GOP v. Voting Rights Act

By William Yeomans
January 10, 2013

The Republican Party is in danger of reaping what it has sown.

Much has been written about the GOP’s problem with minority voters.  Quite simply, the party has managed to alienate every nonwhite constituency in the nation.

This is not an accidental or sudden phenomenon. Ever since Republicans chose almost 50 years ago to pursue a Southern strategy, to embrace and promote white voters’ opposition to civil rights, the party has been on a path toward self-segregation.

Successive Republican administrations have pursued agendas that included retreating on civil rights enforcement and opposing government programs that increase minority opportunity. That steady progression culminated in Mitt Romney’s disastrous showing among African-American, Latino and Asian voters.

Now, even as Republican leaders are openly lamenting that the party is doomed unless it can reverse its downward spiral with minority voters, the Supreme Court has announced that it would hear Shelby County v. Holder next month — the latest challenge to the constitutionality of section 5 of the Voting Rights Act.

Clear-eyed GOP strategists must have cringed with recognition that the five Republican-appointed Supreme Court justices are threatening to put the final nail in the party’s coffin.

Put bluntly, if the court’s Republican majority strikes down this recently reauthorized, core provision of the Voting Rights Act – the most effective and revered of all civil rights statutes — the backlash will likely ensure that Republican presidential candidates will struggle for a generation to win more than a handful of minority votes. The specter of justices appointed by the Republican Party joining in the effort to suppress minority votes will likely ignite a new movement among minorities and their allies to protect the franchise against GOP attack.

Section 5 of the Voting Rights Act requires that jurisdictions with a record of voting transgressions subjected the law must obtain pre-clearance for any change in election rules  from either the Justice Department or a three-judge court in Washington, D.C. This requirement grew out of the inability of litigation to address many jurisdictions’ determined efforts to prevent African-Americans from voting. The Justice Department’s best attempts in suing to enforce the 15th Amendment, which prohibits denial of the vote based on race, proved inadequate.

Because of local jurisdictions’ lack of cooperation and, in some instances, the recalcitrance of racist judges, individual cases proved time-consuming and expensive to pursue. Frustratingly, even when plaintiffs won an order blocking one tactic for disenfranchisement, a jurisdiction could just adopt a new method — requiring a fresh round of litigation.

Only after years of litigation had produced unsatisfactory results and the heroic efforts of civil rights activists and ordinary citizens had exposed massive injustice did Congress finally step forward. Pushed by President Lyndon B. Johnson, Congress passed the Voting Rights Act in 1965.

Section 5 has proven so successful, its opponents now argue, that its own achievements should kill it. They contend that conditions in the jurisdictions subject to the law have changed — in part because of the act’s accomplishments — making the federal oversight imposed by Section 5 no longer warranted. Congress, however, made extensive findings to the contrary in 2006 and reauthorized Section 5 for 25 years by unanimous vote in the Senate and an overwhelming majority in the House of Representatives.

Indeed, as Judge David S. Tatel’s opinion for the D.C. Circuit Court in Shelby County amply demonstrates, Congress acted well within its power in reauthorizing Section 5. The ruling noted that Congress, examining the record only since 1982, acted on the basis of 626 attorney general objections blocking discriminatory changes; more than 800 proposed voting changes that were withdrawn or modified after the Justice Department requested more information before it would approve them; 653 successful cases under Section 2 of the act, which allows lawsuits to redress discrimination; tens of thousands of election observers being sent to covered jurisdictions; 105 successful Section 5 enforcement actions; 25 unsuccessful suits seeking approval of voting changes, and the invisible deterrent effect, which can restrain jurisdictions that know their election practices must survive Section 5 review.

Faced with this overwhelming evidence that Section 5 is still justified in the jurisdictions still subject to it, opponents are making a second argument. Some jurisdictions, they point out, that are not covered by Section 5 behave just as badly — revealing the imprecision of the section’s coverage formula. The formula captures jurisdictions that administered a discriminatory device (such as a literacy test) and where registration or turnout in the presidential elections of 1964, 1968, or 1972 fell below 50 percent. There was never any magic to the formula, which was reverse-engineered to capture the worst offenders.

The formula was always under-inclusive. It fails, for example, to include such states as Arkansas, Tennessee and Oklahoma, where racial discrimination was no stranger. It was also over-inclusive, capturing jurisdictions where voting discrimination was not as severe. That is why Congress built into the act a bailout provision, which allows jurisdictions that have maintained clean records for 10 years to go to court to end federal oversight. Dozens of jurisdictions have done just that.

It is true that several states not covered by Section 5 have been hotbeds of voting law controversy in recent cycles – notably Ohio, Pennsylvania and Florida (only five counties are covered). The correct response to this misbehavior, however, is not to release the covered jurisdictions. It is to ensure adequate legal remedies against abuses in these others as well.

Despite Congress’s recent reauthorization of Section 5, unanimous recognition of its success, and a voluminous record compiled by Congress in support of its continued necessity, the Republican appointees to the court appear eager to throw it out. In 2009, these justices put it in their sights – by accepting the case NAMUDNO v. Holder — but then failed to pull the trigger. They instead decided the matter through creative statutory interpretation. Chief Justice John Roberts’ opinion, however, gratuitously expressed serious concern about Section 5’s constitutionality and made it clear that the court would not likely hold its fire a second time.

Shelby County presents that second time.

The Republican Party planted the seeds of this judicial disaster decades ago. Building on the resentment of white Southerners toward Brown v. Board of Education and the demise of Jim Crow, Richard M. Nixon implemented his Southern strategy to appeal to angry white voters. He then fed this beast by appointing conservative judges who would reverse civil rights progress.

President Ronald Reagan identified conservative ideologues for the bench who could be counted on to reject effective civil rights enforcement. He elevated Associate Justice William Rehnquist to chief justice and then tried to push through confirmation of the ultra-conservative Robert Bork, who had opposed the Civil Rights Act of 1964. This proved too much for the Senate.

Reagan also appointed Justices Antonin Scalia and Anthony Kennedy. Both have voted consistently against minority civil rights plaintiffs, while showing enthusiastic support for whites challenging civil rights remedies. President George H.W. Bush continued this pattern when he appointed Clarence Thomas, age 41, to the court. Thomas was not chosen on the basis of his experience or distinction as a legal thinker, but because of his race and conservative ideology — which featured strong opposition to civil rights remedies.

President George W. Bush’s appointments of Roberts and Samuel Alito, who cut their teeth as attorneys in Reagan’s Justice Department, completed this decades-long Republican effort to create a solid right-wing majority on the Supreme Court that would consistently oppose minorities’ civil rights claims.

With that project now complete, the Republican appointees are poised to take on the Voting Rights Act.

While forces hostile to the act spent the years since the 2006 reauthorization trying to convince the public that Section 5 is no longer necessary, the two years leading to the 2012 election undermined their work. Following strong GOP gains in the 2010 election, Republican-led statehouses across the nation launched efforts to suppress minority voting by restricting early voting, blocking voting on Sunday, imposing draconian registration requirements, purging voting lists and passing photo ID requirements.

Early post-election accounts suggest that these noxious tactics backfired and actually increased minority enthusiasm and turnout in the affected jurisdictions.

These suppression efforts should make it far harder for opponents of Section 5 to argue that it is no longer necessary. Fortunately, Section 5 blocked photo identification laws enacted by South Carolina and Texas and limited the restrictions on early voting adopted by Florida. A three-judge court relied on Section 5 to block Texas’ most recent redistricting plans for its congressional, senate and state house seats — finding that the legislature acted with the intent to discriminate on the basis of race. Section 5 should also prevent Alabama and Mississippi from implementing recently authorized photo identification laws.

The tw0 years since the 2010 midterm election present overwhelming evidence that covered jurisdictions are not yet ready to conduct elections without federal supervision.

Days after Romney was humbled by a historic lack of minority support, the Republican-appointed Supreme Court justices plunged ahead — agreeing to review Section 5 and threatening to make it significantly more difficult for the Republican Party to improve its standing with minority voters.

Just as Romney’s defeat reflected decades of Republican policy hostile to the interests of minorities, the court’s recent decision to hear Shelby County reflects decades of effort to pack the court with right-wing ideologues who will oppose minority interests.

The Republicans’ best hope to avoid further alienating minority voters lies in Kennedy, the Republican-appointed justice most likely to break with his conservative colleagues. All eyes will be on him as he decides whether his legacy will include being the justice whose vote brought down America’s most effective civil rights law.

His vote may well determine the prospects of the Republican Party for years to come – and the health of our democracy.


PHOTO (Top): The Supreme Court building in Washington, May 20, 2009. REUTERS/Molly Riley

PHOTO (Insert 1): Chief Justice John Roberts   REUTERS/Larry Downing

PHOTO (Insert 2): President Lyndon B. Johnson talking with Civil Rights leader Martin Luther King Jr.  Wikipedia/Commons

PHOTO (Insert 3): President Richard M. Nixon orchestrated the Southern strategy to appeal to Southern white voters angered over passage of the Voting Rights Act.

PHOTO (Insert 4): Justice Anthony Kennedy  REUTERS/Larry Downing


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