Supreme Court waters down Voting Rights Act
- Thread starter QueEx
- Start date
Related threads:
Black conservatives launch effort to scrap part of Voting Rights Act
RepubliKlans Put Renewal Of Voting Rights Act On Hold
Right Wings Conservative Supreme Court Justices Want To Over Turn Voting Rights Act
The Court Fumbles on Voting Rights
DOJ - Civil Rights Division Voting Rights Section Chief Is A Buckwild Racist
Post-Shelby Cleanup:
Bipartisan Effort Aims to Revive Voting Rights Act
Civil rights groups are already analyzing the implications
and shortcomings of this “important first step.”
When the Supreme Court ruled in its June 2013 Shelby v. Holder decision that a key component of the 1965 Voting Rights Act was unconstitutional, the responsibility fell to Congress either to fill the gaping hole left by the striking down of the formula used for Section 5’s preclearance requirement or to otherwise update protections against voter discrimination.
On Thursday, in the first post-Shelby effort by a bipartisan group to strengthen the VRA, Reps. Jim Sensenbrenner (R-Wis.) and John Conyers (D-Mich.) and Sen. Patrick Leahy (D-Vt.) plan to introduce the Voting Rights Act Amendment of 2014, The Nation reports.
The court’s 5-4 decision in Shelby struck down Section 4, which outlines the formula dictating which parts of the country were required to obtain federal approval—or “preclearance”—before they could make changes to their election laws. Chief Justice John Roberts wrote that the formula, originally created to combat Southern officials’ efforts to make it more difficult for blacks to vote, was “unconstitutional in light of current conditions” and based on “decades-old data and eradicated practices.”
Meanwhile, Justice Ruth Bader Ginsburg wrote in her dissent that discrimination had declined precisely because of the effectiveness of the VRA, and critics of the decision argued that it flew in the face of evidence of ongoing disenfranchisement—from long poll lines in areas with high percentages of minority voters to Republican legislators’ repeatedly upheld the entire Voting Rights Act, holding as recently as 1999 that its preclearance requirement remained an effective tool to combat a legacy of efforts to disenfranchise racial minorities.
Many analysts doubted that the current Congress could reach agreement on how and where to require federal oversight for voting changes.
Voting-rights advocates are cautiously optimistic about the proposal unveiled today. “Although not perfect, this bill is an important first step,” said Sherrilyn Ifill, president and director-counsel of the NAACP Legal and Educational Fund, which intervened in Shelby on behalf of African-American residents of Shelby County, Ala., whose voting rights it said were directly affected by the case. “There is much more work for Congress, civil rights groups and communities to do.”
Among other provisions, the proposed legislation reportedly includes a new mechanism that identifies places with the worst voting-discrimination records and requires them to receive pre-implementation review of changes in their voting policies; a provision that enhances the ability of those who challenge voting changes based on the likelihood that they’ll be discriminatory to obtain preliminary injunctive relief; a provision allowing for expanded federal court authority to order pre-implementation review for jurisdictions that have been found to discriminate against voters; and a requirement for nationwide notification of potential voting changes.
According to the Advancement Project, the bill’s restoration of the federal preclearance requirement for states that have had at least five voting-rights violations within the past 15 years would appear to require Georgia, Texas, Mississippi and Louisiana to obtain preclearance before implementing voting changes. However, the civil rights organization also predicts that states such as Alabama, Alaska, Arizona, North Carolina, South Carolina, Virginia and Florida would not be automatically covered.
“The exclusion of North Carolina is especially egregious, considering the flood of harmful voting policies from the state,” said Advancement Project Co-Director Penda D. Hair in a statement released on Thursday. “These measures include a 2012 redistricting plan that diluted the power of African-American voters; the passage of a voter-suppression law that cut early voting by a week, eliminated same-day registration and requires strict voter ID, among many other restrictions; and last week’s decision that residents of the 12th Congressional District will be forced to go 300 days without representation.”
Rep. Conyers, a co-sponsor of the bill, told the Huffington Post that the introduction of the bipartisan bill signals the beginning of what could be a long debate. “We’ve got our work cut out for us,” he said. “We’ll be here for a while.”
SOURCE
Vice President Biden : "Stand Up" for Voting Rights
<iframe width="560" height="315" src="//www.youtube.com/embed/V9LoNcjqD1w" frameborder="0" allowfullscreen></iframe>
http://www.msnbc.com/msnbc/joe-biden-stand-voting-rights
The GOP War on Voting
First, they failed to follow up on promises to fix the Voting Rights Act
after it was gutted by the Supreme Court; Then, they ushered in a new Republican
war on voting with new ID laws, restrictions and intimidation tactics.
<iframe src='http://player.theplatform.com/p/2E2eJC/EmbeddedOffSite?guid=n_maddow_3south_140603' height='500' width='635' scrolling='no' border='no' ></iframe>
Alabama voting rights put on trial
The Supreme Court accepted a challenge to the state’s redistricting
plan, which plaintiffs allege is intended to dilute black voting power
<iframe src='http://player.theplatform.com/p/2E2eJC/EmbeddedOffSite?guid=n_hayes_4just_140604' height='500' width='635' scrolling='no' border='no' ></iframe>
Latino groups push for update to Voting Rights Act
Hector Sanchez, chairman of the National Hispanic Leadership Agenda speaks on Latino rights
McClatchy Washington Bureau
By Vera Bergengruen
June 12, 2014
WASHINGTON — Citing concerns about new state voter-ID laws and voter roll purges, a coalition of Latino organizations on Thursday called on Congress to push ahead with its update of the federal Voting Rights Act.
Speaking in a news conference on the steps of the Supreme Court a year after justices struck down a key component of the federal law, members of three organizations released a report on what they say are potential problems in states with histories of discrimination.
“We were told that this kind of voting discrimination doesn’t exist anymore,” said Luz Weinberg, a city commissioner from Aventura, Fla., who’s a member of the National Association of Latino Elected and Appointed Officials. “They said, ‘Give us some examples.’ So here are our examples; now it’s time for Congress to act.”
The 5-4 Supreme Court decision last June in Shelby County v. Holder threw out a vital provision of the landmark 1965 legislation. That provision required jurisdictions with histories of voter discrimination to get approval from the Justice Department before they change any election practices. The justices invited Congress to set a new formula adapting the law to changing times.
In response, the bipartisan Voting Rights Amendment Act was introduced in January. In the House of Representatives, Judiciary Committee Chairman Robert Goodlatte, R-Va., whose committee holds jurisdiction over the bill, hasn’t scheduled a hearing. In the Senate, Sen. Patrick Leahy, D-Vt., has said he’ll hold a hearing on the issue of voting rights.
“Chairman Goodlatte should schedule a hearing on the bill, but he has refused,” said Hector Sanchez, the chairman of the National Hispanic Leadership Agenda, a coalition of national Latino organizations. The Mexican American Legal Defense and Educational Fund also contributed to the report. “If in fact he believes that voting discrimination does not exist, then let’s have that debate.”
In a statement Thursday, Goodlatte responded: “I fully support protecting the voting rights of all Americans. As Congress determines whether additional steps are needed to protect those rights, I will carefully consider legislative proposals addressing the issue.” He hasn’t said whether he’ll hold a hearing.
The Voting Rights Act has been used primarily to protect the civil rights of African-Americans. But Thursday’s event highlighted several examples of practices that affect the growing Latino electorate. As of 2012, Latinos made up over a quarter of the voting age populations in Texas and California, and 16 percent in Florida.
Before the court’s ruling last summer, the Voting Rights Act had stopped several potentially discriminating practices, the report said. In 2007, for example, Texas tried to bar candidates who weren’t landowners from running for supervisor of fresh water supply districts. Upon inspection, the Justice Department found that every incumbent supervisor who didn’t own land was Latino, and it didn’t approve the practice, the report said.
Two years later, the report said, the Justice Department stopped Gonzales County, Texas, from reducing the number of bilingual poll workers and removing Spanish-language election procedures that had been in place since the 1970s.
In another Texas example in the wake of the Supreme Court decision, the state has enacted a voter ID law. Critics argue that the law disproportionately targets minorities, including Latinos.
“Now it’s just hunting season on voter protections,” said Weinberg.
Almost 7 million Latino voters live in jurisdictions previously subject to the preapproval requirement, according to the organizations’ report.
“Shelby left us without protection, and Shelby seems to only have emboldened those jurisdictions,” said Rosalind Gold, the senior director of policy at the National Association of Latino Elected and Appointed Officials, referring to the Shelby County v. Holder case.
The report also focuses on Florida’s attempt to purge alleged noncitizens from voting rolls across the state in 2012, a practice initially stopped by the Justice Department but that continued after the Supreme Court decision, the report said. The use of out-of-date Department of Motor Vehicles data became a problem for recently naturalized citizens. More than 60 percent of the Floridians purged from the voter rolls were Latino, according to the Latino officials association.
Voting rights advocates stressed that it was urgent to schedule the hearing for the Voting Rights Amendment Act as soon as possible.
Under the legislation, states with five voting-rights violations within a 15-year period would be subject to federal oversight, as would localities with three violations within the prior 15 years or those with one violation and “persistent, extremely low minority turnout.” The states that would pass that initial threshold are Georgia, Louisiana, Mississippi and Texas.
Justin Levitt, a national voting-rights expert and professor at Loyola Law School in Los Angeles, said that while a legislative fix was needed, voting rights advocates were thinking too small.
“A lot of attention is being paid to statewide measures, but the bigger problem is the small local election issues that require great resources to play a kind of whack-a-mole game,” he said.
Email: vbergengruen@mcclatchydc.com; Twitter: @verambergen.
By Vera Bergengruen
June 12, 2014
WASHINGTON — Citing concerns about new state voter-ID laws and voter roll purges, a coalition of Latino organizations on Thursday called on Congress to push ahead with its update of the federal Voting Rights Act.
Speaking in a news conference on the steps of the Supreme Court a year after justices struck down a key component of the federal law, members of three organizations released a report on what they say are potential problems in states with histories of discrimination.
“We were told that this kind of voting discrimination doesn’t exist anymore,” said Luz Weinberg, a city commissioner from Aventura, Fla., who’s a member of the National Association of Latino Elected and Appointed Officials. “They said, ‘Give us some examples.’ So here are our examples; now it’s time for Congress to act.”
The 5-4 Supreme Court decision last June in Shelby County v. Holder threw out a vital provision of the landmark 1965 legislation. That provision required jurisdictions with histories of voter discrimination to get approval from the Justice Department before they change any election practices. The justices invited Congress to set a new formula adapting the law to changing times.
In response, the bipartisan Voting Rights Amendment Act was introduced in January. In the House of Representatives, Judiciary Committee Chairman Robert Goodlatte, R-Va., whose committee holds jurisdiction over the bill, hasn’t scheduled a hearing. In the Senate, Sen. Patrick Leahy, D-Vt., has said he’ll hold a hearing on the issue of voting rights.
“Chairman Goodlatte should schedule a hearing on the bill, but he has refused,” said Hector Sanchez, the chairman of the National Hispanic Leadership Agenda, a coalition of national Latino organizations. The Mexican American Legal Defense and Educational Fund also contributed to the report. “If in fact he believes that voting discrimination does not exist, then let’s have that debate.”
In a statement Thursday, Goodlatte responded: “I fully support protecting the voting rights of all Americans. As Congress determines whether additional steps are needed to protect those rights, I will carefully consider legislative proposals addressing the issue.” He hasn’t said whether he’ll hold a hearing.
The Voting Rights Act has been used primarily to protect the civil rights of African-Americans. But Thursday’s event highlighted several examples of practices that affect the growing Latino electorate. As of 2012, Latinos made up over a quarter of the voting age populations in Texas and California, and 16 percent in Florida.
Before the court’s ruling last summer, the Voting Rights Act had stopped several potentially discriminating practices, the report said. In 2007, for example, Texas tried to bar candidates who weren’t landowners from running for supervisor of fresh water supply districts. Upon inspection, the Justice Department found that every incumbent supervisor who didn’t own land was Latino, and it didn’t approve the practice, the report said.
Two years later, the report said, the Justice Department stopped Gonzales County, Texas, from reducing the number of bilingual poll workers and removing Spanish-language election procedures that had been in place since the 1970s.
