RACISM ON THE SUPREME COURT?

On June 25, 2013, the U.S. Supreme Court ruled, in a 5 to 4 decision, that key provisions of the Voting Rights Act (VRA) were unconstitutional. The case was formally known as Shelby County, Alabama v. Eric H. Holder, Jr., Attorney General. Chief Justice Roberts wrote for the majority (which included Justices Scalia, Kennedy, Thomas, and Alito) that “Our country has changed” and claimed that it had done so so dramatically since the initial passage of the VRA in 1965 that the VRA was now not only unneeded but unconstitutional.

This decision was shocking to many, in part because the Act had been reauthorized in 2006 by overwhelming majorities in Congress and signed into law without controversy by President George W. Bush. The Congressional vote, with Republicans in control of both the House and the Senate, was 390 to 33 in the House and 98 to 0 in the Senate in favor of reauthorizing, i.e., extending, the Voting Rights Act.

The over 15,000 pages of evidence compiled by Congress in its review of the VRA in 2006 indicated that it was still badly needed. The Chair of the House Judiciary Committee, Republican Representative James Sensenbrenner of Wisconsin, a conservative, noted that evidence had been “assembled to show the need for the reauthorization of the Voting Rights Act” and that it documented “the extensive record of continued abuse” of voting rights. [1]

This extensive evidence clearly established that the country hadn’t changed much since the VRA’s enactment in 1965 with respect to efforts to impede voting by Blacks in some areas, particularly the South. It documented relentless efforts in some states to counter the effects of the VRA. The on-going nature of these efforts was confirmed by actions taken almost immediately after the Court’s ruling overturning the VRA. (See some specifics below.)

The Supreme Court in effect ruled that Congress had acted irrationally in 2006 in reauthorizing the VRA. Chief Justice Roberts’ and his colleagues’ decision was based on their version of reality, which was in contradiction to the evidence amassed by Congress. Roberts probably wouldn’t have been persuaded by any evidence, given that he had worked zealously in 1981, when he was at the Justice Department, to roll back the protections of the VRA.

At best, the Court’s decision was a failure of empathy or a triumph of ideology, but more likely it reflected racism.

Justice Scalia, in the oral arguments leading to the decision, described the VRA as being a “perpetuation of racial entitlement” and stated that he didn’t believe any legislator would vote to end such an entitlement once society had adopted it. Therefore, it was up to the Court to declare it unconstitutional, because this was the only way to end this racial entitlement. [2] Why the right to vote, which is a core principle of our democracy, would be considered a “racial entitlement” is hard to understand except from the perspective of racism.

The irony here, of course, is that the racial entitlement that exists in U.S. society is the entitlement of Whites. For most of the two hundred years of its existence, there were all White elected officials, police forces, corporate executives, judges and juries, as well as schools, colleges, and teachers, to list a few examples. And while our country has begun to change in this regard, there still is a long way to go to achieve anything close to equity.

What occurred after the elimination of the protections of the VRA has made it clear how virulent efforts to suppress voting, particularly of Blacks, are today. Within two hours after the Supreme Court issued its decision on the VRA, Texas took steps to reinstitute its strict photo ID law, which had previously been struck down by a federal court. The day after the decision, North Carolina amended a pending bill to make its voter ID law stricter and added other provisions eliminating or restricting opportunities to vote that targeted minority voters. Changes in voting procedures in other states, which had previously been blocked by the federal government under the VRA, were quickly implemented.

After years of litigation, federal courts have forced the reversal of the actions of Texas and North Carolina because their changes in voting laws were found to be intentionally racially discriminatory. However, in the intervening years, the discriminatory provisions were in effect. Overall, federal courts have now ruled that at least 10 of the new, state restrictions on voting were illegal.

In the five years since the Supreme Court’s overturning of the VRA, nearly 1,000 polling places have been closed, many of them in predominantly Black areas. Access to early voting has been cut, voters have been purged from the lists of eligible voters, and requirements to show a voter ID or provide proof of citizenship have been implemented. [3] Nine states had been subject on a statewide basis to VRA oversight of changes in voting procedures (Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia). In every one of them at least one of the above five impediments to voting has been implemented (the average was 2.3 impediments). Eight of the 9 moved or eliminated polling places and 8 of 9 implemented new voter ID requirements. Four of these impediments to voting were implemented in each of two other states, where only parts of the states had been subject to the VRA (Florida and North Carolina).

Clearly, the Supreme Court majority was in error when they concluded that the country had changed and the protections of the VRA were not only no longer needed, but had risen to the level of being unconstitutional oversight of states’ elections by the federal government. Given that the Court is extremely unlikely to reverse itself, it is up to Congress to pass a new VRA that will fill the gaps in the protection of voting rights created by the Court’s decision.

I urge you to contact your U.S. Representative and Senators to ask them to support a new Voting Rights Act. Our democracy should be encouraging and supporting voting by all eligible voters, and not allowing states or local jurisdictions to implement impediments to voting – especially when those impediments have disproportionate effects on Black Americans.

You can find contact information for your US Representative at http://www.house.gov/representatives/find/ and for your US Senators at http://www.senate.gov/general/contact_information/senators_cfm.cfm.

[1]      Fountain, B., 2018, Beautiful Country Burn Again, HarperCollins Publishers, NY, NY. Quotations from page 406.

[2]      Fountain, B., 2018, see above. Quotation from page 409.

[3]      U.S. Commission on Civil Rights, 2018, “An assessment of minority voting rights access in the U.S.: 2018 statutory report.” (https://www.usccr.gov/pubs/2018/Minority_Voting_Access_2018.pdf)

6 comments

  1. Richard, well said!! I agree with everything you’ve written. I’m reading “The color of law” right now, which powerfully makes that case that residential segregation is not de facto but de jure, i.e., caused and created by government policies. I’ve also heard that “White fragility” is a powerful book to read for those of us who are struggling to face up to the reality of the racist history and present of this country.

    We’re doing well, as are David & Amy. Hope you are too. We’re planning a trip for August to visit our sister who’s having her 70th birthday. See lives up near Kamloops, so we’re thinking we might fly to Vancouver or Seattle and then drive to Kamloops and on to Banff and fly back from Calgary. Maybe we could catch-up with you and others in the Seattle area!

    Best to you and Margaret!

  2. The dark side is certainly playing the long game. I think many of us, including myself, had assumed this was America. Things would slowly get better over time as a natural course of things. America’s love of freedom and caring principles would slowly makes things better and better. But I think the arc of justice bends toward those who push it the most. If you lookup complacency I am sure my name is listed. No more.

    1. John A Lippitt · · Reply

      The right has been playing with a long-term perspective. They started at least in the 1960s and have built up to where they are today. For better or worse, their extremism seems to have blinded them to the horrors of Trump and that their strategy enabled his election. The silver lining of the 2016 election was that many people in the US woke up and realized that democracy is not a spectator sport – that the arc of power and policies bend toward those who are engaged and work at advocacy, as you note.

  3. carolyn fleiss · · Reply

    Thanks John, I found this to be very informative. Getting out the vote on the democratic side is crucial to win in 2020. Carolyn

    Sent from my iPad

    >

    1. Thanks, Carolyn. Yes, we’ve got to keep increasing voter turnout and engagement. Not only the direct voter suppression, but also the nasty, negative campaigning, tend to discourage and keep people from voting. We’ve got to counter that.

  4. Richard Haines · · Reply

    Hi John.

    I am totally there with you. In fact, I have been composing my own little biased article (at least in my head 🙂 over the past several weeks. It’s based upon my belief that we need face straight on our original sin as a country – racism. Beginning with running natives off their land, importing and enslaving Africans to build our farms, indenturing and then casting aside Chinese to build our railroads, relocating Japanese Americans during WWII and continuing today in all sorts of ways, including your points on voting (e.g., inequalities in home ownership, wealth, health, etc.). It seems what “the good doctor” would order would be an honest truth and reconciliation process that openly and honestly deals with all of these past and current ills – and not from a entitled whites only perspective (see Driving Miss Daisy and Green Book arguments). We also need to carefully look at tendency for the liberally minded to think they are not part of the problem (see Coleman Hughes and similar arguments).

    Additionally, I think this discussion needs to include a couple of premises (in no particular order):

    1) We are all racist. 2) Racism is not an either-or dichotomy. It exists on a continuum one which we all fall somewhere. 3) We all need to develop tougher skin to honestly contemplate and accept our responsibility and roles moving forward – yes, and on “both sides.” 4) We need to agree to look at the data, not just our deeply held beliefs. 4) True reconciliation is more than a one off. It’s a never ending process.

    I’ll probably never get to it, nor could I ever put it in a framework as professional as yours. I just thought I’d share my loose thoughts. Yours are welcome.

    Any trips planned? We are headed to Portland next week and Salt Lake City in April/May. I am also headed to Northern AZ in April to visit an old colleague and see part of the country I’ve never seen……and hopefully to meet Joe Arpayo 😦

    Hope all is well. Hi to Alice, Dave and Amy.

    Richard

    >

Comments and discussion are encouraged

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: