Remember how everyone told us we’d still have federal protections on voting rights even after Justice Roberts gutted the law? Not so fast:
Now, voting rights supporters fear a determined push by the right could let the Roberts Court go after the landmark civil right’s law’s other key pillar, Section 2.
“Section 2 is a ripe target,” Christopher Elmendorf, a law professor at the University of California, Davis, who has written in depth on the provision, told MSNBC.
If the court were to strike down or substantially weaken Section 2, the Voting Rights Act would technically still exist, and would retain a few historically important functions—its ban on poll taxes and literacy tests, for instance. But, on top of the demise of Section 5, the most successful civil rights law in the nation’s history would be all but a dead letter.
Unlike Section 5, Section 2—which lets victims of racial discrimination file suit—is an after-the-fact remedy, making it a less effective tool for stopping race bias in voting. Still, it’s the strongest protection that the Voting Rights Act has left, and the weeks since the Supreme Court’s ruling in Shelby County v. Holder have made clear that Section 2 now figures to play a crucial role in legal efforts to defend voting rights, including in cases against voter ID, cutbacks to early voting, and other Republican-backed voting restrictions.
The argument against Section 2 is that by banning actions with discriminatory results, not just intent, it goes beyond what the Constitution empowers Congress to do.
“I’d guess that arguments would be made that the statute should be narrowly construed, because to read it more broadly raises serious constitutional questions,” one conservative Washington election lawyer, who asked not to be identified because he isn’t authorized by his firm to speak to the press, told MSNBC, echoing the language of the young John Roberts. “That’s how I see this as playing out.”
Indeed, the Shelby County ruling, in addition to ending Section 5 in its current form, may also have continued that process, he added. That’s because, with reference to Section 5, the justices ruled that the South’s Jim Crow history wasn’t a sufficient basis to establish ongoing intentional discrimination. That means it likely wouldn’t be sufficient with respect to Section 2 either.
It’s also noticeable that in Shelby County, the justices’ finding that Section 5 is no longer needed didn’t rely on the ongoing existence of Section 2 as a bulwark against race discrimination in voting—an argument that was the centerpiece of Carvin’s testimony Wednesday. The ruling said nothing of substance about Section 2, which, Roberts wrote, “is not at issue in this case.”
“If everybody on the court had no problem with Section 2, you would expect them to rely on it,” Baude, the former Roberts clerk, told MSNBC. “So the fact that they don’t suggests there’s at least some question about it.”
Then there’s this, from July 17:
Today the Senate Judiciary Committee held their first hearing on the post-Supreme Court gutted Voting Rights Act. Only two Republicans attended the hearing, and both of them left early.
Ari Berman of The Nation reported, “Beyond Sensenbrenner, there wasn’t much enthusiasm among Republicans on the Senate Judiciary Committee to revise the VRA. Only two Republicans attended the hearing, Senators Grassley and Cruz, neither of whom stayed the full time.
Cruz praised the Supreme Court’s decision, while Grassley and witness Michael Carvin, a prominent Republican lawyer at Jones Day, suggested that Section 2 would be an adequate replacement for Sections 4 & 5. (Section 4 determines how states are covered under Section 5, which requires that states with the worst history of voting discrimination clear their voting changes with the federal government.)”
Ted Cruz was only there to score points with Republicans ahead of his dreamed of 2016 presidential run, and Grassley showed up just to reassure people that there was no need to restore the gutted portions of the law. If Republicans can’t be bothered to even show up for a hearing, it is very unlikely that they intend on doing anything to repair the Voting Rights Act.
It would be completely in keeping with past behavior if conservatives were telling people Section 2 is a fine replacement for Section 5 while preparing to also throw out Section 2. These are the same people who voted overwhelmingly to renew the VRA while getting ready to attack the VRA in court. This scam worked so well last time, why not run it again? The question isn’t whether conservatives plan on doing anything to repair the damage they’ve done to the Voting Rights Act. They don’t. The question now becomes do conservatives plan on doing away with the Voting Rights Act altogether.
The Other Chuck
FTFY.
Ben Cisco
Anyone who thinks differently isn’t paying attention, clearly.
Thanks Kay for staying on top of this.
karen
The even bigger question is, when do they start to go after and dismantle the Civil Rights Act? You know that’s after the VRA is gone. Why impeach a blah President when you can just take away his right to hold the office in the first place?
Tom Levenson
The only possible solution to this is to take back the House. When and if that’s done, then we’ve got a chance. Oh yeah: and hold the senate.
We’re in a replay of the post Hayes-Tilden “compromise.” Reconstruction/the Civil Rights era is over, and the attempt to reimpose hegemonic rule by a momentarily displaced elite is on, full swing. The question now is whether it’ll take another hundred years of suffering, injustice and struggle to get past our modern Nathan Bedford Forrests–or whether we can move with a bit more dispatch.
The Snarxist Formerly Known as Kryptik
I just want to know something:
Just how the hell is a previous section supposed to be a replacement for a later section that got stricken down after the fact? Just tell me this, hrm, guys? Maybe, just maybe, Section 2 was supposed to work in concert with Section 5, not fucking replace it because your fellows on the Supreme Court decided “RACISMES IS TOTALLY OVER GUYS!”
Ben Cisco
This, exactly.
I have thought for some time now that it will eventually come to blows simply because 1) that appears to be what they want, and 2) that’s the ONLY thing that will stop them. I want very badly to be wrong on this, but I no longer think that I am.
burnspbesq
The Roth piece is unadulterated Chicken Little bullshit.
It completely ignores the availability of preliminary injunctive relief in Section 2 cases.
It completely ignores the pending motions in two Texas cases, in the District of Columbia and in San Antonio, to apply the Section 3 bail-in remedy to put Texas back under pre-clearance.
It misstates the case law on plaintiffs’ burden of proof in Section 2 cases.
I’m not here to pretend that Shelby County didn’t create problems for VRA enforcement. It did. But can we at least stay within shouting distance of reality?
Kay
@The Snarxist Formerly Known as Kryptik:
It isn’t. He’s just a conservative lawyer. For some other lawyers, IMO, saying “we still have 2!” protects the institution; the Court, the Majesty of the Law, etc. There seems to me to be a lot of resistance to honestly looking at how radical Roberts is, or admitting what conservatives are doing. It’s “la la la, I can’t HEAR you!”
IMO, they’re protecting the institution to the detriment of the people the institution is supposed to serve, but that’s me.
Ben Cisco
@burnspbesq: WE can; however, THEY don’t appear to be interested in doing so. Further, the Supremes’ actions are somewhat less than encouraging regarding THEIR intent/ability to do so either. So, since I’m the one with a target on my back, I reserve the right to be less than sanguine about it.
Ivan Ivanovich Renko
@Ben Cisco: I’ve long believed that Lincoln is still right about these Confederate bastards:
I’m afraid we will come to blows again.
Ivan Ivanovich Renko
@Ben Cisco:
That makes two of us.
Kay
@burnspbesq:
Burns, why do I think you and I are going to be arguing about the wording on the poll test questions? “They’re not THAT hard, Kay. Many people know how many bubbles are in a bar of soap”
At what point do we admit what’s going on here? How long am I supposed to give them the benefit of the doubt?
Tone in DC
They’ll do the same thing with this that they have been doing with abortion rights. The states will chip away at it until the federal law is almost meaningless.
These people are worse than foul.
Thanks for posting this, Kay. I would not have heard this in most any other venue.
Ted & Hellen
Actually, the question now becomes what do national, elected Democrats in office plan on doing to stop them?
Do you never weary Dem fecklessness?
Comrade Dread
Yes. When they have a portion of their base that thinks that black people are all getting government checks and having babies to get more government checks and they see that as the cause of their own root economic distress, it’s not surprising to see their party push efforts to limit the franchise.
I’m pretty sure the dream of the oligarchs would be to get us back to where only white male property owners could vote. And they’d have quite a few people willing to back them in the hopes that they’d be one of the lucky ones able to vote instead of one of the millions that couldn’t.
Ben Cisco
@Ivan Ivanovich Renko: And yet, we have those that will deny the plain truth right until the shit drops.
Un-fucking-believable.
rikyrah
thanks for keeping on top of this Kay.
Sibling Nonspecific Firearm of Random Adjective Followed by a Noun That Describes a Mental State (fka AWS)
Better
Goblue72
@burnspbesq: you’re so cute – thinking the right wing judiciary isn’t ends driven. Stare decisis, how quaint is their motto.
SFAW
I think it would be super neat-o if they instituted poll tests which required the taker to have some semblance of a grip on reality and rational thought. For example: “Did Saddam Hussein and Osama bin Laden coordinate the attacks which took place on 9/11/2001?” and “Does evolution exist?” Do that, and the Dems control both Chambers and the Presidency for generations.
Of course, that assumes that rational persons also determine the correct answer(s). Not a good assumption, unfortunately.
Kay
@Comrade Dread:
It really goes back to “right” versus “privilege”. You remember when they were telling us voting was just like buying beer or boarding an airplane? They meant it. Which isn’t really surprising, since that’s what they said. They’ve now changed it to “sacred obligation” (Eric Cantor) but I have no idea what that means.
Goblue72
@Kay: you shouldn’t be giving it to them now. The Dixiecrats never went away, they just changed the logo on their hoods.
SFAW
@Goblue72:
You do realize that “stare decisis” is wingnut-speak for “”Calvinball, everybody!” right? Same with “originalism” and “original intent.”
Keith G
About the only thing that I imagine that I can know for sure is that its definitely going to be a lot harder for some folks to vote in 2014 & 2016 than it was earlier. There is nothing that I can do to change the overall statutory conditions governing voting. What I can do, is make a personal goal to do what I can to help people in my community understand and meet the ID requirements and get the voter registration process done well before the next election.
SFAW
@Goblue72:
But-but-but Robert Byrd was in the KKK! And look at that thing going on over there!
Which is another way of saying: you’re right, but they’ll keep misdirecting the attention of anyone that might note or question that.
Kay
@Goblue72:
It’s not just this. It’s the ACA, too. There’s this diminishing of how radical they are, this constant effort to deny it.
I have a theory! Lawyers are “rule people”, generally. Many feel unmoored by how radical the Court is, so we have to rally ’round and prop up the institution, and minimize. I’m just tired of it. Does anyone know what they’d do with a Section 2 case, really? I don’t think they do.
gene108
@Kay:
Yes I do.
In a “shocking” 5-4 decision the Court’s conservative majority will vote to further strip away the effectiveness of the Voting Rights Act.
The conservatives on this court are 100% driven to enact the Republican political agenda and the agenda billionaires, who are at the heart of the Republican Party.
The only reason the PPACA survived is because John Roberts probably got some death threats from the billionaires, with stakes in the health care sector, who’d lose big time, if the PPACA was going to be scrapped after they invested in what they expected would be a boom in healthcare spending.
catclub
@gene108: “they invested in what they expected would be a boom in healthcare spending”
Hasn’t healthcare construction actually fallen substantially, the past few years?
Chris
@Ben Cisco:
If the nineteenth and twentieth centuries are any indication, if it comes to blows, the authorities will ignore the right wing violence at best and aid and abet it at worst, while cracking down like there’s no tomorrow not only on left wing violence but any kind of activism that looks even remotely left wing. Coming to blows isn’t going to stop them.
ETA: heck, didn’t police departments the nation over cooperate to bust the Occupy movements?
Ben Cisco
@Chris: If we go down, we go down then.
The only way they can ride you is if your back’s already bent. TO HELL WITH THAT.
CONGRATULATIONS!
@Chris: Two crucial differences between then and now: the cops have been completely radicalized, steeped in an “us vs. them” mentality after 40 years of Wars on Drugs, lifestyles, and loud shitty music. The ties that used to bind a police officer to the community they live in have been completely severed.
Also, they’re now packing military-grade weapons.
The Western world is, once again, just waiting for a leader who thinks that exterminating the left is a good idea. There is not one single thing that will or can stop that movement once it starts.
Senyordave
Voting accessibility should be the #1 goal of Democratic grass roots efforts. The GOP will do anything they can to supress voting, it is almost a religion with them.
Chris
@CONGRATULATIONS!:
Is it actually a recent development? I doubt if the cops’ ties to the public were ever all they were cracked up to be (and while they might not have had military grade weapons before, when the riots got too big, you just called in the Army).
And this is where I’d link to Robert Paxton, but nah, you all know it already.
Higgs Boson's Mate
@Ted & Hellen:
I have failed my party. In doing so, I have failed what I believe are the best things my country could aspire to. I have suited up and shown up in every election from 1968 on to support the Democratic party by knocking on doors, phone banking and all of he other tedious tasks that were asked of me. I failed in not asking my party to be anything more than not being Republicans. I failed in not trying to trade my modest contributions for a demand that the my party actually fight to regain control of state legislatures in states other than my own.
This is war to extermination. nothing more, nothing less. The failures of of our party’s leadership can no longer be excused. Those of us who are Democrats have the right to expect something much better. It hasn’t been that long since the demise of the Republican party was trumpeted. I would assert that the party that died was our own. The same people who were talking about the demise of the other party now endorse Congressional deals wherein we only lose a little. A little at a time and pretty soon we won’t have anything to lose.
I am old, I am tired. And I ‘m fed up to the teeth with the a two-party system that proffers either a diet of shit or shit hors d’œuvres.
Tom Levenson
@Senyordave: +1
mclaren
I await with bated breath the Supreme Court decision legalizing slavery. 2 years? Maybe three?
A decade or so from now, you’ll fall behind on your credit card payments and find yourself auctioned off as chattel…
Villago Delenda Est
@Goblue72:
If this were 1942 Berlin, Burnsie would be quibbling about the absence of a written Führer order to set in motion the machinery of Die Endlösung
Higgs Boson's Mate
@mclaren:
Slavery? Never. De facto indentured servitude will go through as smoothly as shit through a duck’s ass.
Villago Delenda Est
@Chris:
This.
Just as they seemed terribly uninterested in prosecuting George Zimmerman, at first.
Yatsuno
@mclaren: And yet…you stay in this country. I find that puzzling.
Higgs Boson's Mate
@Yatsuno:
Love it or leave it is beneath you.
Shakezula
I think the more important question is what people can do to make sure massive numbers of people aren’t disenfranchised.
Edit: The NAACP has some ideas. http://www.thisismyvote.org/
SFAW
@Villago Delenda Est:
And thank FSM for that! Otherwise, he wouldn’t have been able to save that family in the SUV
from the darkies. Must credit Drudge!burnspbesq
@gene108:
And I’m the one who’s unmoored from reality?
burnspbesq
@Yatsuno:
I don’t. Talk is cheap.
Kay
@Senyordave:
I agree. It’s great politics and it’s the right thing to do. Democrats are much more open to it than they were even in 2006, when the voter ID push started. I used to get big yawns when I raised it.
Democrats have changed on voting rights. It’s not a “special issue” anymore. I had 70 year old mainstream Democrats asking me last cycle if “we” were going to be able to get people voted, and this county is 98% white and most people have a drivers license.
Courts aren’t the only recourse. They never were. On that, though, the truth is Holder is the best AG on aggressive protection/litigation on voting rights since I’ve been paying attention.
But it’s a great political issue, and it’s so easy to roll into GOTV that it’s perfect for organizing. Democrats should grab it.
gene108
@catclub:
Premiums seem to be leveling off a bit.
Know clue about construction, but I’d think expansion of resources would happen to meet the pent up demand Obamacare would unleash.
Ted & Hellen
@Higgs Boson’s Mate:
Nothing is below Yats.
Ted & Hellen
Wow.
Alleged Democrats now aping Nixon’s right wing’s “love it or leave it!” reprise.
Unsurprising.
Goblue72
@Kay: I call that type of lawyer a black letter law lawyer. Good lawyers recognize that we have THREE political branches of government in this country. It’s just the third political branch involves political actors who are appointed (although for many state level judiciaries, they too are elected). They may be political actors constrained by the next level above, but they still make law, and do so in part based on ideological biases and outcome driven ends. And at the SCOTUS level, they are quite unconstrained.
SFAW
@Goblue72:
Except by precedent, to which they strictly adhere, because they’re not judicial activists, of course.
Kay
@Goblue72:
Well, though, they should be able to rely on what’s gone before. That’s the way it’s supposed to work. Hence feeling unmoored or adrift because it becomes impossible to analyze anything, right?
We have to embrace the chaos of “conservatism” :)
jake the snake
Apparently they are going to Tea Bag Mitch McConnell.
.
http://thehill.com/blogs/ballot-box/senate-races/312495-tea-party-candidate-announcing-run-against-mcconnell-this-week#ixzz2ZmcIQucE
This might get interesting. Mitch has already been carpet-bombing the state with ads accusing Allison Lundergan Grimes of being a Democrat.
I have not seen this ad on TV yet.
http://www.youtube.com/watch?feature=player_detailpage&v=euVkDbQz144
A Humble Lurker
Hmm…
Yatsuno
@jake the snake: Please proceed, Republicans. We should encourage this behaviour in all the other tough win states.
SFAW
@A Humble Lurker:
Not sure why the “Hmm …” My comment was aimed at Goblue’s noting of the Rethug logo being emblazoned on the hoods of the Grand Kolossal Kleagles or whatever they’re called.
ETA: And, no, “Grand Kolossal Kleagles” is most definitely NOT a good name for a band.
A Humble Lurker
@SFAW:
I wasn’t impugning you. Just thought one comment was relevant in relation to another.