In another Texas example in the wake of the Supreme Court decision, the state has enacted a voter ID law. Critics argue that the law disproportionately targets minorities, including Latinos.
“Now it’s just hunting season on voter protections,” said Weinberg.
Almost 7 million Latino voters live in jurisdictions previously subject to the preapproval requirement, according to the organizations’ report.
“Shelby left us without protection, and Shelby seems to only have emboldened those jurisdictions,” said Rosalind Gold, the senior director of policy at the National Association of Latino Elected and Appointed Officials, referring to the Shelby County v. Holder case.
The report also focuses on Florida’s attempt to purge alleged noncitizens from voting rolls across the state in 2012, a practice initially stopped by the Justice Department but that continued after the Supreme Court decision, the report said. The use of out-of-date Department of Motor Vehicles data became a problem for recently naturalized citizens. More than 60 percent of the Floridians purged from the voter rolls were Latino, according to the Latino officials association.
Voting rights advocates stressed that it was urgent to schedule the hearing for the Voting Rights Amendment Act as soon as possible.
Under the legislation, states with five voting-rights violations within a 15-year period would be subject to federal oversight, as would localities with three violations within the prior 15 years or those with one violation and “persistent, extremely low minority turnout.” The states that would pass that initial threshold are Georgia, Louisiana, Mississippi and Texas.
Justin Levitt, a national voting-rights expert and professor at Loyola Law School in Los Angeles, said that while a legislative fix was needed, voting rights advocates were thinking too small.
“A lot of attention is being paid to statewide measures, but the bigger problem is the small local election issues that require great resources to play a kind of whack-a-mole game,” he said.
Email: vbergengruen@mcclatchydc.com; Twitter: @verambergen.
Read more here: http://www.mcclatchydc.com/2014/06/...for-update.html?sp=/99/200/365/#storylink=cpy
POLITICS
How Shelby County v. Holder Broke America
In the five years since the landmark decision, the Supreme Court has set the stage for a new era of white hegemony.
VANN R. NEWKIRK II11:00 AM ET
Solicitor General Thurgood Marshall testifies before the Senate Judiciary Committee in his confirmation hearing for the Supreme CourtASSOCIATED PRESS
Thurgood Marshall spent much of his career dissenting. Tasked with helping the Supreme Court bridge the gap between Jim Crow and whatever came next, the first black justice and the man whom President Lyndon B. Johnson once called “an advocate whose lifelong concern has been the pursuit of justice for his fellow man” was often forced to write that road map to justice in opposition to his colleagues.
The dissent became Marshall’s canvas, and none was more essential than his partial dissent in the famous 1978 University of California v. Bakkeruling, which upheld affirmative action and the use of race in college decisions, but struck down more radical measures such as quotas. “The experience of Negroes in America has been different in kind, not just in degree, from that of other ethnic groups,” Marshall wrote. “These differences in the experience of the Negro make it difficult for me to accept that Negroes cannot be afforded greater protection under the Fourteenth Amendment where it is necessary to remedy the effects of past discrimination.” Marshall envisioned a Court whose mandate necessitated that it reach through time, destroying the foundation of white supremacy on which the Court itself had been built.
Marshall never truly got the Court he wanted. But his vision did help pull the body into its modern role as an institutional check on white power. Last month, however, the Supreme Court finally closed the book on that vision. Just five years after the landmark Shelby County v. Holderdecision, it’s become clear that the decision has handed the country an era of renewed white racial hegemony. And we’ve only just begun.
Shelby County has been discussed constantly in The Atlantic, and in my work especially. That’s for good reason. In that 2013 decision, the Supreme Court invalidated a decades-old “coverage formula” naming jurisdictions that had to pass federal scrutiny under the Voting Rights Act, referred to as “preclearance,” in order to pass any new elections or voting laws. Those jurisdictions were selected based on their having a history of discrimination in voting. The decision also left it to Congress to come up with new criteria for coverage, which hasn’t happened and probably won’t happen soon. In practice, the decision means that communities facing new discriminatory voting laws have had to file suits themselves or rely on Justice Department suits or challenges from outside advocates—sometimes after the discriminatory laws have already taken effect. Under Attorney General Jeff Sessions, the department hasn’t been interested in filing such suits, meaning that citizens have been on their own.
