“Polarization And Voting Rights”: A Temptation To Voter Suppression That Republicans Just Can’t Resist
The 48th anniversary of the bloody beginning of the Selma March at the Edmund Pettis Bridge is as good a time as any to talk about the possibly imminent evisceration of the Voting Rights Act of 1965 by the U.S. Supreme Court (or at least five members of that Court).
At Larry Sabato’s Crystal Ball, Emory University’s Alan Abramowitz answers Justice Roberts’ recent question during oral arguments about the need for the “discriminatory” application of Section 5 by looking at recent evidence of racial polarization in voting in the states covered by that law. The abysmal performance of Republicans among nonwhite voters everywhere is so notable that it’s sometimes difficult to see the South as more polarized racially and politically than the rest of the country. But still, in as of 2008 (the last time we had national exit polls in a presidential election), nonwhite voters made up 62% of the Democratic coalition in the Section 5 states and only 35% in the rest of the country. And historically, there’s no question racial polarization has played a huge part in the Republican takeover of the Deep South, beginning with the hyper-racialized states of Mississippi, Alabama and South Carolina and then spreading to the rest of the region.
Speaking of the Republican takeover, however, Abramowitz makes a key point about the particularly poor timing of any judicially imposed abandonment of Section 5:
All nine covered states currently have Republican governors and Republican majorities in both chambers of their legislatures. This means that political leaders in these states have a powerful incentive to suppress or dilute the votes of African Americans and other minorities because these groups make up the large majority of the Democratic electoral base in their states. Moreover, as the majority party, they also have the ability to enact laws and regulations to accomplish these goals.
And they can do so, of course, without significant negative impact on their own voters. Even if you think the evidence of especially persistent racism in the Deep South is mixed, this is a temptation to voter suppression that no honest person can expect Southern Republicans to resist.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, March 7, 2013
“Vulnerability Of The Vote”: Insurance Against Racial Suppression Should Not Be On A Backwards Slide
An odd scene unfolded in Washington on Wednesday: as the president and leaders of Congress were dedicating a statue to Rosa Parks, the lifelong activist whose defiance on a Montgomery, Alabama, bus helped spark the Civil Rights Movement, across the street the Supreme Court heard oral arguments on one of the signature piece of civil rights legislation, the Voting Rights Act.
Specifically, the court heard the case of Shelby County v. Holder, in which that Alabama county seeks to overturn Section 5 of the Voting Rights Act, which was passed in 1965. That section requires states — and some municipalities — to get pre-clearance from the Justice Department or the District of Columbia federal court before making any changes to voting laws.
The fundamental question is whether states that have a history of voter suppression should forever have to live with the legacy of that past.
The problem with the law, in my mind, is that it should be expanded rather than struck down.
The Brennan Center for Justice at New York University maintains that “Section 5 is an essential and proven tool.” According to the center:
“Although progress has been made since the Voting Rights Act passed in 1965, voting discrimination still persists. Between 1982 and 2006 (when Congress overwhelmingly renewed the law), the Voting Rights Act blocked more than 1,000 proposed discriminatory voting changes. Without Section 5’s protection, these changes would have gone into effect and harmed minority voters.”
The center calls the passage of the Voting Rights Act “a reflection of the promise of our Constitution that all Americans would truly have the right to vote without facing discrimination, poll taxes, and other abuses,” and I wholeheartedly agree with that point of view.
The problem that the law may run into is that it’s too narrow.
In a 2009 ruling questioning the constitutionality of Section 5, Chief Justice John G. Roberts Jr. wrote:
“The evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions. For example, the racial gap in voter registration and turnout is lower in the States originally covered by Section 5 than it is nationwide.”
If the Voting Rights Act covered all states and not just some, Justice Roberts’s argument would be null. In fact, there is growing evidence that such a national requirement would be prudent. Many of the states that sought to install voter suppression laws leading up to last year’s election were in fact not covered by Section 5.
Roberts hammered this point home Wednesday during oral arguments, asking, “Is it the government’s submission that the citizens in the South are more racist than the citizens in the North?”
Seven of the nine states covered by Section 5 are in the south (Alabama, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia). The other two states are Arizona and Alaska. Some counties and townships are covered in other states.
The Southern states that Section 5 applies to span the Black Belt of the south, a region with the most glaring electoral abuses in the 1960s.
A November Pew Research Center report points out the obvious: blacks were the largest minority group in 1960, but that is no longer the case.
According to the report, blacks were 11 percent of the population, while Hispanics were 3.5 percent and Asians were .6 percent. Since then, the demographics of the country have changed dramatically. According to Pew, in 2011 blacks were 12 percent of the population, while Hispanics were 17 percent and Asians were 5 percent. And the numbers are projected to change even more. By 2050 Pew estimates that blacks will be only 13 percent of the population, while Hispanics will be 29 percent and Asians 9 percent.
To boot, Hispanics and Asians geographically dispersed differently than blacks.
We not only need to keep Section 5 in place, we also need to consider expanding it so that every voter has fair and equal access to the ballot. There are hurdles to achieving this goal, of course. The court might also find that it’s unconstitutional to broaden that section of the law, deeming it too onerous and an infringement on states’ rights — particularly those states that don’t have a demonstrable, endemic, systematic history of discrimination.
Still, it’s worth some thought.
During oral arguments, Justice Antonin Scalia went so far as to call Section 5 the “perpetuation of racial entitlement.” (That guy…) It’s not a racial entitlement, sir, but insurance against racial suppression.
In the president’s remarks at the statue dedication, he rightfully hedged his words. Instead of saying that because of people like Parks our children grow up in a land that is free and fair and true to its founding creed, he said that because of them it is “more free and more fair; a land truer to its founding creed.” (Emphasis mine.)
We’ve come a long way, but we’re not there yet, and the last thing we want or need now is to slide backward.
By: Charles M. Blow, Op-Ed Columnist, The New York Times, February 27, 2013
“Discrimination Is Real”: Section 5 Is Still Crucial To Maintaining Americans’ Right to Vote
Alabama gave us the Voting Rights Act when it violently suppressed peaceful marches in 1965, dramatizing the need for a strong law guaranteeing every American an equal right to vote regardless of race. Now, less than 50 years later, an Alabama county is asking the U.S. Supreme Court to invalidate the central provision of that law—Section 5. The court should decline the invitation.
The Voting Rights Act is widely acknowledged as the most effective piece of civil rights legislation in American history. It was passed to make real the promise of political equality in the Declaration of Independence and the Constitution. Section 5 ensures state and local governments with a history of voting discrimination don’t implement new laws or practices that deny Americans the equal right to vote. Unfortunately, it is still sorely needed.
Our nation has made great progress toward racial equality since 1965. But discrimination is still real and distressingly widespread in jurisdictions covered by Section 5.
Leading up to the 2012 election, states passed a wave of restrictive laws that, had they gone into effect, would have made it harder for millions of eligible Americans to vote. These laws—which ranged from voter ID requirements to registration cutbacks to curbs on early voting —would have fallen most harshly on minorities.
Section 5 was critical in turning back the tide and stopping real discrimination. It blocked a discriminatory photo ID requirement in Texas, which required a kind of ID more than 600,000 eligible voters did not have. It required Florida to restore some early voting hours used especially by minority voters. And it blocked Texas redistricting maps after a federal court found they intentionally discriminated against Latino voters.
But Section 5 did much more: It deterred states from passing discriminatory laws in the first place. In South Carolina, lawmakers rejected a highly-restrictive voter ID requirement because they knew it wouldn’t pass muster. Instead, the state passed a law that was more flexible for the 216,000 registered citizens without driver’s licenses or nondriver’s IDs. A federal court approved the less restrictive version.
The last few years have seen some of the biggest fights over voting in decades. After an election marred by discriminatory voting laws and long lines in which minorities had to wait twice as long as whites, Section 5 of the Voting Rights Act is needed more than ever. Now is not the time to get rid of America’s most time-honored voting rights protection.
By: Wendy Weiser, Director of the Democracy Program at the Brennan Center for Justice at New York University School of Law, U.S. News and World Report, February 27, 2013
“SCOTUS Sanctioned Racism?”: Conservative Justices Attack The Voting Rights Act
As a statue paying tribute to civil rights pioneer Rosa Parks was unveiled in Washington, D.C., the Supreme Court heard arguments in the case of Shelby County v. Holder, which will decide the Constitutionality of the Voting Rights Act of 1965 that bears Ms. Parks’ name.
Section 5 of the VRA requires election officials in selected states and regions, mostly in the South, to pre-clear any changes to voting laws. This provision has been called the “cornerstone of civil rights law” in America.
“Is it the government’s submission that citizens in the South are more racist than citizens in the North?” asked Supreme Court Chief Justice John Roberts.
Solicitor General Donald Verrilli said no.
Roberts noted that Massachusetts had the lowest turnout rate of black voters while Mississippi had the highest. He and all of the conservative justices on the court expressed skepticism of the continued relevance of a law that was originally intended to be an emergency accommodation.
The Voting Rights Act was renewed for 25 years by a Republican Congress and signed by George W. Bush in 2006. But right-wing organizations and donors have waged a two-decade campaign to destroy Section 5.
The law was deemed Constitutional in 1999, before Roberts and Justice Samuel Alito joined the Court. Justice Clarence Thomas has previously called Section 5 unconstitutional and Justice Antonin Scalia’s antipathy to the law was clear to all in attendance.
Scalia called Section 5 a “perpetuation of racial entitlement” and suggested that Congress could never be convinced to let the law lapse. “They’re going to lose votes if they vote against the Voting Rights Act. Even the name is wonderful.”
Justice Sonia Sotomayor twice asked Scalia, “Do you think Section 5 was voted for because it was a racial entitlement?” He did not answer either time.
Experts believe that Justice Anthony Kennedy will be the deciding vote on the case. He appeared extremely troubled by the idea of pre-clearance, saying it put some states under the ”trusteeship of the United States government.”
“Times change,” Kennedy said at one point.
“Kennedy asked hard questions — that’s his job,” Myrna Perez, a senior counsel with the Brennan Center, told the Washington Post‘s Greg Sargent. “But the questions didn’t signal the law’s demise.”
Verrilli pointed out that jurisdictions can “bail out” of the pre-clearance requirement once they’ve demonstrated a 10-year discrimination-free record — nearly 250 of the 12,000 state, county and local governments covered by the law have bailed out.
Justice Elena Kagan noted that the covered jurisdictions hold 25 percent of the U.S. population, but account for 56 percent of voting-rights lawsuits.
Sotomayor asked Bert Rein, the lawyer representing Shelby County, Alabama, ”Why would we vote in favor of your county, whose enforcement record is the epitome of the reasons that cause this law to be passed in the first place?”
In his brief, Rein argued that conditions that made the law necessary no longer exist.
The Nation‘s Ari Berman, who was at the hearing, noted that the rash of legislative attempts to restrict voting rights since 2010, which he’s called the “GOP’s War on Voting,” never came up during the arguments.
By: Jason Sattler, The National Memo, February 27, 2013
“Disenfranchisement Persists”: The Supreme Court Must Defend The Voting Rights Act
Today, the Supreme Court will hear oral arguments on Shelby County v. Holder, a case concerning the constitutionality of key provisions of the Voting Rights Act of 1965, a landmark law that outlawed discriminatory voting practices that disenfranchised African-Americans.
Shelby Country lies just south of Birmingham, Ala. One of its largest tourist attractions is the American Village, a nationally recognized citizenship education center whose mission is to teach visitors good citizenship and remind them of the price of liberty—that freedom isn’t free.
Shelby County wants the Supreme Court to declare a part of Section 4 and Section 5 of the Voting Rights Act unconstitutional. Section 4b codifies a formula to identify parts of the country where political discrimination based on race is high. Section 5 requires the Justice Department to “preclear” any changes to voting rules made in nine states, mostly in the South, and by areas in seven others.
The justices will consider an ultimate constitutional question: Does voter discrimination persist to the point where legal protections must remain in place to prevent it? The question, of course is rhetorical. It does. We only need to look at the long list of recent state-level legislative activity, both in and out of the South, that targets minority voters. Just in the last decade, lawmakers have broken up majority-minority districts with questionable redistricting practices. African-American and Latino voters have seen their names purged from voter lists under the guise that election officials were cleaning them up, and restrictive voter ID laws implemented. Laws, some argue, are the modern day equivalent of poll taxes.
If today was the opposite day, Shelby County’s case would have merit. They’d rightly argue that voting rights are color-blind. But it isn’t the opposite day, nor will that be the case for a long time to come. Shelby County ignores this fact. It forgets about Alabama’s long history of using violence fraud, poll taxes, and literacy tests to keep African-American’s from the polls.
The justices must avoid the same amnesia. In 2006, the House of Representatives voted 390-to-33 and the Senate 98-to-zero to renew the Voting Rights Act until 2031. These lawmakers, after a significant amount of testimony and impassioned debate, recognized that the threat of disenfranchisement persists. Some of the justices, however, have already signaled that it doesn’t. Justice Anthony Kennedy has questioned the fairness of the Voting Rights Act, and Justice Clarence Thomas has said flat out said that it’s unconstitutional.
Shelby County v. Holder targets the very heart of American democracy. If the justices rule in Shelby County’s favor, the right to vote will most certainly not be free. The American Village will have one more reminder to give its visitors.
By: Jamie Chandler, U. S. News and World Report, February 27, 2013
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