“Flag on the Play…” The Voting Rights Act – The Supreme Court Calls a Penalty – On Congress

By Shawn Carter

President Lyndon Johnson signing the Civil Rights Act of 1964

“Supreme Court voids key part of Voting Rights Act”

Ever since the high Court delivered its ruling yesterday in Shelby County v. Holder, I’ve been trying to figure out how to pen this missive.

There are myriad angles which one could cover, every single one of them a legitimate course.

But the more I read the Opinion, the more one singular point jumps out at me.

The Chief Justice warned America, and Congress, four years ago, that a majority of the Court held serious reservations about the constitutionality of the very “key” part of the Voting Rights Act that they struck down earlier this week.

Let’s start there.  Because this decision should not only have not come as a surprise to the advocates of the Voting Rights Act, but forces us to ask some very uncomfortable questions of those we depend on to defend our rights and liberties.

From  Northwest Austin Municipal Utility District One v. Holder, Attorney General, et.al. (2009)

The evil that §5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions. 

For example, the racial gap in voter registration and turnout is lower in the States originally covered by §5 than it is nationwide. 

Congress heard warnings from supporters of extending §5 that the evidence in the record did not address “systematic differences between the covered and the non-covered areas of the United States[,] . . . and, in fact, the evidence that is in the record suggests that there is more similarity than difference.” 

(“The most one can say in defense of the [coverage] formula is that it is the best of the politically feasible alternatives or that changing the formula would . . . disrupt settled expectations”).

The parties do not agree on the standard to apply in deciding whether, in light of the foregoing concerns, Congress exceeded its Fifteenth Amendment enforcement power in extending the preclearance requirements. 

The district argues that “‘[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end,’”

The Federal Government asserts that it is enough that the legislation be a “‘rational means to effectuate the constitutional prohibition,’” 

That question has been extensively briefed in this case, but we need not resolve it. The Act’s preclearance requirements and its coverage formula raise serious constitutional questions under either test.

So there you have it.  In clear, and unmistakable terms, the Roberts Court told Congress EXACTLY what would happen as soon as Sections 4 and 5 were properly before the Court.  In 2009.

Pop quiz:  Who exactly controlled the White House and BOTH houses of Congress in 2009?

The Democratic Party.  The party of voting rights.

Even as it reauthorized the Voting Rights Act, in 2006, Congress knew there were problems with it. They just had no readily available means to fix it. The Republicans controlled the White House, the Senate and the House of Representatives. It wouldn’t be until January of 2007 that Democrats regained control of Congress and another 2 years before they regained control of the White House.

But in 2009, when Democrats regained control of all three, for the first time since 1993, no efforts were undertaken to cure the Voting Rights Act, even after the Supreme Court’s ruling in Northwest Austin Municipal Utility District One v. Holder.

However, we did get ObamaCare and the Stimulus.

That is where we have to begin asking questions.

For sure, there is no immediate way to re-write Sections 4 or 5 of the Voting Rights Act. And from the record of the scholars, there is no easy way to do it even if the votes were there for it.

We would need to reclaim a filibuster-proof majority in the Senate and regain an operative majority in the House, in an upcoming election year where we are unlikely to regain the house, period, and will be fighting for our lives to maintain the majority Democrats have in the Senate.

In the meantime, the previously “covered” states are now free to pass as much legislation which potentially suppresses voters as they like free from the cumbersome leash of the Voting Section of the Civil Rights Division of the Department of Justice.

Because there is no way, on Earth, that the Republicans in Congress allow that formula to be revised and adopted while there are so many voters to intimidate and suppress nearing both the 2014 Midterm and the 2016 Presidential Elections.

Or put another way, had the Supreme Court issued this ruling in 2011 or 2012, almost every state in the South would have passed voter ID laws in advance of the 2012 Presidential Elections, like Pennsylvania did.

So, in the interim, the Attorney General must aggressively use Section 2 of the Voting Rights Act and act as the “Public Advocate” to litigate these issues in the stead of the citizens who will be potentially disenfranchised.

Better start calling your Congressperson and demanding nothing less. