In recent decades, support for the Voting Rights Act became nearly universal -- that is, until very recently. As much of the right has become increasingly radicalized, the VRA has become a popular target, and Attorney General Eric Holder recently noted that there have been more conservative legal challenges to the Section 5 of the VRA over the past two years than during the previous four decades.
The timing of these challenges is not coincidental -- GOP policymakers nationwide launched an ambitious "war on voting," deliberately creating longer voting lines, closing early-voting windows, addressing imaginary voter fraud through punitive voter-ID laws, restricting voter-registration drives, and overseeing an anti-voting campaign unlike anything seen in the United States since the days of Jim Crow. In many parts of the country, the Voting Rights Act has stood in the way of the larger conservative agenda.
This in turn set the stage for a historic Supreme Court showdown, which after this morning's oral arguments, appears to heavily favor Republicans.
A central provision of the Voting Rights Act of 1965 may be in peril, judging from tough questioning on Wednesday from the Supreme Court's more conservative members.
Justice Antonin Scalia called the provision, which requires nine states, mostly in the South, to get federal permission before changing voting procedures, a "perpetuation of racial entitlement." Chief Justice John G. Roberts Jr. asked a skeptical question about whether people in the South are more racist than those in the North. Justice Anthony M. Kennedy asked how much longer Alabama must live "under the trusteeship of the United States government."
The court's more liberal members, citing data and history, said Congress remained entitled to make the judgment that the provision was still needed in the covered jurisdictions.
Last summer, during some of Scalia's partisan antics, a constitutional law professor at UCLA said the conservative jurist "has finally jumped the shark." If that was true in June, I think it's fair to say "perpetuation of racial entitlement" is proof that Scalia has already taken the skis and the leather jacket off, but just doesn't care about credibility anymore.
For voting-rights proponents, there's a lot to find discouraging. The five-member conservative majority, by all accounts, was deeply skeptical of the VRA this morning, and while Chief Justice John Roberts was willing to break ranks on health care, Roberts has also been trying to tear down the Voting Rights Act for much of his career. Voting-rights supporters can hope Justice Kennedy might be the swing vote, but it appears to be a long shot.
Roberts and Justice Anthony Kennedy, who led the questioning challenging the Voting Right Act, both labeled the formula used for Section 5 "reverse engineering."
Kennedy said the formula "obscures the real purpose." He declared that "if Congress is going to single out states, it should do so by name." Although he said there's no question Section 5 was "utterly necessary" in 1965, its validity now is "not clear" to him.
"The Marshall Plan was very good too," Kennedy said. "But times change."
It would appear the consensus among conservatives is that systemic discrimination and institutional racism throughout the South was a problem before, but that unpleasantness is behind us, which necessarily means the Voting Rights Act has outlived its usefulness.
As Rep. John Lewis' (D-Ga.) reminded us the other day, those assumptions are wrong.
In 2006, Congress debated this very question over 10 months. We held 21 hearings, heard from more than 90 witnesses and reviewed more than 15,000 pages of evidence. We analyzed voting patterns in and outside the 16 covered jurisdictions. We considered four amendments on the floor of the House; the Senate Judiciary Committee considered several others.
After all of that, Congress came to a near-unanimous conclusion: While some change has occurred, the places with a legacy of long-standing, entrenched and state-sponsored voting discrimination still have the most persistent, flagrant, contemporary records of discrimination in this country. While the 16 jurisdictions affected by Section 5 represent only 25 percent of the nation's population, they still represent more than 80 percent of the lawsuits proving cases of voting discrimination.
For VRA advocates, the problem remains a national scourge in need of a remedy that's already in place. For VRA proponents, there is no problem, so the remedy is superfluous.
We can expect a final ruling from the Supreme Court over the summer. It's probably best to start lowering expectations now.
Leave a Comment:
Kennedy is a low grade human being IMHO. I have had enough of him being called "swing".
Why wouldn't all voting rights be equal for all states and for all citizens of the United States? What benefit do we get from not holding all individuals to the same rules?
"For VRA proponents, there is no problem, so the remedy is superfluous."
I assume you mean "VRA opponents".
The majority of this court will do anything to appease their political base. All the idiots have to do is to look at the shenanigans that went on last year to see this clause is still needed.
It's hardly surprising that right wing "justices" are "wary" of the Voting rights Act. Gawd forbid that the wrong people might get to vote! :-/
Perhaps the evidence considered in Congress should have been introduced in toto to the Supreme Court Justices. Not just delivered as a pile of materials that won't be read.
Wouldn't it be something to see it all RECITED as a whole, in the SCOTUS courtroom?!
