Opinion

The Great Debate

Think we don’t need to update the Voting Rights Act? Check out Tuesday’s primaries.

mahurin-for-troutt--- nelson

The door is open for Congress to repair the nation’s most transformative election law, which was neutered by the U.S. Supreme Court a year ago today.

Chief Justice John Roberts, in his majority opinion for Shelby County, Alabama v. Holder, issued Congress a written invitation to renew the Voting Rights Act of 1965 after striking down Section 4 of the act and disabling the strongest safety check against racial discrimination in voting.  The Senate Judiciary Committee hearing Wednesday on the Voting Rights Amendment Act shows that his invitation did not fall on deaf ears or timid hearts.

Swift and dauntless action is needed in both houses of Congress, however, to ensure that voting remains an equal opportunity exercise for all Americans, and that Congress remains a relevant force in the defense of voting rights in places like Mississippi, Texas, Georgia and beyond.

roberts-better11On Tuesday, conservative groups marshaled poll watchers for the senatorial primary run-off in Mississippi. Though a court blocked their presence inside polling places, their position just outside threatened to intimidate voters who had come to cast their ballots — echoing the power that poll watchers exercised throughout the Jim Crow South.

This is one example of potential voter suppression that minority voters have confronted in the year since the Shelby decision was handed down. The countdown to the next midterm and general elections has already begun and, since that ruling, states across the South and beyond have resurrected discriminatory voting restrictions — and invented new ones.

Renewing voting rights — with Roberts in mind

Should Congress accept Chief Justice John Roberts’ invitation?

Roberts, in his dramatic voting rights ruling last month, said Congress has a duty to update Jim Crow-era civil rights laws for a post-Jim Crow world. In Shelby County v. Holder, the Supreme Court basically found that Congress committed an unforced error by renewing the Voting Rights Act without updating its formula for patrolling discrimination against voters.

Now Congress can finish what the court started. As the Senate holds its first hearing in response to Shelby on Wednesday, with the House of Representatives due to hold one on Thursday, there are indications that a precise piece of legislation could pass even this divided Congress. Here are two strong ways to renew the Voting Rights Act.

A SUPREME COURT PLAN

The first thing Congress can do is update the law’s formula for hunting down discrimination. A clear bill can begin by answering the core question in Roberts’ opinion: Is there a better baseline for discrimination than the literacy tests and voter turnout numbers from the 1960s?

Democrats: It’s the states, stupid!

ILLUSTRATION: Matt Mahurin

Unless the Democrats wake up to the importance of winning state legislative elections, they are likely to remain a largely impotent minority in the House of Representatives and equally feeble in the state legislatures. The momentous Supreme Court decisions on the Voting Rights Act, same-sex marriage and affirmative action make winning these races all the more vital, for all these rulings deal with state action. The huge Republican victory in the 2010 election could turn out to be a gift that keeps giving.

The GOP electoral sweep in 2010 was no accident. Republicans understand the importance of the state legislative races. After the 2008 election the GOP adopted a strategy called the REDistricting MAjority Project (REDMAP). As Karl Rove explained:

“[S]ome of the most important contests this fall will be way down the ballot in . . . state legislative races that will determine who redraws congressional district lines after this year’s census, a process that could determine which party controls upwards of 20 seats and whether many other seats will be competitive.”

Why did court treat two minorities so differently?

Gays win, blacks lose. That’s the upshot of this week’s landmark Supreme Court decisions.

“It’s an exciting day for civil rights in America,” a young gay man standing outside the Supreme Court told the Washington Post. “I am a significant step closer to being an equal citizen under the law.” That sentiment was not shared by African-Americans. The day before, Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund, called the court’s voting rights decision “an egregious betrayal of minority voters.”

Why did the Supreme Court treat the two minorities so differently? Because the two minorities face significantly different problems. Since the civil rights laws were passed in the 1960s, inequality has become a bigger problem for African-Americans than discrimination. For gays, the problem is discrimination. The U.S. legal system is far better equipped to deal with discrimination than inequality.

The cost of America’s first black president

President Barack Obama addresses supporters at his election night victory rally in Chicago, Nov. 7, 2012. REUTERS/Adrees Latif

Barack Obama, America’s first black president, can be credited with many milestones — a comprehensive federal healthcare bill, taking down the world’s most wanted terrorist, signing the Fair Pay Act for gender pay equality, to name a few.

