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The Supreme Court Says Racism is No More, Strikes Down Key Section of Voting Rights Act

By ARI EZRA WALDMAN

Today, the Court made it harder for the federal government to protect us from states and localities that engage in voter suppression and discrimination.

SupremesThe Voting Rights Act (VRA), a key provision of which was struck down in a case called Shelby County v. Holder, is one of the paradigmatic success stories of the civil rights movement. At issue in this case was the part of the VRA that applied to 9 states (and several other municipalities) that had particularly bad histories of disenfranchising blacks in the Jim Crow South. The law states that before these states can do anything to their voting laws, they have to get the Department of Justice to approve the plan. That way, a white majority could not use its voting power to continue to frustrate African American voting.

Therefore, the law requires and implements fairness in elections because without the right to vote and without the right to have that vote heard (and not be silenced by gerrymandering and other burdens), equality under the law means nothing. It harkens to a time when Congress was both functional and brave, willing and able to confront large national problems -- vast disenfranchisement of African American populations, for example -- and solve them. That the VRA proved to be so good at addressing the problem it was meant to solve is why we're here today: the VRA is a victim of its own success.

Vra_johnsonOr, at least, that's what the Supreme Court's conservative majority would have you believe. The VRA worked, the five conservatives said; there no longer is such egregious and widespread voter discrimination in the South. It's time to move on. But any cursory look at the last election cycle -- voter suppression, gerrymandering, unprecedented burdens and ID requirements for voting -- shows how out of touch the conservatives are.

Shelby County, by hobbling one of the most important legacies of the mid Twentieth Century, is a victory for anti-government conservatives, a win for ethnic majorities worried about losing their stranglehold on the political process, and a long-sought accomplishment for the conservative legal movement. It is a loss for just about everyone else, including basic principles of equality, democracy, and fairness.

AFTER THE JUMP, I briefly discuss the Shelby County decision and explain how it relates to the DOMA and Prop 8 decisions coming tomorrow.

CONTINUED, AFTER THE JUMP...

This case features a lot of disagreements between the majority and the dissent. They disagree on evidence of discrimination and on the relevance of original data on discrimination that brought 9 states under its orbit, for example. I'd like to touch on one major disagreement -- deference to Congress -- and discuss the implications for the upcoming DOMA and Prop 8 decisions. In Shelby County, the majority did not defer to Congress; the liberals think they should have. But in the case of DOMA, it is presumably the liberals who do not want to defer to Congress and the conservatives who would. How can we explain that seeming intellectual dishonesty?

Our previous discussions of the levels of scrutiny are bound up with this topic: the higher the scrutiny level or the more searching review we give, the less deference we give to those who passed the law.

GinsburgAs Justice Ginsburg said in her Shelby County dissent: "When confronting the most constitutionally invidious form of discrimination, and the most fundamental right in our democratic system, Congress' power to act is at its height." And, by implication, courts should defer to that power. Congress overwhelming reauthorized the VRA in 2006, based on troves of data and information and extensive hearings and analysis. Justice Ginsburg's summary of the evidentiary basis for Congressional re-authorization took nearly 1/5 of her entire opinion!

Both what the VRA is meant to do and the basis upon which it was passed stands in stark contrast to the reasons, goals, and bases for DOMA and Prop 8. DOMA is an example of Congress institutionalizing "invidious discrimination," not trying to solve it. DOMA was passed with scant hearings and no evidence; the VRA was passed and reauthorized multiple times, each time with volumes of evidence and extensive hearings. And when Congress acts to discriminate among different groups, its power is at its nadir, thus entitling it to little, if any, deference. The same thing is true for the popular vote in California's Prop 8: when voters are moved to discriminate between different groups on the basis of status alone, that vote is entitled to little deference from the courts.

Shelby County is a bad decision for equality, but one that should not justify deferring to Congressional judgment in DOMA or California voters' judgment in Prop 8. The laws are too different; in fact, they are opposites. The conservatives got it wrong in the VRA case and they had enough votes to transform their error into law. That will not be the case tomorrow.

***

Follow me on Twitter: @ariezrawaldman

Ari Ezra Waldman is the Associate Director of the Institute for Information Law and Policy and a professor at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

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Comments

  1. If we had a functioning Congress this really wouldn't be a big deal. The Court, and the Chief in particular, said that Congress was free to develop a new formula, based on modern data that addressed the section in question.

    Posted by: Eric | Jun 25, 2013 2:52:04 PM


  2. It makes me see red that the majority of the court could disregard indisputable fact and aid in the perpetuation of institutionalized racism like this.

    Posted by: JMC | Jun 25, 2013 2:53:32 PM


  3. Oddly, they'll be using the opposite argument tomorrow against us. No matter how modern and evolved we've become, history on this issue is too weighted to lift the laws.. It's all far too new. Smh

    Posted by: Michaelandfred | Jun 25, 2013 2:58:44 PM


  4. I agree with the decision, but not for the bizarre reasons the Supremes set forth. I think the VRA should apply to all states equally. Pennsylvania is not covered in the VRA, but our legislaturevattempted to enact a draconian voter ID law. If you make it equal for all, then everyone is proteted.

    Of course the Congress will not be able to do anything. This is going to backfire on the conservatives. The midterms will see minority participation never seen before as people fight for their right to vote.

    Posted by: Mike | Jun 25, 2013 3:20:19 PM


  5. OMG it had long out lived its usefulness I live in the souh and in my city Atlanta blacks make up most of the political elite and have for 30+ years times have change and the south has changed are we perfect no but we are not the same society we where 50 years ago, if you can't get that thro your skulls then your the ones who are blinded by prejudice.

    Posted by: Lee | Jun 25, 2013 3:23:56 PM


  6. OMG it had long out lived its usefulness I live in the souh and in my city Atlanta blacks make up most of the political elite and have for 30+ years times have change and the south has changed are we perfect no but we are not the same society we where 50 years ago, if you can't get that thro your skulls then your the ones who are blinded by prejudice.

    Posted by: Lee | Jun 25, 2013 3:23:57 PM


  7. OMG it had long out lived its usefulness I live in the souh and in my city Atlanta blacks make up most of the political elite and have for 30+ years times have change and the south has changed are we perfect no but we are not the same society we where 50 years ago, if you can't get that thro your skulls then your the ones who are blinded by prejudice.

    Posted by: Lee | Jun 25, 2013 3:23:57 PM


  8. OMG it had long out lived its usefulness I live in the souh and in my city Atlanta blacks make up most of the political elite and have for 30+ years times have change and the south has changed are we perfect no but we are not the same society we where 50 years ago, if you can't get that thro your skulls then your the ones who are blinded by prejudice.

    Posted by: Lee | Jun 25, 2013 3:23:57 PM


  9. @Lee It won't do any good to try and reason with people from Ari's background. "Liberal" New York Jews are fed their contempt for white Southerners and for the South in general with their mother's milk.

    Posted by: Rick | Jun 25, 2013 3:57:28 PM


  10. @LEE @RICK

    The US is bigger than ATL.

    Posted by: Eric | Jun 25, 2013 4:01:46 PM


  11. @Eric

    Do you realize that blacks in Mississippi and Alabama voted by 10-1 margins in recent referenda in their state in favor of Constitutional bans on same-sex marriage?

    Do you realize that these people hate and despise you as a gay man?

    Posted by: Rick | Jun 25, 2013 4:04:38 PM


  12. Rick I find your comment just as vile I myself am Jewish and from the south te point I was making is you can't just assume someone's morals/ideology based soly on ethnic background or region of origin.

    Posted by: Lee | Jun 25, 2013 4:05:26 PM


  13. @Lee That is why I said New York Jew. New York Jews and Southern Jews are entirely different animals, at least in my experience they are.

    But if it makes you feel better, I will amend my statement to say that New York "liberals", whether Jewish or not, are socialized with the same mindset about teh South, from birth, and are not about to do anything to challenge their own assumptions about it.

    I know. I have lived in New York City most of my life.

    Posted by: Rick | Jun 25, 2013 4:12:03 PM


  14. What we need are national voting standard laws that all states have to follow. Make them comprehensive and simple. Time to stop states from meddling with laws that prevent people from voting.

    Posted by: jht | Jun 25, 2013 4:16:19 PM


  15. Rick, you are aware that not all gay folks are white, right? I find it doubtful. Thankfully, you also don't prove the point that all white gay men are ignorant bigoted pieces of excrement. Thank you for your excellent assessment as always Ari.

    Posted by: ChristopherM | Jun 25, 2013 4:16:36 PM


  16. @ "I know. I have lived in New York City most of my life."

    We know. They had you confined at Bellevue Hospital in the psychiatric ward...many years. That's where you developed your theory about the "culture of effeminacy" and why you hate and despise Gay men.

    Posted by: Derrick from Philly | Jun 25, 2013 4:26:59 PM


  17. Derrick, I always just assumed a black Jewish drag queen dressed like his mom pushed him down on the playground as a child and took his lollipop.

    Posted by: ChristopherM | Jun 25, 2013 4:43:21 PM


  18. What about the Black Panthers intimidating people at voting precincts in many cities across the country?

    Everyone conveniently leaves that one out.

    Posted by: sean | Jun 25, 2013 4:45:46 PM


  19. @ "What about the Black Panthers intimidating people at voting precincts in many cities across the country?"

    Yep, all 13 members. Did you like their outfits...you know, the berets?

    Posted by: Derrick from Philly | Jun 25, 2013 5:00:13 PM


  20. This decision is not making me feel very hopeful about Prop 8 and DOMA. I remember how I felt when Prop 8 passed, don't want to relive that.

    Posted by: jsb | Jun 25, 2013 5:11:16 PM


  21. http://fablog.ehrensteinland.com/2013/06/25/fait-diver-paula-deen-appointed-to-u-s-supreme-court/

    Posted by: David Ehrenstein | Jun 25, 2013 5:19:30 PM


  22. Bless you @Derrick for making yet another leaden comment thread (thanks to the usual humorless suspects) worth reading, if only for your contributions to it.

    Posted by: Ernie | Jun 25, 2013 5:21:27 PM


  23. Sean, can you cite how many polling places total featured intimidating Black Panthers? Real evidence please.

    Posted by: Kyle | Jun 25, 2013 5:23:31 PM


  24. I have voted at the same polling place, on Tuesdays, for the last 15 years in Florida. The waits have never been as long as a typical wait in Suburban Maryland or Northern Virginia. When I lived in San Francisco, in a mostly black neighborhood, there was little or no waiting at the polls.

    So who waited at the polls in Florida this last time? People who arrived by the busload, on a special day (not election day) and who swamped an early voting site. People at select polling places RUN BY DEMOCRATS who all showed up right before it closed. That's who.

    It's like these ridiculous news items where there are lines of people to buy lottery tickets. Never have I had to stand in line to buy a lottery ticket. Why? Because I am not crossing state lines to do it, I'm not showing up at 9PM when sales close at 10PM, and I'm not trying to buy my ticket at the super lucky liquor store in Alastawhicha that sold a winner two years ago.

    Posted by: David Hearne | Jun 25, 2013 5:31:36 PM


  25. Lee, as a fellow Atlantan I implore you to learn to spell and punctuate. You don't represent our city very well when you write posts that look so uneducated.

    Posted by: DW | Jun 25, 2013 5:32:47 PM


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