In the color-blind wish-world of Chief Justice Roberts and his four conservative colleagues on the Supreme Court, Jim Crow-era restrictions on minority voting represent a sad, historical curiosity, unrelated to modern reality. Surveying the landscape from their marble aerie, these five Justices decided in Shelby County v. Holder that requiring the pre-clearance of election-law changes in certain jurisdictions, a provision of Section 4 of the Voting Rights Act, was now unconstitutional. Congress had passed the Act in 1965 in response to the broad denial of the right to vote; as recently as 2006, an overwhelming majority of Congress found that it was still necessary. The Court simply disagreed: “Nearly 50 years later, things have changed dramatically.”
The majority Justices cited a newly minted “fundamental principle of equal sovereignty” of states as trumping the need to assure the equal voting rights of minorities. This is consistent with their concern for the rights of entities rather than individuals. So how did states exercise their “equal sovereignty” in response to the Court’s decision? Texas is a clear example. In 2011, the Texas Legislature had approved a state-issued photo-I.D. requirement. A Washington, D.C., court struck the law down, determining that it “imposes strict, unforgiving burdens on the poor and racial minorities in Texas.” With the Supreme Court decision, the law was unstruck and became the law of Texas. Similarly, after Texas redrew political boundaries in 2011, another court found that minority groups “provided more evidence of discriminatory intent than we have space, or need, to address here” and threw the maps out. Now, with the Supreme Court decision, Texas can draw any maps it wants and they are excluded from pre-clearance.
Holder swung back, using a different portion of the Voting Rights Law, Section 3, which permits the United States to seek what’s known as a “bail-in”—a process that places the election laws in jurisdictions under federal oversight on a case-by-case basis if the government can make a showing of recent, intentional discrimination. Holder is seeking a ten year pre-clearance requirement. Section 3 relief is a much less reliable mechanism than the now invalidated Section 4. It allows much greater discretion on the part of the federal courts, requires a much higher evidentiary standard, and permits laws to become effective while decisions are pending, rather than before elections take place. Nevertheless, the Attorney General’s Section 3 initiative is a recognition on the part of the Administration that it will not be able to get legislation through the Congress that would reauthorize pre-clearance; and it nevertheless can and will use available, if less effective, mechanisms to take an aggressive posture in fighting restrictions on voting.
Texas’s story illustrates the folly of the Supreme Court’s rosy view on race. Texas did not wait even a day to impose racially restrictive voter-I.D. laws and extreme racial gerrymandering. Mississippi and Alabama, which had also passed voter-I.D. laws that were subject to pre-clearance, also announced their intention to begin immediate enforcement. On Thursday, the North Carolina legislature passed a law, which not only required government-issued I.D.s, but also shortened early voting, eliminated same-day voter registration during early voting, and allowed any registered voter to challenge another voter’s eligibility.
Republican legislatures and Governors in twenty states have recently passed restrictive voting laws, the patent purpose of which is to suppress minority turnout and dilute minority representation. The claim that voter-I.D. laws are meant to prevent voter fraud is hardly offered seriously; it is a solution in search of a problem. Gerrymandering has a long history in this country, but sophisticated modelling, coupled with a desire to limit minority representation, adds a layer of precise race-based discrimination. African-Americans and Hispanics tend to vote Democratic and so Republicans don’t want them to vote at all. The logic is an inexorable as it is reprehensible. This does not only happen in the Old South, but racist manipulation of the voting process in other parts of the country is an argument for including more jurisdictions rather than tossing out pre-clearance. (There is speculation that the Attorney General will also challenge racially restrictive voting laws in South Carolina and elsewhere.)
All of these phenomena gathered in a single storm in Texas. A large increase in the Hispanic population offers the prospect of turning this Yellow-Dog-Democrat turned Tea-Party Republican state into a blue or at least a purple state again. No Democrat has won a statewide election since 1994. The only Republican hope to continue this string of victories is to try to stem the tide of demographics by clogging the voting process to suppress turnout. The Texas litigation that was stopped in its tracks by the Supreme Court is well developed, with extensive factual findings on the race-restrictive motivation behind both the voter-I.D. law and the redistricting. This will provide a strong factual basis for arguing for the necessity of a period of pre-clearance.
The Supreme Court plays two critical functions in maintaining the integrity of our republican (small “R”) form of government. The first is counter-majoritarian, to protect the rights of “discrete and insular minorities” as stated in a famous footnote in the Carolene Products case. The second is majoritarian, to keep the arteries of democracy open and free-flowing through a robust, transparent, and accessible voting process. There is a long history of democratically elected governments around the world undermining the democratic process through restrictions on the franchise, a risk that the Fifteenth Amendment to the Constitution was designed to prevent.
This Roberts Court failed to protect the rights of minorities by ignoring the concerted voter-suppression efforts of today. Jim Crow with a smile and a request for an I.D. is still Jim Crow. The Supreme Court also failed to foster support for the simple act of voting, the keystone for democratic legitimacy. Attorney General Holder’s attempt at a work around is most welcome, but it cannot fully compensate for the Supreme Court’s unfortunate decision not to discharge its core institutional responsibilities.
Original Article
Source: newyorker.com
Author: Eric Lewis
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