The results have been predictable. Voter-identification laws, which experts suggest will make voting harder especially for poor people, people of color, and elderly people, have advanced in several states, and some voting laws that make it easier to register and cast ballots have been destroyed. For many of the jurisdictions formerly under preclearance, voting became rapidly more difficult after the Shelby County decision, particularly for poor and elderly black people and Latinos.
Elections have been influenced, and voters have been disenfranchised, since 2013, but that’s all just the preliminary fallout from Shelby County. The real damage can be found in Chief Justice John Roberts’s reasoning in the Court’s decision:
A statute’s “current burdens” must be justified by “current needs,” and any “disparate geographic coverage” must be “sufficiently related to the problem that it targets.” The coverage formula met that test in 1965, but no longer does so.
Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned nationwide for over 40 years. And voter registration and turnout numbers in the covered States have risen dramatically in the years since. Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. There is no longer such a disparity.
Ignoring that deep racial disparities do still exist in every phase of voting, especially in the precincts formerly covered by the Voting Rights Act, Roberts’s legal analysis boils down to the fact that preclearance was very effective in reversing disenfranchisement, so the country no longer needs it. In her dissent, Justice Ruth Bader Ginsburg pointed out the apparent paradox of that reasoning, writing that “throwing out preclearance 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.”
The contrast between these two different views of the Court’s duty to protect voting rights took a back seat to considerations over the practical effects of the decision. After all, why the Supreme Court invalidated the preclearance coverage formula, or what that means for future voting-rights-related decisions, hasn’t mattered much. It hasn’t even mattered that the decision was technically limited, not rejecting the concept of preclearance at all, but sending the matter back to Congress to come up with new criteria. What has mattered in the proliferation of a test round of new laws that make voting more difficult is that Congress currently does not wish to do so. There is functionally now no preemptive federal oversight of state and local voting laws. This will likely be the status quo for the foreseeable future.
Journalists now commonly say that the Court “gutted” the Voting Rights Act. The more appropriate terminology might be to say that it defanged federal enforcement of that act. But looking deeper, it might be even more appropriate to say that the Shelby County v. Holder decision committed violence against the Fourteenth Amendment itself, of which the Voting Rights Act is a distant descendant. That much has been made clearer as the Court, following a thread of reasoning established in 2013, has taken on additional voting-rights cases, and furthered Roberts’s mandate to distance the federal judiciary from Thurgood Marshall’s vision of those bodies as active watchdogs for the Fourteenth and arbiters for America’s racial injustices.
In June, as the Court closed what would turn out to be the last term of Justice Anthony Kennedy’s career, America suddenly got a glimpse of what Roberts’s mandate in Shelby County will mean for voting rights going forward. First, in Husted v. A. Philip Randolph Institute,the Court essentially gave its seal of approval to Ohio’s system of voter purges, in which the state uses a failure to vote as a trigger to begin the multistep process of taking people off voter rolls. As my colleague Garrett Epps has written, the decision was ostensibly made on a narrow statutory analysis of two laws with texts that might seem to be in conflict in this issue, the National Voter Registration Act of 1993 (NVRA) and the Help America Vote Act of 2002. But as Epps also notes, the decision by the Court to essentially allow a loophole creating a legal method of voter-purging challenges both the intent of the NVRA—another pro-voting statute intended to advance access to the ballot among disadvantaged people—and again marks the retreat of the Court from the role Marshall tried to create for it.
Sensing the winds of change, Justice Sonia Sotomayor—who has become the Court’s dissenter in residence—sounded the alarm in her dissent. “The Court errs in ignoring this history and distorting the statutory text to arrive at a conclusion that not only is contrary to the plain language of the NVRA but also contradicts the essential purposes of the statute, ultimately sanctioning the very purging that Congress expressly sought to protect against,” Sotomayor wrote. She continued: The Court’s majority “entirely ignores the history of voter suppression against which the NVRA was enacted and upholds a program that appears to further the very disenfranchisement of minority and low-income voters that Congress set out to eradicate.” In her ominous warning about the Court’s turn, Sotomayor appealed to state politicians, communities, and voting-rights advocates, praising their vigilance but also indicating that they’re now on their own.
Despite her warnings, just a few weeks later the Supreme Court doubled down, providing yet another blow against the VRA and the Fourteenth Amendment. Five years to the day after Shelby County v. Holder, the Court for the most part rejected a lower court’s finding that the Texas Republican Party had intentionally diluted black and Latino votes in legislative and state maps that it had redrawn after racial gerrymandering challenges in 2011. In writing for the majority, Justice Samuel Alito held that the lower court had erred in requiring the Texas GOP to prove that it had purged its discriminatory intent in its new maps, establishing that the legislature had to be presumed in good faith in its current actions, even if recent history detailed a clear record of discrimination and racism. “The allocation of the burden of proof and the presumption of legislative good faith are not changed by a finding of past discrimination,” Alito wrote.
That language extends Roberts’s 2013 logic. As the elections and voting-rights expert Rick Hasen at the University of California at Irvine told NPR, “This decision is going to make it very, very difficult to put any state back under federal preclearance ... by setting a standard that puts the thumb on the scale that favors states, by saying you have to presume the good faith of the legislature.”
With the addition of these new pieces of jurisprudence, the Court has established that not only are the legacies of Jim Crow no longer a valid justification for proactive restrictions on states, but the Court doesn’t necessarily have a role in advancing the spirit of the franchise. Furthermore, with Alito’s gerrymandering decision, the Court holds that past discrimination by states—even at its boldest and most naked—is not really a consideration in assessments of current policies. This part is crucial, because in an era where crafty state politicians have moved toward race-neutral language that clearly still seeks to disenfranchise people of color, a certain default suspicion by federal courts and the Department of Justice based on those state politicians’ histories has been the main protective force for the minorities’ voting rights.
That suspicion is gone now, as are all vestiges of Marshall’s intended vigilance. The full text of the Voting Rights Act may or may not be in danger depending on the nature of the challenges that arise for the next generation of justices, but the damage has already been done. If the act represented a commitment by the federal government to ensure the true fulfilment of the Fourteenth Amendment’s right to due process and the Fifteenth Amendment’s erasure of race-based disenfranchisement, then Roberts’s Court has all but dismantled that commitment.
Marshall donned his robes just after the official close of a 100-year period of white hegemony, during which the Court, in decisions such as Plessy v. Ferguson—which established segregation as legal—acted as a collaborator with white supremacy. As he wrote in his 1978 Bakke opus, “In the words of C. Vann Woodward: ‘By narrow and ingenious interpretation [the Supreme Court's] decisions over a period of years had whittled away a great part of the authority presumably given the government for protection of civil rights.’” Not even close to a century has passed, but this iteration of the Court is very busy whittling.
_______________
We want to hear what you think. Submit a letter to the editor or write to letters@theatlantic.com.
VANN R. NEWKIRK II is a staff writer
https://www.theatlantic.com/politics/archive/2018/07/how-shelby-county-broke-america/564707/
.
How Shelby County v. Holder Broke America
In the five years since the landmark decision, the Supreme Court has set the stage for a new era of white hegemony.
VANN R. NEWKIRK II11:00 AM ET
Solicitor General Thurgood Marshall testifies before the Senate Judiciary Committee in his confirmation hearing for the Supreme CourtASSOCIATED PRESS
Thurgood Marshall spent much of his career dissenting. Tasked with helping the Supreme Court bridge the gap between Jim Crow and whatever came next, the first black justice and the man whom President Lyndon B. Johnson once called “an advocate whose lifelong concern has been the pursuit of justice for his fellow man” was often forced to write that road map to justice in opposition to his colleagues.
The dissent became Marshall’s canvas, and none was more essential than his partial dissent in the famous 1978 University of California v. Bakkeruling, which upheld affirmative action and the use of race in college decisions, but struck down more radical measures such as quotas. “The experience of Negroes in America has been different in kind, not just in degree, from that of other ethnic groups,” Marshall wrote. “These differences in the experience of the Negro make it difficult for me to accept that Negroes cannot be afforded greater protection under the Fourteenth Amendment where it is necessary to remedy the effects of past discrimination.” Marshall envisioned a Court whose mandate necessitated that it reach through time, destroying the foundation of white supremacy on which the Court itself had been built.