Would also be nice to see some of the current practices in Ohio and Florida introduced as proof that the problem has not been dealt with at all, but is actually seeing an overt resurgence as a kind of backlash against an African American president.
We are not done with racism in this country. Not by a long shot.
What they needed to show was the you-tube of Turzai in Pennsylvania telling the GOTP that "voter id laws have been implemented to help Gov. Romney win the state, are done" - then tell me again why these conservatards don't think that these laws are necessary! I bet if they had to "wait for hours" to vote, they'd think "something needed to be done".
You'd think! What is obvious is not always the case when this majority sticks together. I am surprised they took up this issue so close to the 2006 review by Congress.
Zora I did wait in line and a lot of otheres here did too. Think the issue here is why are there discriminating standards between states in their rights to change voting laws. I agree with them there shouldn't be so why not look at the situation from both sides. Maybe there should be one standard for changing voting rights and laws across all states. Maybe I misunderstand the issue but do agree that everyone should be equal to include states
Progessive Leaning - (do you mean ProgRessive?) Anyway, these particular States have a long history of voter disenfranchisement AND voter discrimination. To date, they are the states with the greatest number of lawsuits against them for impropriety in regards to voting. By making these States get prior approval when changing their voting regulations, it not only protects the voters, but it saves the Government millions of dollars they would otherwise spend investigations and lawsuits.
it should apply to all states. all 50. forever!
Funny how the only "litmus test" for SCOTUS nominees is about abortion rights. How about a litmus test for racists and homophobes?!?
Justice Tony Scalia's query
Shows Voting Rights, he's planning to bury...
This bigot would exhort
The US Supreme Court
To take us back to the 19th Century...
God Bless you, Rep. John Lewis! you remind us what it means to be a REAL American. By doing the hard work you have dedicated your life to, you have made this a better country for all of us.
Thank you.
@MuggleBorn yup. and how about a litmus test for belief in civil rights, and fair and just laws, and separation of church and state, and equal rights in a democratic country, and how about a plain ole 'I'm-a-racist-old-white-guy-who-should-never-be-passing-judgment-on-behalf-of-Americans' litmus test? - do we have one of those? nope. Scalia & his conservative cronies on the SCOTUS do not have my trust, nor my respect, not anymore. not after today. I PRAY they were making some courtroom 'show' - that they will not make such an appalling decision as to actually strike down the most important section of the most important civil rights legislation of the last 50 years. If they do I will just cry - along with millions of other Americans.
I would not be so certain that the SCOTUS is going to do anything significant with the VRA because it has the potential to ignite large scale protests as well as anger Congress. Roberts does not want to face an angry Dem Congress in two years since he must report to Congress on the State of the Court every year. Even worse is that he has to ask Congress for money to fund the SCOTUS. You can expect a very narrow limited ruling that is not very significant with Roberts joining the liberal wing on major issues.
Excuse me Mike, but were we reading the same post? Roberts has been chomping at the bit for years to get at Section 5 of the VRA before he was on the high court. And you think he's afraid of facing a Dem Congress because they will short his SCOTUS budget? Do you remember the crap he took from the Right for upholding Obamacare?
Yes, I do think he is afraid of facing a hostile Congress and public. He might like the idea of tossing the whole VRA, but Republicans are in a precarious position with respect to elections. Roberts cannot assume Republicans are going to control Congress to bail him out. Nor does Roberts want to go down in history as being responsible for turning back laws on civil rights. A ruling overturning sections of the law is likely to trigger more minority voters turn out in 2014 because Dems can use the ruling as a campaign issue. Hence, a narrow ruling rather than a holding that provisions of the Act are unconstitutional.
You sound like a jurist or lawyer.
Regardless of the fallout, I think you're wrong and the Robert's court will wholesale overturn Section 5. And what does ...'Roberts cannot assume Republicans are going to control Congress to bail him out', mean? And, what would a narrow ruling look like to you?
I hope you're right Mike. But I feel quite upset about this stuff about "that was then" and "we overcame the voting problems" and of course the Scalia mantra "preferential racial entitlement".
Of course we want equality at all times, but they pretend to say we don't have racially biased voting issues. There is a desire to skip over reality in favor of having the desired equality that only exists in the minds of those that cannot see past a principle the we should have: racial equality without any road blocks anywhere.
The best I heard was Toure'. He said we cannot put it to be done in the courts (Prop 8 is going on 5 years), but we have a need to prevent the racially tainted Gerrymandering.
I stand on the side of equality and I argue there is still a need for VRA as it is currently.
How do they Gerrymander and decide where to place the intimidating bill boards?
