among most conservatives, who accept that there’s still a role for the federal government to play in protecting access to the ballot.
As for Jeb’s assertion that access to the polls has improved over the last 65 years, there’s no denying the accuracy of the claim. Perhaps the more salient question, however, isn’t whether or not conditions are better than they were in 1960, but rather, whether voting rights have improved since 2008.
By: Steve Benen, The Maddow Blog, October 9, 2015
“New Voting Laws Show That The Struggle Continues”: Pointing To A Growing Lack Of Respect For Individual Voting Rights
Growing up in Mississippi more than 50 years ago, Sammie Louise Bates had to help her grandmother count the money needed to pay poll taxes. Living under Jim Crow laws angered Bates — and inspired her to become a lifelong voter.
Bates was 25 when the Voting Rights Act passed in 1965, abolishing poll taxes and other discriminatory voting practices. For most of her life she did not face hurdles to the ballot box like her grandmother did.
But in 2013, that changed. Bates was no longer able to vote because her home state of Texas passed a new restrictive voter ID law. To get an acceptable photo ID, she first needed to pay $42 for a birth certificate. The cost was too much: “We couldn’t eat the birth certificate,” she testified in a lawsuit, “and we couldn’t pay rent with the birth certificate.”
Bates is an example of the hundreds of thousands, perhaps even millions, of Americans who now face difficulties voting because of new state laws restricting the right to vote. On the 50th anniversary of the Bloody Sunday march, which galvanized support for the VRA, these Americans remind us that the struggle is not over.
After decades of progress, the past five years has seen the most extensive attack on voting rights since the VRA was signed into law. Since 2011, every state but one has considered legislation that would make it harder for many eligible citizens to vote, and half the states passed new voting restrictions. By the 2014 election, after lawsuits and repeal efforts, voters in 21 states faced tougher voting rules than they did in 2010.
These new voting restrictions — which go beyond Texas-style photo ID laws and include things like early voting cutbacks and voter registration restrictions — apply to everyone. But they are not neutral in their impact. While most people do have a driver’s license or a similar state-issued photo ID, for example, the 11 percent of Americans who do not are disproportionately African-American and Latino.
And while most people still vote on Election Day, minorities make up a disproportionate number of those who voted on the weekend and other early voting days cut in states like North Carolina and Ohio. The net effect of these changes is a voting system that is less accessible to minorities, especially those with modest incomes.
A federal court found last year that Texas’s photo ID law was passed for the purpose of discriminating against the state’s minority voters.
In at least some states, this effect is not an accident. A federal court found last year that Texas’s photo ID law was passed for the purpose of discriminating against the state’s minority voters. (That case is now on appeal.)
Race has played a significant role elsewhere as well. The push to restrict voting came after a surge in participation among African-Americans and certain other groups in 2008. Recent studies found that the more a state experienced increases in minority and low-income voter turnout, the more likely it was to push and pass laws cutting back on voting rights. The Brennan Center similarly found that of the 11 states with the highest black turnout in 2008, seven passed laws making it harder to vote. Of the 12 states with the largest Hispanic population growth in the 2010 Census, nine states did so. And of the 15 states that used to face special monitoring under the VRA because of a history of racial discrimination in elections, nine states passed laws that make it more difficult to vote.
Unfortunately, efforts to restrict voting show no signs of abating. In the first few weeks of this year, legislation was introduced in 17 states and already progressed in two.
All this points to an urgent and continuing need for strong legal protections for voting rights — protections sought and won by the brave marchers 50 years ago in Selma. But here’s the rub: in the midst of a controversial and racially-charged battle over voting rights, the US Supreme Court gutted a core provision of the VRA. The net result has been not only a loss of voter protections in the courts but also a marked increase in discriminatory voting changes in states that used to be covered by the law. This contributes to a growing lack of respect for voting rights — arguably the defining feature of American democracy.
So what can we do? For starters, urge Congress to update and restore the Voting Rights Act. Urge your state not to pass retrograde voting restrictions, and instead to modernize the voter registration system and adopt other sensible improvements like those recommended by a recent bipartisan presidential commission. And join the tens of thousands of Americans flocking to Selma this week in honoring one of our nation’s greatest accomplishments — the recognition of the equal right to vote for every eligible American.
We have come a long way, but we still have farther to go.
By: Wendy Weiser, Director, The Democracy Program at The Brennan Center for Justice: Bill Moyers Blog, Moyers and Copany, March 6, 2015
“The Summer Of Voting Discontent”: Texas’ Voter ID Laws Are Plain And Simple Discrimination
Last month, the Department of Justice sued Texas over the state’s discriminatory and punishing voter ID law, SB 14. The same law was blocked by a federal court last summer, which determined that a “law that forces poorer citizens to choose between their wages and their franchise unquestionably denies or abridges their right to vote.”
In a state and country where voters of color are significantly more likely to live in poverty than white voters, the impermissible choice that Texas has imposed on voters discriminates on the basis of class and race both. In the wake of Supreme Court’s decision earlier this summer in Shelby County, Alabama v. Holder, which immobilized a key provision of the Voting Rights Act, the Department of Justice’s lawsuit represents the next phase in pushing back against measures that are intended to make it harder for people of color to vote, and less likely that our votes will count when we do.
Texas, like many states, passed SB 14 for the ostensible reason of combating in-person voter fraud, which Hillary Rodham Clinton recently called a “phantom epidemic.” But Texas has not been able to identify a single instance of in-person voter fraud. Texas has said that the law is not intended to discriminate against Black and Latino voters, whose communities represent 90 percent of the state’s population grown in the past decade, and yet the state’s legislature refused to accept any of the amendments offered that would have mitigated any of SB 14’s burdens that disproportionately affect voters of color — amendments that, for example, would have created a way for poor voters to get free identification, or would have accepted student IDs.
A single comparison of the accepted and not accepted forms of photo ID makes the priorities of the law clear: SB 14 will allow voters to present a concealed handgun license at the polls, but not a student ID from any of Texas’s public universities.
In addition to challenging the discriminatory ID law itself, the DoJ lawsuit also seeks to bail Texas in to a preclearance structure similar to the one that was lost in the Shelby County decision. Texas’s longstanding history of crafting discriminatory voting laws and schemes extends far past the voter ID law at issue now; in fact, Texas boasts the inglorious accolade of being the only state for which federal authorities have challenged at least one of its statewide redistricting plans after every decennial census since 1970.
As recently as last year, a federal court concluded that the state had drawn up its various redistricting plans with the intent to suppress the growing political power of African-American and Latino districts. A provision of the Voting Rights Act asserted in the DOJ’s case can bring back to Texas the preclearance defense lost in June’s Shelby County decision.
As the summer of our voting discontent draws to a close, it should serve as a powerful message that the first major voting lawsuit filed by the DOJ since the Shelby County decision goes directly to a state with one of the most well-documented histories of racial discrimination in voting, and seeks to use the full power of the remaining provisions of the Voting Rights Act both to invalidate SB 14 and to bring Texas back under federal review.
By: Natasha Korgaonkar, Assistant Counsel of the Political Participation Group at the NAACP’s Legal Defense Fund, U. S. News and World Report, September 3, 2013
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