Saturday, January 10, 2009

US Supreme Court to Hear Challenge to the Voting Rights Act

As you can tell from the title of this post, the US Supreme Court has agreed to hear a challenge to the Voting Rights Act.

Jack and Jill Politics did 2 posts on this today explaining what's happening.

First one:US Supreme Court to Hear Challenge to the Voting Rights Act

Major props to JJP commenter, Miranda, for finding this story on a new challenge to the Voting Rights Act . . . We should take the following as an opportunity to educate ourselves and each other about OUR voting rights . . .

via USA Today:
By Joan Biskupic,

The Supreme Court announced Friday that it will hear a challenge to the landmark 1965 voting rights act, paving the way for a major decision this term on federal power to oversee state election laws.

In the backdrop is the recent election of Barack Obama and the question of whether America still needs an expansive law protecting against discrimination in voting now that a black man has won the presidency.

A decision in the case from Texas, to be heard in April, could impact the U.S. government's authority to ensure that racial minorities — who were subjected to literacy tests and other devices to keep them from the polls for most of the 20th Century — continue to have as much of a chance as whites to elect candidates of their choice.

In dispute is the 2006 renewal of the Voting Rights Act, which Congress passed overwhelmingly and President Bush signed.

I must admit that I'm surprised the Court is even taking time to hear this case. The purpose of the Voting Rights Act (as I've interpreted) has always been a matter of access to the ballot - a concern that was wholly distinguishable from whether or not America ever had the guts to elect the first black President.

But here we have a challenge to the Voting Rights Act based on what I consider to be a weak legal premise:

continued from USA Today:
"A Texas utility district says the provision known as Section 5, which gives the U.S. government authority to oversee state electoral-law changes, is no longer needed and is unconstitutional. The utility district uses the election of the first black president as evidence.

'The America that has elected Barack Obama as its first African-American president is far different than when Section 5 was first enacted in 1965,' say lawyers for the utility district.'"

Umm, yeah . . . that appears to be the jist of their legal challenge - we elected the black guy.

Talk about a slippery slope. You know, race relations have changed since the Civil War as well. So why not do away with the Civil War Amendments? I mean, who needs those pesky 13th, 14th, and 15th Amendments anyways.

It's important to note that this is a challenge to Section 5 of the Voting Rights Act, not necessarily the Voting Rights Act in its entirety. However, Section 5 is a very important provision.

What does Section 5 do?

Well, in effect, Section 5 of the Voting Rights Act requires "preclearance" for "covered jurisdictions" that wish to make changes to their voting rights laws. "Covered jurisdictions" are explained in Section 4 of the Voting Rights Act. (more info after the jump)

Here's some information on Section 5 of the Voting Rights Act (via the U.S. Department of Justice):
Under Section 5, jurisdictions covered by these special provisions could not implement any change affecting voting until the Attorney General or the United States District Court for the District of Columbia determined that the change did not have a discriminatory purpose and would not have a discriminatory effect. In addition, the Attorney General could designate a county covered by these special provisions for the appointment of a federal examiner to review the qualifications of persons who wanted to register to vote. Further, in those counties where a federal examiner was serving, the Attorney General could request that federal observers monitor activities within the county's polling place.

The Voting Rights Act had not included a provision prohibiting poll taxes, but had directed the Attorney General to challenge its use. In Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966), the Supreme Court held Virginia's poll tax to be unconstitutional under the 14th Amendment. Between 1965 and 1969 the Supreme Court also issued several key decisions upholding the constitutionality of Section 5 and affirming the broad range of voting practices that required Section 5 review. As the Supreme Court put it in its 1966 decision upholding the constitutionality of the Act:

Congress had found that case-by-case litigation was inadequate to combat wide-spread and persistent discrimination in voting, because of the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered in these lawsuits. After enduring nearly a century of systematic resistance to the Fifteenth Amendment, Congress might well decide to shift the advantage of time and inertia from the perpetrators of the evil to its victims.

South Carolina v. Katzenbach, 383 U.S. 301, 327-28 (1966).

It's disturbing to see that the U.S. Supreme Court has decided to hear this challenge. Section 5 provides some of the teeth by which the Federal Government may enforce the law. Even more disturbing is the fact that this challenge comes just after Washington reauthorized the Voting Rights Act (including Section 5) in 2006.

Section 5 is not a permanent provision of the Voting Rights Act (although Section 2 is). It must be reauthorized (and it has) from time to time. However, states are not defenseless against the special provisions of the Voting Rights Act. In fact, Section 4 provides a "bail-out" wherein jurisdictions may seek to terminate coverage under the special provisions.

Soooo . . . If race relations have progressed as much as petitioner claims, then it would appear that it'd have little trouble applying for and receiving a bail-out as a case-by-case basis.

But apparently that's not good enough for them. No, the prospect of a bail-out appears insufficient. Instead, petitioner has asked the Court to declare Section 5 unconstitutional; an act that threatens to completely strip victims of voting rights violations from protections of preclearance altogether.