Why have I, a caucasian never waited to vote and the larger populations of minorities had to wait for hours, in many cases? I do not live in what I would call a racially diverse place.
Why have there been efforts to cut early voting and the cases of specifically Sunday after church voting?
We have every state (and my county also) that verifies voter registration. So, there is no rampant voter fraud.
@ sandy
Roberts and Kennedy are not ideologues like the other conservatives; they are more pragmatic and very conscious of the repercussions of decisions.
Is it possible they might strike down the "specified states" and make it clearly the same in all states?
There may be something more accurate about that, rather than limit to the south and few other states.
Am I too optimistic/naive to hope for that?
Striking down the specified states would be an expansion of the law and extend it to all 50 states so I don't think that is something the court wants to do.
Roberts and Kennedy are not ideologues like the other conservatives; they are more pragmatic and very conscious of the repercussions of decisions.
People who believe a statement like this probably still believe in the tooth fairy. These two are just as bad as the other three traitors.
That's what I thought. Thanks.
General Q:
Am I the only one who cannot see the photo/video at the top of this article? I hate to ask, but I am trying to download other image/video viewers but still it's blank. I have Adobe Flash, from what I can tell this is supposed to be Flash viewable?
Update your flash player to the new version.
Yeah, it's the Safari browser. It works fine when I use Firefox. I have the latest Flash, but thanks for the tip!
I hope you're right, Cubs fan, I really do. You didn't answer bmcchgo's Q above - I'm curious too: what is your idea of "a narrow ruling"?? I don't understand what you mean by that. Rachel was actually IN the courtroom and she sounds very pessimistic about their upcoming decision. Course she's not a lawyer or judge and may not be as intuitive about courtroom shenanigans as she is about other things, tho she did seem to know Scalia was actually going for the shock effect of his words, expected and delighted in the "gasps" in the courtroom - relishing in them. I think he is an evil man. Profoundly self-absorbed, self-aggrandizing - he's just pathetic and old and sick. He represents a faction of this country that is slowly but surely dying out...eventually there will be almost no more Scalia's left in this country. He's a creepy, vanishing breed - thank God. Anyway I can't believe we have to wait so long for their decision. I can't stand this waiting business.
It never fails to amaze me how a law that has been on the books for 50 years can all of a sudden be considered "unconstituional". Did the constitution CHANGE while I wasn't looking? How can a law be perfectly constitutional and then NOT???? Personally I think Antonin Scalia should be removed from the court. He is no longer able to see past his own idiological opinions and is as far from "fair and unbiased" as it's possible to be.
Scalia is a racist bigot. He'll do anything to appease his racist, bigoted owners.
Associate Justice of the Supreme Court is a position that can be impeached as was the case in 1804, but he was acquitted. In fact ALL Federal officials who have been impeached and subsequently removed from office have been judicial. Both times the President has been impeached they have been acquitted. The only other non-judicial officer that was impeached was also acquitted in 1876 (Secretary of War).
If they forced Congress to change a law by now declaring it superfluous and NOW unconstitutional wouldn't that be considered legislating from the bench?
"If they forced Congress to change a law by now declaring it superfluous and NOW unconstitutional wouldn't that be considered legislating from the bench?"
BINGO! Nailed it on the head NiteOwlett!
Citizens United unleashed corporate America on our election process. That was a 63 year old law. It did not work this time because voter suppression efforts failed big time, but the Koch Brothers, Rove and their cohorts are gearing up to buy or cheat to win. I am afraid our democracy is doomed unless the American people take to the streets and reclaim the rights that Republicans have managed to strip away the last 12 years. If they can't do it nationally, they will do it at the state level just like they are doing with abortion rights as well as voting rights. Once they gain power they spread like maggots and it is almost impossible to get rid of them. They use lies to spread hatred and bigotry among the ignorant and drastically cut funding for education to assure that ignorance will continue to prevail. We are in deep do-do folks.
Actually, the whole point of having three parts of our govt. is checks and balances. There have been many a legislature, state and federal, that have made laws, that have been on the books for decades, that have been later deemed Unconstituional. Some that come to mind in this case are laws around tests for voting. I also think that DOMA may also become an example later this year. Any legislative body can pass any law they want. The law can then be challenged in court as to its constitutionality. There cannot be a challenge unless the law is enacted.
The claim by Roberts and Kennedy that the requirements for Section 5 (which are actually listed in Section 4) are "reverse engineering" is clearly false. The requirements were amended in 1970 and 1975 when VRA was re-authorized, with the test limits referring to 1968 and 1972 elections, respectively. As a result, parts of northern states (including Michigan) were included.