Marshall never truly got the Court he wanted. But his vision did help pull the body into its modern role as an institutional check on white power. Last month, however, the Supreme Court finally closed the book on that vision. Just five years after the landmark Shelby County v. Holderdecision, it’s become clear that the decision has handed the country an era of renewed white racial hegemony. And we’ve only just begun.
Shelby County has been discussed constantly in The Atlantic, and in my work especially. That’s for good reason. In that 2013 decision, the Supreme Court invalidated a decades-old “coverage formula” naming jurisdictions that had to pass federal scrutiny under the Voting Rights Act, referred to as “preclearance,” in order to pass any new elections or voting laws. Those jurisdictions were selected based on their having a history of discrimination in voting. The decision also left it to Congress to come up with new criteria for coverage, which hasn’t happened and probably won’t happen soon. In practice, the decision means that communities facing new discriminatory voting laws have had to file suits themselves or rely on Justice Department suits or challenges from outside advocates—sometimes after the discriminatory laws have already taken effect. Under Attorney General Jeff Sessions, the department hasn’t been interested in filing such suits, meaning that citizens have been on their own.
The results have been predictable. Voter-identification laws, which experts suggest will make voting harder especially for poor people, people of color, and elderly people, have advanced in several states, and some voting laws that make it easier to register and cast ballots have been destroyed. For many of the jurisdictions formerly under preclearance, voting became rapidly more difficult after the Shelby County decision, particularly for poor and elderly black people and Latinos.
Elections have been influenced, and voters have been disenfranchised, since 2013, but that’s all just the preliminary fallout from Shelby County. The real damage can be found in Chief Justice John Roberts’s reasoning in the Court’s decision:
A statute’s “current burdens” must be justified by “current needs,” and any “disparate geographic coverage” must be “sufficiently related to the problem that it targets.” The coverage formula met that test in 1965, but no longer does so.
Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned nationwide for over 40 years. And voter registration and turnout numbers in the covered States have risen dramatically in the years since. Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. There is no longer such a disparity.
Ignoring that deep racial disparities do still exist in every phase of voting, especially in the precincts formerly covered by the Voting Rights Act, Roberts’s legal analysis boils down to the fact that preclearance was very effective in reversing disenfranchisement, so the country no longer needs it. In her dissent, Justice Ruth Bader Ginsburg pointed out the apparent paradox of that reasoning, writing that “throwing out preclearance 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.”
The contrast between these two different views of the Court’s duty to protect voting rights took a back seat to considerations over the practical effects of the decision. After all, why the Supreme Court invalidated the preclearance coverage formula, or what that means for future voting-rights-related decisions, hasn’t mattered much. It hasn’t even mattered that the decision was technically limited, not rejecting the concept of preclearance at all, but sending the matter back to Congress to come up with new criteria. What has mattered in the proliferation of a test round of new laws that make voting more difficult is that Congress currently does not wish to do so. There is functionally now no preemptive federal oversight of state and local voting laws. This will likely be the status quo for the foreseeable future.
Journalists now commonly say that the Court “gutted” the Voting Rights Act. The more appropriate terminology might be to say that it defanged federal enforcement of that act. But looking deeper, it might be even more appropriate to say that the Shelby County v. Holder decision committed violence against the Fourteenth Amendment itself, of which the Voting Rights Act is a distant descendant. That much has been made clearer as the Court, following a thread of reasoning established in 2013, has taken on additional voting-rights cases, and furthered Roberts’s mandate to distance the federal judiciary from Thurgood Marshall’s vision of those bodies as active watchdogs for the Fourteenth and arbiters for America’s racial injustices.
In June, as the Court closed what would turn out to be the last term of Justice Anthony Kennedy’s career, America suddenly got a glimpse of what Roberts’s mandate in Shelby County will mean for voting rights going forward. First, in Husted v. A. Philip Randolph Institute,the Court essentially gave its seal of approval to Ohio’s system of voter purges, in which the state uses a failure to vote as a trigger to begin the multistep process of taking people off voter rolls. As my colleague Garrett Epps has written, the decision was ostensibly made on a narrow statutory analysis of two laws with texts that might seem to be in conflict in this issue, the National Voter Registration Act of 1993 (NVRA) and the Help America Vote Act of 2002. But as Epps also notes, the decision by the Court to essentially allow a loophole creating a legal method of voter-purging challenges both the intent of the NVRA—another pro-voting statute intended to advance access to the ballot among disadvantaged people—and again marks the retreat of the Court from the role Marshall tried to create for it.
Sensing the winds of change, Justice Sonia Sotomayor—who has become the Court’s dissenter in residence—sounded the alarm in her dissent. “The Court errs in ignoring this history and distorting the statutory text to arrive at a conclusion that not only is contrary to the plain language of the NVRA but also contradicts the essential purposes of the statute, ultimately sanctioning the very purging that Congress expressly sought to protect against,” Sotomayor wrote. She continued: The Court’s majority “entirely ignores the history of voter suppression against which the NVRA was enacted and upholds a program that appears to further the very disenfranchisement of minority and low-income voters that Congress set out to eradicate.” In her ominous warning about the Court’s turn, Sotomayor appealed to state politicians, communities, and voting-rights advocates, praising their vigilance but also indicating that they’re now on their own.
Despite her warnings, just a few weeks later the Supreme Court doubled down, providing yet another blow against the VRA and the Fourteenth Amendment. Five years to the day after Shelby County v. Holder, the Court for the most part rejected a lower court’s finding that the Texas Republican Party had intentionally diluted black and Latino votes in legislative and state maps that it had redrawn after racial gerrymandering challenges in 2011. In writing for the majority, Justice Samuel Alito held that the lower court had erred in requiring the Texas GOP to prove that it had purged its discriminatory intent in its new maps, establishing that the legislature had to be presumed in good faith in its current actions, even if recent history detailed a clear record of discrimination and racism. “The allocation of the burden of proof and the presumption of legislative good faith are not changed by a finding of past discrimination,” Alito wrote.
That language extends Roberts’s 2013 logic. As the elections and voting-rights expert Rick Hasen at the University of California at Irvine told NPR, “This decision is going to make it very, very difficult to put any state back under federal preclearance ... by setting a standard that puts the thumb on the scale that favors states, by saying you have to presume the good faith of the legislature.”
With the addition of these new pieces of jurisprudence, the Court has established that not only are the legacies of Jim Crow no longer a valid justification for proactive restrictions on states, but the Court doesn’t necessarily have a role in advancing the spirit of the franchise. Furthermore, with Alito’s gerrymandering decision, the Court holds that past discrimination by states—even at its boldest and most naked—is not really a consideration in assessments of current policies. This part is crucial, because in an era where crafty state politicians have moved toward race-neutral language that clearly still seeks to disenfranchise people of color, a certain default suspicion by federal courts and the Department of Justice based on those state politicians’ histories has been the main protective force for the minorities’ voting rights.
That suspicion is gone now, as are all vestiges of Marshall’s intended vigilance. The full text of the Voting Rights Act may or may not be in danger depending on the nature of the challenges that arise for the next generation of justices, but the damage has already been done. If the act represented a commitment by the federal government to ensure the true fulfilment of the Fourteenth Amendment’s right to due process and the Fifteenth Amendment’s erasure of race-based disenfranchisement, then Roberts’s Court has all but dismantled that commitment.
Marshall donned his robes just after the official close of a 100-year period of white hegemony, during which the Court, in decisions such as Plessy v. Ferguson—which established segregation as legal—acted as a collaborator with white supremacy. As he wrote in his 1978 Bakke opus, “In the words of C. Vann Woodward: ‘By narrow and ingenious interpretation [the Supreme Court's] decisions over a period of years had whittled away a great part of the authority presumably given the government for protection of civil rights.’” Not even close to a century has passed, but this iteration of the Court is very busy whittling.
_______________
We want to hear what you think. Submit a letter to the editor or write to letters@theatlantic.com.
VANN R. NEWKIRK II is a staff writer
https://www.theatlantic.com/politics/archive/2018/07/how-shelby-county-broke-america/564707/
.