The American Civil Liberties Union released the following press-release, which reads, in part:
The Voting Rights Act provision, known as Section 5, requires certain jurisdictions that have a history of racial discrimination in voting to obtain advance permission from the federal government before changing their election laws. Congress overwhelmingly approved the reauthorization of the Voting Rights Act in the summer of 2006 and President Bush signed it into law. Yet, in a direct challenge to this crucial civil rights law, the Austin utility district asked a federal court to declare Section 5 unconstitutional.

In May 2008, a federal district court soundly rebuffed the district's request to have the provision declared unconstitutional.

The following can be attributed to Laughlin McDonald, Director of the ACLU Voting Rights Project:

"Racial and language minorities remain politically vulnerable, warranting the continued protection the Voting Rights Act provides. Despite significant progress over the years, the Voting Rights Act's preclearance provision remains an essential tool to remedy and prevent discrimination at the ballot box. Without this protection, too many citizens will be denied the opportunity to exercise their right to vote, or will have their votes diluted. We are hopeful that the Court will uphold the Voting Rights Act in its entirety so that we can continue to make progress."


Study up and be prepared. Educate yourselves and others. Stay one step ahead of what's going on. The Court hears this case in April. This could be a major setback for civil rights should this challenge succeed.

This does not mean that the Supreme Court is going to take your right to vote away. But a successful challenge to Section 5 could make voting that much more difficult in the future. Add that to the shenanigans we've seen with purged voter rolls, faulty ballots and hackable electronic voting machines???? We could be facing a major problem heading into the 2010 and 2012 elections.

We just voted on November 4th. The time to protect our right to vote in 2010 and 2012 starts NOW!


Second Post:Let’s Talk About Section 5 Of The Voting Rights Act

In an odd coincidence, I've had to do some background research on section five of the Voting Rights Act while working on another story for the American Prospect. So I have some more to add to B-Serious' post on the VRA challenge heading to the Supreme Court. I spoke to Kristen Clarke of the NAACP Legal Defense Fund yesterday, who gave me the story on the VRA's renewal passed by Congress in 2006.

It's mad important that Congress reviewed the preclearance provision of the VRA less than three years ago and passed it. That's part of what makes the Supreme Court's willingness to hear this case really suspicious, at least in my view. At the time, the Republican Chairman of the House Judiciary Committee said “The need for the Voting Rights Act is as great now as it was 24 years ago”. Clarke explained that both Houses of Congress heard hours and hours of testimony on both sides of the issue. “The great weight of that evidence at the end of the day pointed to the very strong and continuting need to renew the section five preclearance provision,” says Clarke. So after exhaustive research on whether or not preclearance was still necessary in those areas where it still exists, Republican congress passed it, and it was signed by a Republican President.

What makes me nervous about the Supreme Court willing to hear this challenge to Section 5 is simply this: The argument being made here is no different than the one that was made in 1965, when black people simply weren't allowed to vote in the south--that this is an infringement on state sovreignty and that it makes the states that have preclearance feel bad. I'm sorry, but people's right to vote is more important than your feelings. From the New York Times:
There is no reason, the district’s lawyers told the justices, to presume “that jurisdictions first identified four decades ago as needing extraordinary federal oversight” today remain “uniformly incapable or unwilling to fulfill their obligations to faithfully protect the voting rights of all citizens in those parts of the country.”

No assumption need be made, because Congress investigated and found sufficient evidence of ongoing discrimination less than three years ago. The court won't be doing any investigating, if anything they'll be assuming that preclearance is no longer needed based on an argument that has been rebuffed before. They'll be deciding whether preclearance is an infringement on states' rights. 50 years of cases says it isn't.

But of course if you came to John Roberts and told him that a black man had been shot by police while lying face down and restrained on the pavement he'd find it really offensive that you mentioned the man was black.

The reason why Republicans are excited about it is because preclearance prevents them from passing restrictive laws in southern states. Whereas this election year, you saw voting rights groups basically filling the role of the Bush Justice Department in protecting our right to vote by litigating cases all over the country, preclearance prevents costly litigation in those areas where discrimination is most likely to occur. Also, while voting rights groups gather evidence to prepare their cases, the descriminatory laws stay on the books.

I'll say this: there should be a way for states to get off preclearance, to prove that they can be trusted. But the Court, if it decides preclearance is unconstitutional, won't be doing that. They'll be removing 50 years of voter protections wholesale, just a few years after Congress renewed them. That's called legislating from the bench.

We know how the GOP plays the game. They push for the kind of restrictive election laws that will push down black and Latino votes, because we're more likely to vote for Democrats. Removing preclearance will make all that easier. Which is why they want it gone.


I hope this gave enough background about the case. Mirror On America will be sure to follow this case at the Court.

1 comment:

Anonymous said...

Inalienable. As in "innate", "inherent", "intrinsic". As in, "cannot be bought, sold, traded away or taken from".

Voting rights are the means of granting or witholding consent to how we are governed. They are inalienable rights. We HAVE the inalienable (innate, inherent, intrinsic) right to vote, the problem is getting our fellow Americans to recognize and respect that fact. If they recognized and respected that fact, we DC denizens could participate in decisions about our nation like the rest of our countrymen.