A state or a county can get on "the list" by having less than 50% of the eligible census registered to vote, or having less than 50% participation in an election, or by not providing other language ballots if more than 5% of the population is a particular non-English-speaking minority.
It is not "southern" states or ex-Confederate or "traditionally segregationist" states that are automatically on the list. It is mostly a matter of ensuring high registration and high participation that gets you off the list. Alabama should work on THAT.
Considering all the issues we've had all around the country, (not just the South), in the past few years, I'd actually be in favor of extending the VRA to the entire country, not just a limited segment. Plenty of disenfranchising schemes have happened in places like PA and OH, for example, so maybe EVERYONE should be put under the VRA. Racism knows no bounds, so neither should efforts to combat it.
This has always been my line of thinking. A lot of the voter ID laws were established in states that are not on the list. I don't think PA and Ohio are on the list and they went to great lengths last year you make it really hard for minorities and the elderly to vote. Indiana isn't on the list and just introduced a bill that could significantly reduce the number of college students that will vote (people who get more education are more liberal, especially while they are young). Just put all states on the list and we can be done with a lot of this mess.
Indeed, I think the time has come to extend those "limitations" to ALL 50 states...
Sequestered in privilege and wealth, how could the conservative justices even begin to fathom the historical dimensions of the case before it?
Prejudice sublime manifests in questioning the obvious as if it is the exception! -Kevo
Oh, come on. The 15th Amendment might not be the best known part of the Constitution, but it does exist.
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
And the reason that the VRA exists is because far too many African-Americans were persecuted via Jim Crow laws/lynching/burning down their homes et.al when they tried to vote.
So much for the 15th Amendment.
I really don't see this Court having a problem with ruling that the 15th Amendment is unConstitutional.
Scalia is a disgusting human being.
After the signing of the Declaration of Independence it took women 144 years to gain the unfettered right to vote in 1920. It took Blacks 189, with the passage of the Voting Rights Act of 1965, and no one would argue that the Right has been unfettered. It has been under assault since it's passage. Strike it down and the War on Women will quickly begin to make inroads against a woman's right to vote.
One of the oldest tricks of judicial theater is to beat up on the side that will win so that the loser has the impression of having had a full and fair hearing.
At least, this is my hope.
oh, so the justices can say "times change" when they want to preserve some flagrant right wing flouting of equality laws....but I bet they can't say "times change" when they will rule on equal rights for gay people. Interesting they way they can manage to advance their own agenda, but not the agenda of the PEOPLE.
I have to wonder if anyone would have brought any of this up were it not for the fact that BLACK man was elected president. Elected mightly!!
I wonder if there would have been such resistance to a health care act if the president had not been a BLACK man , or if the republican party would have taken such exstream positions on a variety of issues if the president were white.
GOP - the party of racist bigots.
they should add several statesd to the list....florida, ohio, pennsylvania and all the states that practised or tried to introduce voter supprression laws in the past election
Justice Thomas grew up in Savannah, Georgia.
He would have been 21 (the voting age at the time) in 1969, however, he may have been attending college in Massachussetts. I'm not sure where he voted (if he did)
He lived in Missouri for a while after that.
I wonder if he had benefitted from the Voting Rights Act during this time, if he ever voted in Georgia after the Voting Rights Act was intially passed in 1965.
Whether or not this is significant remains to be seen, but given we've only heard about the comments from the white male Justices, I'm curious to know where Justice Thomas is.
Uncle Tom stands where ever those white, male Justices tell him to stand.
The fact is Uncle Tom doesn't give a dayum about anyone other than himself.
That is a great point Knobson , if there ever was a real time for Thomas to actually speak up , this would be one of them , but he would haveto ask Scalia for his own tongue back it seems
I would venture to guess Thomas does not say a word , because he would out himself as an even bigger bigot than Scalia
Thomas rarely speaks in the court. Besides, unless the Koch's tell him to support this act (which they will not) he will vote against it. The Citizens United decision marked his services as being for sale (Scalia fell into this as well).
For that matter, I was surprised that neither one of them were presented with impeachment charges. Didn't they both refuse to recuse themselves despite receiving either money (Thomas, via his wife) or expensive vacations (Scalia) from the Koch's, the people who were financing the Citizens United court case?
It is odd and very sad, isn't it?, that Thomas almost never ever has ANYthing to say about ANYthing - he doesn't ask Q's, he doesn't write opinions, he doesn't do anything but nod his head like a bobblehead doll & vote in unison with the other rightwing jerks to whom he is forever tethered. Here is a decision you would THINK, surely, he MUST have strong feelings about, yes? But I believe what Patango said above - he is actually a bigot - towards his OWN RACE!! He is such a pompous, egotistical fop who doesn't believe in affirmative action, who holds disdain for anyone, especially African Americans, who might need a helping hand because they aren't the amazing!, righteous!, brilliant!, shining star!, big-man-on-campus! that is THE! His-Royal-Highness Justice Clarence Thomas, the great and powerful would-be-African-American OZ on the highest court in the land. What a sorry ass he is - long after he & I are both dead and gone, Thomas will be remembered for......absolutely NOTHING!! Because that's what he's done and will go on doing: absolutely nothing. What a legacy. It's truly embarrassing - he will never be a role model for young African Americans. How sad that is. What a missed opportunity. It makes me angry even though I'm not African American - it pisses me off.
Are people more racist in the South? Huh? Has he ever been in the South? Of course there are racist people in every state. But the institutionalized racism can be proven by graduation rates for minority groups. It doesn't take an educational research specialist to figure out that there just MIGHT be a happier climate for racist people in the southern states. I've lived in Georgia most of my life, but I've also lived in Massachusetts, New Jersey, Pennsylvania, North Carolina, Tennessee and Arizona. The VRA - all of it - is still needed!
In the South, they have the pretense of "honoring their ancestors" when they fly the Confederate flag. When you see it flying up here in Michigan (or the more ubiquitous front license plate on a truck) you know it is just a declaration of racism.
The Voting Rights Act DOES apply to the entire nation. This case is only about Section V, which is the pre-authorization requirement. If Section V is declared unconstitutional, then those states will no longer have to have their new voting laws pre-approved, but they will still be subject to lawsuits, like the rest of the country.
Don't forget that the VRA worked--properly--in Ohio, Pennsylvania, etc. last year. But it does take an alert citizenry to make sure the suits are filed.
Mike , they have a way around that already , by the time the courts here from the disenfranchised , the election is over , and then what ? they slap a few low level stooges on the wrist , who will end up taking all the blame for everything , big freaking deal huh? jim crow 101
What is the penalty for violating voters rights any way? And do not take me wrong , I am on your team , as an american I am physically sick of observing constitutional rights being violated , while absolutely nothing is ever done about it
Really stupid considering those white folks are going to be the minority in a couple of decades.
RE: "'The Marshall Plan was very good too,' Kennedy said. 'But times change.'"
Isn't the role of the SCOTUS to determine whether legislation is constitutional? As opposed to, say, determining whether justices like or agree with the need for a particular piece of legislation?
Concerns about perpetuation of racial entitlement or whether people in the South are more racist than those in the North or how much longer Alabama must live under the trusteeship of the United States government seem to have little or nothing to do with the constitutionality of the Voting Rights Act. Even if you give such concerns the benefit of the doubt, disagreeing with whether the VRA is needed or whether it is effective is not the same as saying that the law is unconstitutional. Unfortunately, five Supreme Court justices don't seem to be able to make such distinctions.
The Bush family really screwed us with their radical appointees. And correct me if I'm wrong, but as far as I can tell, Kennedy is a swing voter no more. Since O'Connor retired, he now seems to be as right-wing as his radical bretheren.
And we still have the u s military post ww2 , so is it still relevant ? Foxnews commentary on the ussc is disturbing to witness
Does anyone remember FANNIE LOU HAMER? She spoke at the DNc in 1964 . She told how she was beat in Mississippi for registering. see her speech at the convention on utube. Guess what is on her grave? I am sick and tired of being sick and tired. What makes SCOTUS say VRA is and entitlement? They are old men and some women out of touch. She probably helped Uncle Thomas get his right to vote.
Did they not witness what went on in the 2012 election. The Law needs to be expanded to ensure that no citizen of the United States is denied their right to vote.
Here's an idea...have all Supreme Court appointees and politicians submit to a thorough review of all their financial records. Before anyone starts huffing and puffing, explain how that would be any different than a mandatory credit check most employers require these days for employment.
Wait, didn't Mississippi just ratify the 13th amendment? No, they're right, this "oversight" is not symbolic of anything whatsoever.
Gee, I don't know let's see - Is Tennessee in the South: http://www.theshadowleague.com/articles/kkk-granted-demonstration-permit-in-memphis
Is Florida in the South? When I lived there, the KKK marched in the Thanksgiving Day Parade in Apopka. Also, I went to a Halloween Party dressed as a witch, but our group left when someone showed up in all the glory of his KKK outfit!
Never saw that in PA, NJ, NY - but maybe I just missed it all these years!
My Q for the SCOTUS is: Are you really that stupid?