Wednesday, June 26, 2013

2013 not 1965

Yesterday,the Supreme Court in a 5-4 ruling struck down a key part of the Voting Rights Act.

The decision addressed a 1960s-era provision that largely singled out states and districts in the South that had a history of discrimination and required them to seek federal permission to change their voting laws. The court ruled that the formula determining which states are affected was unconstitutional.

Some reaction to the decision.  First no one is saying the Voting Rights Act was not necessary.   Only those on the irrational left who are using the Voting Rights Acts for partisan political purposes are saying it is still necessary today.

"My father grew up in the Deep South, and I learned from him what transpired before the Voting Rights Act was enacted and why it was necessary at the time. That is not the America we live in today, but the Voting Rights Act was being used as if it is," said Project 21 Co-Chairman Cherylyn Harley LeBon, a former senior counsel to the U.S. Senate Judiciary Committee. "This ruling recognizes that people can change, that America has changed and that a law that presupposes guilt must be reformed to reflect the beauty of human nature."

While there was a rational basis for targeting southern states (plus Alaska) when the preclearance formula was written 50 years ago, continuing to do so until today amounted to geographic profiling based on outdated stereotypes. Decisions based on such irrational stereotypes are the essence of impermissible discrimination.

Although there is already plenty of howling about this decision, this is not a Court that is unsympathetic to voting rights. Just last week, the Supreme Court, by a 7-2 vote, struck down an Arizona law demanding proof of citizenship from people registering to vote. Moreover, even today's decision took a narrow, cautious approach. The Justices did not strike down Section 5 of the Voting Rights Act, just the formula used to implement it. And the heart of the Act, Section 2, remains intact. The overreaction to the decision simply underscores the courage it took for the Supreme Court to right this wrong and end geographic profiling.

RNLA Member James Young on our facebook page made a hyperbolic, but poignant point on the history that necessitated the passage of the Voting Rights Act:

I think the Supreme Court today determined that the GOP has finally succeeded in rooting out the pernicious effects of Jim Crow laws in the South, created and maintained by the Democrat Party!

Carrie Severino, chief counsel, Judicial Crisis Network, on yesterday’s Voting Rights decision: “

As 2012 Census Bureau data now shows, the jurisdictions covered by Section 5 under the outdated formula actually had higher black voter turnout that non-Section 5 states.  Ensuring that all Americans receive equal treatment at the ballot box is fundamental to a democratic society and is too important a mission to be based on 40-year-old data.

More seriously this is another strike against Eric Holder who used the Voting Rights Act as a political weapon against things such as Voter ID.  As Horace Cooper, another member of Project 21, the National Leadership Network of Black Conservatives stated: 

"Federalism and state sovereignty are the big winners today -- and, once again, Eric Holder's Justice Department was the loser," said Project 21 Co-Chairman Horace Cooper, a former constitutional law professor and congressional leadership staff member. "Fundamentally, the position put forward by Justice Department, if accepted, would have created all kinds of distortions that our nation's founders never intended. We all support voting rights, but the quest for voting rights shouldn't come at the expense of preventing voter fraud nor the equal rights of states."

The decision was a victory for voter ID advocates as J. Christian Adams explains:

This decision restores the original post-15th Amendment balance to the Constitution. The opinion quoted the Tenth Amendment, and the Supreme Court asserted the core function of our federal system — to preserve liberty. But the federal balance “is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”

On a broader scale the decision overturns Section 4 of the Voter Rights Act, which essentially rips the teeth out of Section 5.

In other words, the government couldn’t even make an argument that the endemic discrimination that required federal interference in state-level legislative processes still existed. They just argued that because the conditions existed 50 years ago, they might still be a problem today — an argument that lends itself to unlimited exercise. Small wonder the court found this irrational. Note too that Section 4 impacts Section 5. The latter governs redistricting, which is another state-level legislative process that the Department of Justice can block in certain states using Section 4′s preclearance authority. Without Section 4, Section 5 loses its teeth as a process with no jurisdiction any longer. The court left Congress an opening to provide a more rational formula for Section 4, but noted repeatedly that times have changed, and extraordinary intervention will be difficult to justify.

Yesterday was a big step forward for those states who have been waiting for “preclearance” from a partisan Justice Department run by an Attorney General that people on the left and right have called on to step down.  Despite howling from the left, the decision left in place Section 2, which is a permanent, nationwide ban on racial discrimination in voting and can still be used to challenge discrimination practices if they occur. Ironically what it did was take away what had in absence of the problems it was created to address existing anymore, become a partisan political tool to promote the Democratic Party. 

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