It’s a huge defeat for the civil rights community on the most important civil rights law ever passed.
The Court has revoked and canceled part of Martin Luther King’s dream.
(Reverend Al Sharpton, The Huffington Post, June 25, 2013)
Given the way Black civil rights activists reacted, you’d think the decision the Supreme Court handed down yesterday reinstated all of the barriers to voting that Blacks faced in the Jim-Crow South over 50 years ago. But nothing could be further from the truth.
Section 4 of the Voting Rights Act of 1965 (VRA) imposed federal oversight over states with a history of erecting racial barriers to voting. The Court merely ruled that changed circumstances made this section no longer relevant, which makes it (and it alone) not unconstitutional, but constitutionally suspect.
Alas, as is now typical of all Court rulings, this one fell along ideological lines (5-4) – with Chief Justice John Roberts siding with conservative Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito to strike down Section 4.
Here, in part, is how Roberts justified their ruling:
In 1965, the states could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics. Congress based its coverage formula on that distinction. Today the nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.
(New York Times, June 25, 2013)
I agree.
Frankly, with all due respect to a “deeply disappointed” President Obama, only people with a flat-earth regard for the changed circumstances Roberts cites can take issue with this ruling.
Because any fair-minded civil rights activist would have agreed when Roberts pointed out the damning irony that Alabama has a better record today – when it comes ensuring fair and equal access to the voting booth – than Massachusetts. Hell, White politicians in Pennsylvania did more to try to prevent Blacks from voting in last year’s presidential election than White politicians in Mississippi….
Not to mention affirming reports that, in five of the six states covered by Section 4, Blacks had a higher voter turnout than Whites last year.
But let me hasten to clarify that this ruling does not prohibit the Justice Department from filing charges against any state that imposes voting requirements that discriminate against Blacks. And, for the record, I see nothing discriminatory (or too burdensome) about voter ID laws, which require all voters to present proper ID. After all, in absolute numbers, this might prove a greater barrier to many more (poor and elderly) Whites than Blacks, making it clearly more logistical than racial.
Nonetheless, liberal Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan – with whom I usually agree – were indignant.
Here, in part, is how Ginsburg justified their dissent:
The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective. The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed.
The record for the 2006 reauthorization makes abundantly clear [that] second-generation barriers to minority voting rights have emerged in the covered jurisdictions as attempted substitutes for the first-generation barriers that originally triggered preclearance in those jurisdictions.
(Huffington Post, June 25)
Except that this argument smacks more of political pandering than judicial reasoning; especially when one considers that many of these covered jurisdictions now provide greater access to the voting booth for Blacks than many non-covered jurisdictions – an irony Roberts duly pointed out with his juxtaposition of Alabama and Massachusetts.
Moreover, Roberts declaimed that this irony and the second-generation barriers Ginsburg cites should compel activists to lobby Congress, not the Court, to pass new legislation to bring all 50 states under Section 4-like federal oversight.
In which case, every state would be subjected to Section 5 of the VRA, which for some inexplicable reason the Court did not rule on. Section 5 is the enforcement mechanism of Section 4, which requires covered states to have all changes in their voting laws “pre-cleared” by the U.S. Attorney General or declared legal by a federal court in Washington, D.C., before they go into effect. Got that?
In any event, it is unfair, untenable, and unconstitutional for the government to continue treating a few states in the South as if they are stuck in the 1950s, while giving a pass to others in the North that are actually behaving as if they are.
That said, it would be remiss of me not to comment on Justice Clarence Thomas, the only Black on the Court, siding with the conservative majority in striking down this “hallowed” section. Nobody has been more critical of the way Thomas has consistently voted against the interests of Black folks. My most recent commentary on his seemingly pathological self-loathing in this respect, “Supreme Justice Clarence Thomas Speaks…?” The iPINIONS Journal, October 1, 2007, will attest to this.
In fact, his voting record has caused most Blacks to develop such a visceral disregard for him that, even if Thomas were to suddenly rule in their interest, none of them would commend him. Such is the sanctioned antipathy towards Thomas that even an elected politician saw nothing wrong with dismissing him yesterday as an “Uncle Tom.”
By contrast, though based solely on the backhanded logic that even a broken clock is right twice a day, I fully appreciate that even Thomas can be right once or twice. He happens to be right in this case.
NOTE: Apropos of irony, this time last year liberals were hailing Chief Justice Roberts as a hero for drafting the majority opinion upholding Obamacare; today they are damning him for drafting the majority opinion “striking down” the Voting Rights Act.
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