Thursday, July 18, 2013

Supreme Court rules section 5 of voting rights act unconstitutional based on liberty vs. justice lie

Image: Justice Roberts, the author of the majority opinion in Shelby County v. Holder (source)

I realize I'm pretty late to the game in commenting on the Supreme Court's Voting Rights Act, but because discussion about it has relied so heavily on a key justification used in social policy--the freedom (or liberty) vs justice lie--I think that "better late than never" is true here.

Whenever a policy is justified based on appeals to someone's liberty or freedom, an extreme degree of skepticism is warranted.  Except in cases of national security, which truly does whittle away at the freedoms of all (while hacking away at the freedom of Muslims who have done nothing wrong), or giving the right to marry to homosexuals (which does nothing to limit anyone else's freedom), or a few other examples, one group's gain of liberty is usually only possible with another group's loss of liberty.  The claim is always made that we must sacrifice social justice in the name of liberty, but that claim is rarely true; rather, liberty is redistributed, not created.

The Supreme court ruling in Shelby County v. Holder, in which section 4 of the Voting Rights Act (VRA) was ruled unconstitutional, perfectly illustrates this point.
Essentially, section 4 of the VRA required nine states and several counties outside those nine states to get "preclearance" from the federal government before enacting any changes in their voting laws.  The ACLU explains why this was necessary:
Section 5 was designed to check certain states' attempts to circumvent the protections of the 14th and 15th Amendments by replacing one unconstitutional voting practice with another. Leading up to the passage of the VRA, many states, largely former slave states, used an array of tactics, from white-only primaries, to literacy tests, to poll taxes, to violence and intimidation, to suppress minority voters. As one method was deemed unconstitutional, another method took its place.
And, how it was still in wide use:
Before the Supreme Court struck down Section 4, Section 5 was still actively combatting barriers which, though subtler than a white-only primary, were just as discriminatory. In 2001 in Kilmichael, Mississippi, for example, a significant number of African American candidates qualified for the board and mayoral races for the first time in its history. In response, the city promptly cancelled the general election entirely. Sadly, the list of similar discriminatory schemes is long, sordid, and shamefully current. Congress recognized hundreds of similar instances when it reauthorized the VRA in 2006.
It's worth noting that the 2006 VRA reauthorization passed 390-33 in the House of Representatives and unanimously in the Senate.

Nowhere in the majority opinion is the effectiveness of the VRA in question.  Justice Roberts, author of that opinion, wrote:
[Since 1965], largely because of the Voting Rights Act, voting tests were abolished, disparities in voter registration and turnout due to race were erased, and African-Americans attained political office in record numbers.
Justice Ginsburg amusingly quipped in her dissent:
[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.
Finally, the majority opinion fully acknowledged that voting discrimination still exists:
At the same time, voting discrimination still exists; no one doubts that.
Essentially, the ruling was based on the principle of states' rights.  Again from the majority opinion:
And despite the tradition of equal sovereignty, the Act applies to only nine States (and several additional counties). While one State waits months or years and expends funds to implement a validly enacted law, its neighbor can typically put the same law into effect immediately, through the normal legislative process.
Point taken--I agree fully with this statement.  Section 4 of the VRA is a clear violation of state rights.  However, Ginsburg writes in her dissent:
The stated purpose of the Civil War Amendments was to arm Congress with the power and authority to protect all persons within the Nation from violations of their rights by the States. In exercising that power, then, Congress may use “all means which are appropriate, which are plainly adapted” to the constitutional ends declared by these Amendments. McCulloch, 4 Wheat., at 421. So when Congress acts to enforce the right to vote free from racial discrimination, we ask not whether Congress has chosen the means most wise, but whether Congress has rationally selected means appropriate to a legitimate end. “It is not for us to review the congressional resolution of [the need for its chosen remedy].
Note what's going on here.  The majority is arguing that Section 4 violated states' rights.  In her dissent, Ginsburg argues that the Constitution, because of the Civil War Amendments, explicitly gives the federal government the right to violate states' rights if it does so with the intention of protecting the rights of individuals within those states.  Essentially, they are arguing about whose liberty is more important--that of states (majority opinion), or that of individuals within those states (dissenting opinion).  By increasing states' liberty, the Supreme Court didn't increase liberty--it redistributed it from minority voters to state governments.

This matters greatly.  Many on the right have argued that the case is simply about states' rights, and nothing else.  View this piece by the Heritage Foundation, which uses words like "an extraordinary intrusion into state sovereignty" and "turns states’ equal sovereignty on its head", while mentioning nothing about the rights of minority voters.  The closest they come is:
...the Supreme Court upheld the law in the 1960s based on the dire and exceptional conditions then present in the covered jurisdictions where official, systematic, and widespread discrimination in voting existed at that time, but which, fortunately, does not exist today.
Got it?  There may be times where a violation of individuals' rights are so egregious that states' rights can be violated.  But, fundamentally, states' rights are more important than individuals' rights.

This goes to show that arguments appealing to freedom or liberty should always be viewed with extreme suspicion.  Usually, there is another side to the story; one groups liberty usually--though not always--comes at the expense of another group's liberty.  It then becomes a question of whose liberty is more important, and that is clearly the case here.  When Heritage and others try to limit the argument to only one group's liberty, conveniently ignoring the other side, they obfuscate what is really going on.  That the VRA formula is out of date is a tenable argument, but by utterly ignoring the ongoing voter suppression that the VRA was actively preventing right up until it was struck down, the argument is deliberately distorted, ignoring those who lose liberty in order to increase the liberty of others.

The central irony of this decision
This ruling is centered around the rights of states to repress voters.  Remember, states could get out of Section 4 with just ten years of good behavior--an embarrassingly low standard, and one which so many states couldn't meet.  Thus, what the ruling says is that it is unfair for some states to have to wait ten years before repressing their voters, while others can do so immediately.  View the racially motivated war on voting taking place in non-section 4 states:
  • Ohio making early voting illegal only on Sundays because predominately African American churches organizing voting drives after Sunday morning services
  • A Republican state legislature in Pennsylvania admitting that a voter ID to disenfranchise 9% of Pennsylvanians was to take votes away from president Obama in the 2012 election
  • Wisconsin's restrictive voter ID law offered free photo ID's at local DMV's (roughly half of Wisconsin minorities lack a photo ID) even as Governor Scott Walker closes DMV's in Democrat-leaning counties and opens them in Republican-leaning ones
These initiatives have obviously sinister motivations.  Voter fraud is more likely to occur in absentee ballots, so the focus on voter ID and same day registration is clearly nefarious.  The majority decision, then, is that if states like Pennsylvania, Wisconsin, and Ohio are allowed to oppress their minorities without ten years of good behavior, why shouldn't Texas?

The majority opinion encouraged Congress to come up with an improved version Section 4, knowing that the Tea Party bloc in the House will not allow that to happen.  Striking down of Section 4 opened the floodgates of laws restricting minority voting.
Within hours, Texas officials said that they would begin enforcing a strict photo identification requirement for voters, which had been blocked by a federal court on the ground that it would disproportionately affect black and Hispanic voters. In Mississippi and Alabama, which had passed their own voter identification laws but had not received federal approval for them, state officials said that they were moving to begin enforcing the laws...After the ruling, some [North Carolina] Republican lawmakers said that they would move as soon as next week to pass a bill requiring voters to present photo identification at the polls. And some Republicans there are considering cutting back on the number of early voting days in the state, which were especially popular among Democrats and black voters during the 2012 presidential election.
Ginsburg's umbrella comment was only prophetic for a few hours; after that, it became true.

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