The obliteration of the Voting Rights Act, however, was certainly unintended. Despite the Justice Department’s zealous defense of the act’s constitutionality in Shelby County v. Holder, a divided Supreme Court voted 5-4 to strike down Section 4, the core of the act, on the grounds that it is not justified by “current needs.” Substituting its judgment for Congress’s, the court ignored a more than 5,000-page record of “current needs” that Congress relied on in 2006 when if reauthorized, with overwhelming support, the act’s challenged provisions.

The Supreme Court’s race impatience

ILLUSTRATION: Matt Mahurin

As Tuesday’s decision gutting the heart of the Voting Rights Act made clear, it is June and a slim conservative majority of Supreme Court justices is again impatient with race.

Judging from President Barack Obama’s initial tepid, nonracial reaction, the first black president — whose reelection hinged in part on an expanded minority voting base — is impatient with the Supreme Court, race or both. And Congress is, well, stuck on Congress.

What we’re seeing from the Roberts Court’s recent race decisions, however, is an aggressive colorblindness, cloaked in hubris and federalism – or states’ rights. Working to do away with race at all costs, this colorblindness is administered through the court’s growing demands that any civil rights remedy be tailored with a narrowness approaching oblivion.

Gutting the landmark civil rights legislation

 

The Supreme Court’s Shelby County v. Holder decision on Tuesday essentially cast aside the key component of the nation’s most important civil rights legislation.

The five “conservative” justices castigated Congress for putting too much emphasis on history by failing to update the “coverage formula” in Section 4 of the landmark Voting Rights Act of 1965.

Section 4 specifies which states and local jurisdictions must “pre-clear” with the Justice Department or the Washington district court all changes in election laws – anything from adding voter ID regulations to redistricting. Areas now subject to this federal oversight have had a substantial history of voter discrimination.

Voting Rights: Scalia v. minority protection

It’s rare to reach a point in our national sense of humor that a sitting Supreme Court justice emerges as the butt of popular jokes for comments he made during an oral argument. That’s what happened last week, however, after Justice Antonin Scalia asked lawyers defending Congress’s extension of Section 5 of the 1965 Voting Rights Act whether maintaining the pre-clearance formula for nine “covered” states, which are subject to federal oversight, was really just a “racial entitlement” program and not a constitutional necessity.

The media filled with guffaws about the justice’s audacity. Cartoonists ridiculed his racial insensitivity. MSNBC talk show host Rachel Maddow, dismissing Scalia’s words as mere willful provocation, called him a “troll.”

We’d be wise to watch the name-calling. Insulting as Scalia’s words sound, there’s more to the justice’s comments than political incorrectness. For those who care about more than full and fair voting rights for minorities, responding to the perceived slight with more name-calling misses the point. Scalia was talking about far more than the Voting Rights Act. He was talking about whether the Constitution affords minorities any real protection for a range of discrimination anymore.

Who controls Voting Rights?

This is part of the Reuters series on the future of the Voting Rights Act’s Section 5, which the Supreme Court may strike down this year. You can read other pieces in the series here.

On Wednesday the Supreme Court is set to hear oral arguments in Shelby County v. Holder, challenging the constitutionality of a key part of the Voting Rights Act. But in the wide public debate about this case, we are getting to the point where — as election law scholar Pam Karlan has noted — everything has been said, but not necessarily by everybody.

In addition to this Reuters symposium on “If the Court Strikes Down Section 5,” other symposia, commentaries and op-eds have considered whether the act still serves a vital purpose; whether the court should strike it down; and what should replace it if the court rules that Congress went too far in requiring certain states to continue to get federal permission when making changes in any voting rules until 2031.

Making sure race is considered

This is part of the Reuters series on the future of the Voting Rights Act’s Section 5, which the Supreme Court may strike down this year. You can read other pieces in the series here.

The Voting Rights Act has worked for almost 50 years to remove racial discrimination from the electoral process and prevent its return. Wednesday the U.S. Supreme Court is expected to hear oral argument on the constitutionality of Section 5, one of the act’s most powerful provisions. Section 5’s work is done, this argument goes, and the provision has outlived its usefulness.

Yet some of Section 5’s most important work lies beyond its technical application. Section 5 requires that jurisdictions with a documented history of racial discrimination in voting seek federal approval for any voting changes. The aim is to ensure that new voting laws will not “retrogress” — or harm — minority voting rights. It subtly and constructively inserts race into electoral decision-making — creating a race consciousness among decision-makers that can often preempt discrimination. This deterrent effect, and its impact on the discourse of race in elections, may be Section 5’s most important — and unfinished — work.

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