The Supreme Court Rocks the Voters

Throwing rocks at an improbably Aryan-looking target

There has always been one problem with the phrase “Rock the Vote” — that someday the Supreme Court might take it literally. That day came today.

Tomorrow we will get a good look at the state of gay rights, but let’s stop today to pay our respects to what was once known as the “Crown Jewel of the Civil Rights Movement,” the Voting Rights Act.  I’m not going to summarize the outcome of the case in Plain English, because Amy Howe of the by-now-famed site SCOTUSblog — to which many of you will be tuning in tomorrow morning — already has.

Today’s holding in Shelby County v. Holder, in Plain English: Today the Court issued its decision in Shelby County v. Holder, the challenge to the constitutionality of the preclearance provisions of the Voting Rights Act. That portion of the Act was designed to prevent discrimination in voting by requiring all state and local governments with a history of voting discrimination to get approval from the federal government before making any changes to their voting laws or procedures, no matter how small. In an opinion by Chief Justice John Roberts that was joined by Justices Scalia, Kennedy, Thomas, and Alito, the Court did not invalidate the principle that preclearance can be required. But much more importantly, it held that Section 4 of the Voting Rights Act, which sets out the formula that is used to determine which state and local governments must comply with Section 5’s preapproval requirement, is unconstitutional and can no longer be used. Thus, although Section 5 survives, it will have no actual effect unless and until Congress can enact a new statute to determine who should be covered by it.

Recasting the words of that last line: never fear, this can all be fixed!  All we need to do is to get 218 Members of the House of Representatives and 51 — no, now given the Republican filibuster machine we have to make that 60 — Senators to agree on which states can’t be trusted to protect minority voters from discrimination.

This won’t happen, Chief Justice Roberts knows it won’t happen, and that it won’t happen is the point.  The Court took away the ability of regulators to go after “bad actors”; now it can only be accomplished by lawsuits.  You know — those things that Republicans hate.  Those things that (where voting rights are concerned) are funded by largely charity and volunteerism, whereas the defense is paid lavishly by your tax dollars.

People telling you that this is a minor and incremental position are lying, deluded, ignorant or intoxicated.  Luckily, I found some who aren’t.

Let’s start with Heather Gerken in Slate for some history:

UPDATE: I see that I forgot to include another article from Slate to go with my “crown jewels” reference.  I’ll fix that!   This part in brown font is from Gerken — and there’s plenty more where this came from!

The Supreme Court struck down the crown jewel of the Civil Rights movement today. Section 5 was the most powerful tool in the movement’s arsenal. Although I’m a law professor and thus supposed to be opining on the court’s decision and Congress’ potential response, I want to spend a little time mourning Section 5’s passing before hashing out the consequences.

To understand why Section 5 was special, you have to know a bit about its history. The brutal attacks on civil rights marchers crossing the Edmund Pettus Bridge provided the push needed to pass the Voting Rights Act. When the Voting Rights Act passed in 1965, almost no African-Americans were registered to vote in the Deep South due to brutal repression and sickening legal chicanery.  Civil rights litigators and the Department of Justice were doing their best to help. They filed lawsuit after lawsuit to make it possible for blacks to register. But every time a court deemed one discriminatory practice illegal, local officials would switch to another. Literacy tests, poll taxes, burdensome registration requirements—these techniques were all used to prevent African-Americans from voting. Southern voting registrars would even resign from their positions as soon as a lawsuit was on the cusp of succeeding, thereby sending the case back to square one. The Voting Rights Act aimed to change all of this.

Section 5 was the most important and imaginative provision in the law. It required certain states and jurisdictions, mostly in the South, to ask the federal government’s permission before making any change—no matter how small—in the way they run elections. Until a rule was “precleared,” it could not go into effect. This unusual provision solved the central problem of voting-rights enforcement during the civil rights era—keeping up with the increasingly creative strategies recalcitrant state and local governments used to disenfranchise voters. Section 5 shifted the burden of inertia, allowing the Department of Justice to get one step ahead of local officials.

It worked. It worked miraculously well, in fact. In a remarkably short period, African-American registration rates shot up. Section 5 mattered especially for the Deep South, where there were large concentrations of black voters. By the 1990s, these states were able to send a historic number of black representatives to Congress.  But Section 5 didn’t just matter for the big-ticket races. For decades it provided strong protections for minority voters in local and state elections as well as federal ones. Based on those successes, Congress renewed Section 4’s “coverage formula”—the provision that determines which jurisdictions have to preclear changes and which don’t—again and again.

Next, here’s Emily Bazelon in Slate:

Chief Justice John Roberts’ opinion on the Voting Rights Act takes away one of the most important tools for ensuring minority rights that Congress has ever created. Yet the opinion sounds respectful and modest. This is the genius of John Roberts. He makes big steps to the right look like small ones. He is the master of conservative stealth, a chief justice who eschews flair and drama. In that sense, he’s the anti-Scalia—no flame throwing, thank you. Just getting the job done.

