Opinion

The Great Debate

Roberts Court: Easier to donate, harder to vote

Chief Justice John Roberts’ first sentence of his majority opinion in McCutcheon v. Federal Elections Commission, striking down important limits on campaign contributions, declares “There is no right more basic in our democracy than the right to participate in electing our political leaders.”

A look at the Roberts Court’s record, however, shows that this may not be its guiding principle.

Through a series of rulings, the court’s conservative majority’s rulings have instead made it easier for big-money donors to influence elections — while making it harder for many Americans to use the only political influence they have: their vote.

The court has done handsprings to accommodate claims that laws burdening donors’ ability to spend money in elections are unconstitutional. In Citizens United, for example, the court decided to schedule re-argument during a special court session — something very rare in the Supreme Court — to consider whether to strike down campaign finance restrictions on corporate expenditures as unconstitutional. (Which the court ultimately did.). The plaintiff in that case hadn’t even pressed such a radical argument, until the court explicitly invited it to do so.

The Roberts Court’s solicitude in protecting the ability of the super rich to participate in our elections through massive amounts of cash is, however, missing when it comes to protecting ordinary Americans’ right to vote free from discrimination. Last term, a divided 5-4 court struck down a section of the Voting Rights Act that had successfully prevented racial discrimination in voting since 1965.

Democrats: It’s the states, stupid (Part 2)

ILLUSTRATION: Matt Mahurin

Since the government shutdown, public opinion of the Republican Party has hit a new low. Yet the Democrats might not be able to gain from it. Despite the GOP’s fall from grace — and even if they suffer a lower vote count in the 2014 midterm elections — the Republicans might still control the House of Representatives and many state legislatures after the polls close.

Our Constitution is unique in that it gives state legislatures virtually complete control over how we elect the president and Congress. In other democracies, the national government runs elections, usually through an impartial commission. Our system, however, lets the party that controls the state legislatures manipulate election rules to help itself and harm its opponents in both the state and House races.

Realizing this, powerful Republican leaders, including former Bush White House Counselor Ed Gillespie and Senior Adviser Karl Rove decided in 2009 to concentrate on winning control of the state legislatures. Through a combination of money, luck and skill, in 2010 the Republicans captured almost a majority of the state legislatures, and then added a few more in 2012. This has given them the power not only to shape the electoral rules and control the House, but also to pass other laws that shape many aspects of our lives.

King’s deferred ‘Dream’ of democracy

In the midst of current retrenchments on voting rights, the 50th anniversary of Martin Luther King Jr.’s “I Have a Dream” speech provides an important opportunity to consider whether his “dream” has been realized. Or, is it now, in the words of the famous poet Langston Hughes, a “dream deferred.”

In that speech and many others, King lays out a powerful vision of democracy “deeply rooted in the American dream . . . ‘that all [persons] are created equal.’” King also articulated a three-pronged vision for American democracy — inclusive, substantive and transformative — throughout his struggle for civil rights.

The promise held in King’s dream is to wake up one day to its reality — not to slumber while discrimination marches on. The immediate step we can take is to reverse the continuing assault on voting rights and expand participation in our democracy. Rehabilitating the Voting Rights Act of 1965, following the Supreme Court’s recent decision in Shelby County v. Holder, which struck down one of the law’s most important provisions, should be at the top of this agenda.

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.

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