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    • Brad Friedman

      Blogger
    • June 26, 2013 in Columnists

    SCOTUS demolishes Voting Rights Act

    In a remarkable display of judicial overreach, activism and legislating from the bench, the five Republican-appointed U.S. Supreme Court Justices, in a narrow 5-4 ruling on June 25 [PDF] have, in the words of dissenting Justice Ruth Bader Ginsberg, “demolished” the center-piece of the nation’s beloved 48-year old Voting Rights Act, ignored the court’s own repeated rulings, overridden a repeated and unambiguous mandate by the U.S. Congress (most recently, one led by two Republican chambers and a Republican President), and made an absolute joke of the no-uncertain-terms directive of the U.S. Constitution’s 15th Amendment.

    In short, the nature of today’s SCOTUS ruling, effectively gutting the central provision of what is arguably the most important Constitutionally-mandated and successful civil rights legislation in the nation’s history, encompasses everything that the Republican Party has, in recent years, pretended to abhor when it comes to the judiciary — everything, that is, but the partisan politics of its historic reach…

    The majority opinion, authored by Chief Justice John Roberts, strikes down the Constitutionality of VRA’s Section 4. That section includes the formulas for determining which jurisdictions will be covered by Section 5, the provision of the law which requires jurisdictions with a long history of racial discrimination at the voting booth to receive pre-clearance from the federal government before new laws with an impact on voting rights can take effect.

    During the course of 2012, for example, failure to receive pre-clearance under Section 5 of the VRA resulted in a rejection of extreme, disenfranchising polling place Photo ID restrictions in Texas and South Carolina, draconian restrictions on voter registration programs in Florida, and “purposefully” racially discriminatory Congressional redistricting maps in Texas.

    Without the ability to identify jurisdictions requiring pre-clearance for elections laws under Section 5, it will only be after such laws have already taken effect and after voters have already been disenfranchised, that a voter could try to sue to have those laws overturned.

    While the plaintiff in the case the Supremes ruled on today, Shelby County, AL vs. Eric Holder, sought to strike down Section 5 of the Voting Rights Act, the court’s Rightwing majority allowed Section 5 to remain intact, while requiring Congress to create a new Section 4 formula for determining which jurisdictions will be covered by it, asserting that “the nation is no longer divided along those lines” initially developed in 196, and modified many times since. Despite an enormous body of evidence to the contrary, and despite tools in the law that allow jurisdictions to bail out of the process if they can demonstrate a clear lack of racial discrimination, Roberts and the rest of the majority found the current Section 4 formulas outdated.

    Moreover, despite very recent and overwhelmingly bipartisan support for the VRA in Congress, members are now dubious they will be able to overcome the current political climate in Washington D.C. in order to develop new criteria for Section 4 — particularly given the partisan Republican make-up of the U.S. House.

    Voting rights advocates are worried and furious. “The Supreme Court’s decision today to strike down a key part of the Voting Rights Act is an act of extraordinary judicial overreach,” says Sherrilyn Ifill, President and Director-Counsel of the NAACP Legal Defense and Educational Fund, which defended the Voting Rights Act at the U.S. Supreme Court earlier this year, when Justice Antonin Scalia offensively and inaccurately referred to the VRA as “a perpetual racial entitlement.”

    “By second-guessing Congress’ judgment about which places should be covered by Section 5 of the Voting Rights Act, the Court has left millions of minority voters without the mechanism that has allowed them to stop voting discrimination before it occurs,” Ifill’s statement continues. “This is like letting you keep your car, but taking away the keys. To say that I am disappointed is an understatement. Congress must step in.”

    Congress has re-authorized the VRA four times since its initial passage in 1965, most recently for another 25 years in 2006. The vote that year was a unanimous 98 to 0 in the U.S. Senate and an overwhelming 390 to 33 in the U.S. House. The bill was passed following 21 hearings over several months, as led by the Republican Judiciary Committee Chair Rep. James Sensenbrenner. The hearings resulted in some 15,000 pages of documentation supporting the continuing need for Section 5.

    “There was a lot of invidious discrimination shown,” Sensenbrenner confirmed earlier this year. He characterized the hearings, which closely examined the extent to which racial discrimination still affects minority voters, as “one of the most extensive considerations of any piece of legislation that the United States Congress has dealt with in the twenty-seven and a half years that I have [served].”

    After the 2006 re-authorization was approved by a remarkable bi-partisan majority in both Republican-led chambers of Congress, it was signed into law by George W. Bush. The VRA’s three previous federal re-authorizations (in 1970, 1975 and 1982) were also signed into law by Republican Presidents.

    On Monday, legislating from the bench, the activist Supreme Court made a mockery of those proceedings, overriding one of the few exceptionally clear Congressional mandates of the past decade.

    The court ruling also scoffs at the U.S. Constitution which, in its 15th Amendment, bars restrictions on the right to vote “by any State on account of race, color, or previous condition of servitude.”

    Most notably here, the two sentence Amendment also declares, without ambiguity: “The Congress shall have power to enforce this article by appropriate legislation.”

    “[T]he Court’s opinion can hardly be described as an exemplar of restrained and moderate decision making,” Justice Ginsburg penned in her fiery dissent on behalf of the court’s four Democratic-appointed members today. “Quite the opposite. Hubris is a fit word for today’s demolition of the VRA.”

    “Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court’s opinion today,” writes Ginbsburg. “The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled. … In my judgment, the Court errs egregiously by overriding Congress’ decision.”

    “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet,” she opined.

    The Court itself has also re-approved the Act, over and over again, four times, most recently in 2009.

    “In the past 25 years, Section 5 of the Voting Rights Act has stopped over 1,000 proposed discriminatory voting changes from taking effect,” declared the NAACP’s Ifill.

    Republican opponents of the VRA wasted no time today in celebrating the court’s ruling. In Texas, the Attorney General announced he was eager to reinstate laws that had been repeatedly rejected last year under Section 5, being found purposefully discriminatory by both the Dept. of Justice and the federal court system.

    In March of 2012, the Dept. of Justice rejected pre-clearance for a Republican polling place Photo ID restriction law in TX, finding, for example, that, based on data supplied by the state, registered Hispanic voters were anywhere from 46% to 120% more likely than non-Hispanic voters to lack the state-issued ID needed to vote under the new restrictions. In August of 2012, a federal court panel upheld that ruling unanimously, finding the new Lone Star State law would “almost certainly have a retrogressive effect” as “it imposes strict, unforgiving burdens on the poor, and racial minorities in Texas [who] are disproportionately likely to live in poverty.”

    Similarly, last September, the DoJ found that a Congressional redistricting plan in TX “was adopted, at least in part, for the purpose of diminishing the ability of citizens of the United States, on account of race, color, or membership in a language minority group, to elect their preferred candidates of choice to the Texas House of Representatives.” The DoJ also determined that the law would have a “retrogressive effect” on minority voters’ ability “to elect their preferred candidates of choice to the United States House of Representatives.”

    Today, however, Republican TX Attorney General Greg Abbott was ebullient. “With today’s decision,” he said, “the state’s voter ID law will take effect immediately. Redistricting maps passed by the Legislature may also take effect without approval from the federal government.”

    Without the ability to challenge such laws under Section 5 before they go into effect — now that the Supreme Court has overridden the will of both the Legislative and Executive branches of government to determine covered jurisdictions under Section 4 — in most cases now, it will only be after thousands of voters in Texas (and 15 other jurisdictions around the nation) have been disenfranchised before they can begin the fight to restore their right to vote.



    • The Voting Rights Act of 1965 prohibits practices—such as poll taxes and literacy tests—that interfere with a person’s ability to vote. Section Five applies to jurisdictions that show evidence of ongoing violations or have a history of such practices.



    • and Congress itself has hesitated to impose the draconian sanction of reduced apportionment on offending states. So Congress, via the VRA, has done something far gentler — something altogether proportionate to the core purposes of the right to vote explicitly set forth in section 2. Precisely because no apportionment penalty has ever been or is ever likely to be assessed, Congress has properly sought to assure that the right to vote for presumptive voters is never abridged! (If it is never abridged, there is no need for any apportionment penalty, and the lack of such a penalty in the real world is altogether unobjectionable.) And section 5 of the VRA is an entirely sound way — a way absolutely proportional to the explicit purposes of section 2 — of achieving this proper constitutional goal. Section 1 of the Fourteenth Amendment also merits attention, and its opening sentence, conferring citizenship on all those born on American soil, encapsulates two critical lessons for the issue at hand. First, congressional power is not and should not be unlimited. For example, Congress cannot enforce the Fourteenth Amendment by stripping a natural-born American of his citizenship — as a way, for example, of penalizing a state official who misbehaves and deprives others of their constitutional rights.



    • Now, voter ID laws in Texas, Alabama, and Mississippi are in effect after a delay of years. Section 5 is dead and gone, and congressional Republicans, no matter how much racialist false witness is lobbed at them, simply have no ability to resurrect the law. Will the GOP defend itself against the already-commenced false racial attacks following the decision, or will they cave?



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