But it’s laughable to think this divided Congress would take on that task. And of course Roberts knows that. For all practical purposes, Tuesday’s decision means the end of Section 5. That means unfair voting rules just got much harder to stop. Exhibit A: the voter ID law in Texas, blocked by Section 5, which will now “take effect immediately,” the state attorney general says. Exhibit B: the gerrymandering that created the 23rd Congresssional District in Texas, which I wrote lots about here. It’s a part of Texas with lots of Hispanics. They tend to vote for Democrats. But in 1992, the Republican-controlled legislature redrew the 23rd Congressional District to include more Republican voters. They elected a Republican to Congress. In 2003, they moved 100,000 Latinos out of the district to keep the seat Republican. In 2006, the Supreme Court ruled that the district violated the Voting Rights Act (not the part at issue in today’s case—another part called Section 2, which is alive and well). Texas went back to the drawing board. With new lines that included more Democrats, a Democrat won the next congressional election. But after the 2010 census, the Republicans in control of the state tried again. This time, they were clever. In the words of the court that heard a challenge to the new lines, the mapmakers “consciously replaced many of the district’s active Hispanic voters with low-turnout Hispanic voters in an effort to strengthen the voting power of CD 23’s Anglo citizens. In other words, they sought to reduce Hispanic voters’ ability to elect without making it look like anything in the CD 23 had changed.” Lo and behold, the new district elected a Republican.

Because of Section 5 and the requirement that states get changes like this preapproved, the court that rejected the new lines for Texas’ 23rdCongressional District last August did so quickly, before the Republican holding office could wield the power of incumbency to consolidate his power. But without Sections 4 and 5, as civil rights lawyer Nina Perales put it to me, “The first election after redistricting goes to the discriminators.”

There’s even more, but that’s all I can quote.  You’ll want to start reading from right there, where Roberts explains that because the discrimination of today isn’t the sort of violent and disgusting and obvious discrimination of the past, like giving minority voters so-called “literacy tests” that were impossible to pass (and therefore not given to white voters, who were above suspicion of illiteracy), we have no greater reason to suspect that the people of such jurisdictions are going to try to keep them from voting.

Hey, here’s a question relevant to other discussions in these pages: who do you think is more likely to try to prevent or discourage minorities from voting: Curt Pringle, who did it back in 1988, or Loretta Sanchez, who hasn’t?  Do you think that he law requires us to treat them with equal suspicion?  Do you want to be able to double-check and see if what Pringle does in this respect is OK, more than you would for Loretta?  If so, you’re pretty reasonable — but, according to Chief Justice Roberts, also acting unconstitutionally.

His theory for why this is so?  conservative law professor in Slate mocks Roberts’s exercise in activist judging — in this case making up a new doctrine of “equal sovereignty” — that the Constitution requires that all states be treated equally.

Roberts focuses on the offense to the sovereignty of states and a newly invented idea he calls the “fundamental principle of equal sovereignty.” State sovereignty means that the federal government should not intrude on political decision-making of states, including, Roberts says, their election laws; equal sovereignty means that when it does, it should intrude equally—on all of the states to the same degree. 

That leaves the “fundamental principle of equal sovereignty,” the idea that Congress may not single out certain states for special burdens. Yet Roberts is able to cite only the weakest support for this principle—a handful of very old cases that address entirely different matters. None of the usual impressive array of founding authorities show up in his analysis, even though the founding generation took state sovereignty much more seriously than we do today.

Still, it is worth looking at this principle. What exactly is wrong with the singling out of states by the federal government? Is the idea that when Alabama is on the playground with the other states, they’re going to make fun of it because it had to ask its mama for permission before going out to play? In fact, the federal government doesn’t treat states equally and couldn’t possibly. Nearly all laws affect different states differently. Disaster-relief laws benefit disaster-prone states at the expense of disaster-free states. Pollution-control laws burden industrial states. Progressive taxes burden states where the rich are concentrated. Thanks to Congress, the Environmental Protection Agency can single out states with serious pollution problems, the Justice Department can keep an eye on states with serious corruption problems, and immigration authorities can single out border states for surveillance.

Go read the rest, too.  This new theory is made-up, result-oriented crap designed to keep those who make decisions offensive to the Constitution from having to face the music.  It is actually doing what people accuse liberal judges of doing: “inventing rights.”  Except, in this case, what’s being invented is an anti-right — a way to justify letting those who would throw stones at prospective voters to keep them away from the polls get away with it.

By the way, do you know who had a storied history of vote suppression back in the day?  Here, take a look:

Lito Pena is sure of his memory. Thirty-six years ago he, then a Democratic Party poll watcher, got into a shoving match with a Republican who had spent the opening hours of the 1964 election doing his damnedest to keep people from voting in south Phoenix.

“He was holding up minority voters because he knew they were going to vote Democratic,” said Pena.

The guy called himself Bill. He knew the law and applied it with the precision of a swordsman. He sat at the table at the Bethune School, a polling place brimming with black citizens, and quizzed voters ad nauseam about where they were from, how long they’d lived there — every question in the book. A passage of the Constitution was read and people who spoke broken English were ordered to interpret it to prove they had the language skills to vote.

By the time Pena arrived at Bethune, he said, the line to vote was four abreast and a block long. People were giving up and going home.

Pena told the guy to leave. They got into an argument. Shoving followed. Arizona politics can be raw.

Finally, Pena said, the guy raised a fist as if he was fixing to throw a punch.

“I said ‘If that’s what you want, I’ll get someone to take you out of here’ “

Oh, let’s cut to the chase:

The guy Pena remembers tossing out of Bethune School prospered, too. Bill Rehnquist, now better known as William H. Rehnquist, chief justice of the Supreme Court of the United States.

In other words, he was a thug.  And do you know who Chief Justice Rehnquist’s protege and most famous clerk was?

A guy named John Roberts.  You may know him as the author of today’s opinion — the one on voting rights.

About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)