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Published on March 7th, 2013 | by RLn Staff

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Wronging Rights

By Paul Rosenberg, Senior Editor
Graphic Design by Mathew Highland

On March 7, 1965, a young John Lewis, head of the Student Nonviolent Coordinating Committee, co-lead 600 people in a voting rights march intended to go from Selma, Alabama to the state capitol in Montgomery. They only got as far as the Edmund Pettus Bridge where they were brutally beaten by a mob of state troopers, county sheriffs and deputies, in what came to be known as “Bloody Sunday.”

Eight days later, before the third attempted march finally succeeded, President Lyndon Johnson stood before Congress and introduced legislation that became the Voting Rights Act, which Congress passed six months later. In his introductory speech, Johnson said:

“Even if we pass this bill, the battle will not be over. What happened in Selma is part of a far larger movement which reaches into every section and state of America. It is the effort of American Negroes to secure for themselves the full blessings of American life. Their cause must be our cause, too, because it is not just Negroes but really it is all of us who must overcome the crippling legacy of bigotry and injustice. And we shall overcome.”

President Johnson’s adoption of the Civil Rights Movements’ signature slogan, essentially making it America’s slogan as well, sent chills through the millions of Americans involved in the struggle. But it was the Voting Rights Act itself—and the ongoing struggles it supported—which actually changed America.

Which is why, conservatives argued before the Supreme Court last week, the act was no longer needed, and should be struck down as unconstitutional. Blacks don’t need it anymore. Racism is dead. We have a black President.
The court’s conservative majority seems inclined to agree—with the possible exception of Anthony Kennedy. But Justice Antonin Scalia even went so far as to call the Voting Rights Act a form of “racial entitlement.”

John Lewis, now a senior member of Congress, vehemently disagrees. “It was unreal, unbelievable, almost shocking, for a member of the court to use certain language,” Lewis said, in widely-reported remarks.

“It is an affront to all of what the civil rights movement stood for, what people died for, what people bled for, and those of us who marched across that bridge 48 years ago, we didn’t march for some racial entitlement. We wanted to open up the political process, and let all of the people come in, and it didn’t matter whether they were black or white, Latino, Asian-American or Native American.”

The actual record of the Voting Rights Act completely undermines conservatives’ claims that it’s outmoded, no longer necessary. Four times since 1965, the Voting Rights Act has come up for re-authorization, and each time progress has been marked, along with continued resistance.

During the last re-authorization, in 2006, Congress held 21 hearings, with over 90 witnesses, and compiled a 15,000-page legislative record over a ten-month period, establishing the continued need for the act. In the end, it was passed 98-0 in the Senate and 390-33 in the House.

In Scalia’s twisted logic, this overwhelming vote said nothing at all about the strength of the evidence amassed—it was simply an example of “a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes,” as Scalia said during oral arguments.

But while Scalia’s remarks shocked and angered many—MSNBC’s Rachel Maddow described him as a troll, intentionally seeking to do just that—no one seems to know what he’s actually talking about. Even the conservative Heritage Foundation, which Random Lengths contacted for assistance, could not provide a single example of the writing about “racial entitlement” that Scalia claimed to exist.

The most powerful part of the Voting Rights Act, Section 5, requires “covered jurisdictions” (states, counties, cities, etc.) with a history of discrimination to get any voting law changes approved in advance by the Department of Justice. The reason is bitter experience: for decades before the Voting Rights Act, new discriminatory practices were quickly concocted whenever old ones were struck down.

In their 2006 review, Congress documented the continuing importance of Section 5: 750 objections blocked approximately 2400 discriminatory voting changes since the last previous re-authorization of the Voting Rights Act in 1982. There had been 650 successful voting rights lawsuits brought in jurisdictions covered by Section Five. All that evidence Scalia simply ignored, explaining it away with his reference to imaginary literature on “racial entitlements,” which no one but he appears to have ever seen.

There are problems outside covered jurisdictions as well, but the concentration of problems is much higher within them, which is why they remain covered. In fact, any jurisdiction that goes 10 years without any problems is eligible to “bail-out” of Section 5 preclearance—as close to 200 jurisdictions have so far. The bailout provision makes it quite clear that good behavior gets its reward, so that no one is “punished” solely for long-ago sins of the past, contrary to what enemies of the act routinely claim.

This point was brought sharply into focus when Justice Sotomayor questioned the lawyer for Shelby County. “Assuming I accept your premise, and there’s some question about that, that some portions of the South have changed, your county pretty much hasn’t,” she said.

“In the period we’re talking about, it has many more discriminating -240 discriminatory voting laws that were blocked by Section 5 objections. There were numerous remedied by Section 2 litigation. You may be the wrong party bringing this.”

The numbers Sotomayor cited appear to apply to Alabama as a whole, but Shelby county has had dozens of its own laws blocked. Indeed, the Shelby County town of Calera is a textbook example of why Section 5 is still needed. In 2004, Ernest Montgomery became the only black member of the five-person Calera City Council, winning in a district that was almost 71 percent black. Two years later, the city redrew its district lines, leaving Montgomery in a district that was only 23 percent black (even though the city’s total percentage of black voters had increased at the time).

He narrowly lost re-election in 2008 to a white newcomer who’d only lived in Calera three years. But the Justice Department invalidated the election under Section 5, because the city had failed to get approval in advance. The city ultimately adopted citywide elections, and Montgomery was elected with more votes than any other candidate. The candidate who beat him in 2008 came in next-to-last.

This is a classic example of why Section 5 exists: blacks gain more of a voice, so the white power structure changes the rules to take that voice away. The details of how this is done can take a seemingly endless variety of forms, but the end result is persistent racial polarization, with blacks and other minorities on the short end of the stick. That’s why election changes need to be checked out in advance.

If Shelby County may be the wrong party, as Sotomayor pointed out, the law firm representing them—Wiley Rein—is questionable as well. Last year, it represented both Florida and Ohio in federal court, unsuccessfully defending their attempts to restrict early voting.

And behind both the firm and the client is the man who recruited both of them, Ed Blum, director of the Project on Fair Representation, a conservative outfit devoted to fighting minority rights protections in public policy.

In 1992, Blum lost a Houston congressional race to Craig Washington, one of the first black legislators in Texas. Blum was outraged that blacks should have any district at all which gave them a chance to elect one of their own, and thus began his decades-long crusade against the voting rights act in particular, and minority-protection laws in general, which has been backed by $1.2 million from anonymous conservative donors since 2006, according to reporting by Ari Berman in the Nation magazine.

It was Blum who convinced Shelby County to challenge the Voting Rights Act after Calera was forced to undo its dirty work from 2006. Kevin Myles, southeast regional director for the NAACP, told Berman that the lawsuit was like “a fox filing a lawsuit saying the chicken coop is too secure.”
It seems the foxes want their country back.

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