Fear of a Black (& Brown & Yellow) Electorate

By Paul Rosenberg, Senior Editor

“Throwing out pre-clearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” – Justice Ruth Bader Ginsburg, Shelby County v. Holder, dissent.

“I believe that when politicians feel the heat, they see the light.” – Congressman Keith Elison (D-MN), on the possibility of getting a new Voting Rights Act law passed by this Congress.

“Make no mistake, the 2014 election started today.” – MSNBC’s Chris Hayes

On June 25, the Supreme Court struck the biggest blow against civil rights since Plessy v. Ferguson in 1896, striking down a key section of the 1965 Voting Rights Act as unconstitutional.

The next day, the court issued the most liberal gay rights decision ever, striking down the “Defense of Marriage Act” as unconstitutional on equal protection grounds. The federal government must now recognize state-recognized gay marriages as fully equal under law. Given rapidly-shifting public opinion, the defeat of DOMA was seen as inevitable.

The contrast between the two decisions could not have been sharper.

The court also narrowly ruled to let stand a lower court decision striking down Proposition 8’s ban on marriage equality in California, but did nothing to affect other state marriage laws.

“We have no power to decide this case,” wrote Justice Antonin Scalia, in dissent. “And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.”

But he was dissenting from DOMA decision. He was perfectly fine with striking down the Voting Rights Act—even though that democratically adopted legislation was expressly authorized by the text of the 15th Amendment.

“So much for ‘originalism’ and ‘strict construction,’” said Caroline Fredrickson, president of the American Constitution Society for Law and Policy, citing two supposedly core principles of conservative jurisprudence. “The Supreme Court’s opinion in the Shelby County voting rights case is staggering and appalling in its disdain for the words and meaning of the Constitution – not to mention protection of the hallowed right to vote.

“Both the 14th and 15th Amendments state clearly that ‘Congress shall have the power to enforce’ voting rights and equal protection. Time and time again Congress has done so by reaffirming overwhelmingly the Voting Rights Act, including Sections 4 and 5; the last vote was a combined 488-33 or 94 percent of Congress.” (The Senate vote in 2006 was 98-0.) “But five of the Court’s justices have chosen to ignore the Constitution and Congress and substitute their own views for those granted the power in the Constitution. For jurists who allege to support judicial restraint, it’s hard to imagine a more activist (and disingenuous) decision than today’s.”

Supreme Court Justice Ruth Bader Ginsburg, made strikingly similar points in her scathing dissent.

The Voting Rights Act has two key sections under which discriminatory voting practice may be struck down: Section 2, which allows lawsuits after the fact, and Section 5, which requires specific jurisdictions with invidious histories (mostly states and counties, primarily in the South) to obtain “pre-clearance” from the Justice Department or a federal court before making any changes to their voting laws or administrative practices—a much more robust form of protection.

Jurisdictions with 10 years of good behavior can opt-out of preclearance, but very few do so, as their overall records are not encouraging. A University of Michigan Law School study, which Congress considered in its 2006 re-authorization of the act, found that covered jurisdictions account for less than 25 percent of the country’s population, but accounted for 56 percent of successful Section 2 litigation. The per capita Section 2 success rate was almost four times the rate in non-covered jurisdictions. What’s more, this data obviously didn’t include all lawsuits that didn’t occur challenging practices that were preemptively struck down under Section 5 beforehand.

The conservative majority left both sections intact, but struck down Section 4, the part of the law that defines the covered jurisdictions to which Section 5 applies, arguing that the jurisdictions covered were based on data from 1965, and hence no longer constitutionally allowable. The majority simply ignored the Michigan study and all the other thousands of pages of documentation that Congress had considered in re-authorizing the law in 2006.

“Coverage today is based on decades-old data and eradicated practices,” Chief John Justice Roberts wrote in his opinion, ignoring the actual legislative record, which ran to more than 15,000 pages.

“The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled,” Justice Ruth Bader Ginsburg shot back in her dissent. “Instead, it relies on increases in voter registration and turnout as if that were the whole story.”

Indeed, voter registration and turnout are irrelevant in the majority of cases which involve districting and redistricting issues which dilute the power of individual minority votes. Thus, in the majority’s view, a turnout of 100 percent in a racially gerrymandered district would be a sign of complete success, even if the one representative so elected were consistently out-voted by a white legislative majority elected by a smaller number of white voters.

“Whatever the device employed, this Court has long recognized that vote dilution, when adopted with a discriminatory purpose, cuts down the right to vote as certainly as denial of access to the ballot,” wrote Ginsburg on this point.

But not anymore, apparently.

“Without even identifying a standard of review, the Court dismissively brushes off arguments based on ‘data from the record … and declines to enter the “debat[e about] what [the] record shows…,” Ginsburg continued. “One would expect more from an opinion striking at the heart of the Nation’s signal piece of civil-rights legislation.”

But the majority’s refusal to look at the legislative record is but one of several fundamental flaws in their argument that Ginsburg highlighted.

“[B]y what right, given its usual restraint, does the Court even address Shelby County’s facial challenge to the VRA?” she asked, equally significantly.

A “facial challenge” means that a law is challenged as unconstitutional on its face, that “no set of circumstances exists under which the Act would be valid,” as Ginsburg noted the court has previously held.

But the majority opinion and the facial challenge were a logical mismatch for each other. The majority did not strike down Section 5, as a facial challenge would have required, it merely said that Section 4’s formula was outdated, and that it could be replaced with a more up-to-date formula that would pass muster. Given the historical record, any such formula would certainly cover Shelby County, thus nullifying the facial challenge, as Ginsburg took pains to demonstrate. Ginsburg first cataloged some of Shelby County and Alabama’s recent history of voting rights violations.

“These recent episodes forcefully demonstrate that §5’s pre-clearance requirement is constitutional as applied to Alabama and its political subdivisions,” she concluded. “And under our case law, that conclusion should suffice to resolve this case.”

Former slave state officials wasted little time in announcing their intention to move forward with voter suppression laws that had previously been blocked under the Voting Rights Act—voter identification laws, early voting laws, even voter registration laws. But Democrats in Congress just as quickly announced their intention to pass an updated replacement for Section 4. Added to this past year’s electoral experience, when the response to voter suppression efforts lead to the highest minority voter turnout ever, the prospects are potentially disastrous for the GOP. In that respect, the conservatives’ over-reach in Shelby County may turn out to be less like Plessy, and more like an even more infamous case, Dred Scott, which tried to settle slavery as a political issue once and for all, but only ended up fueling the rush toward civil war and eventual emancipation.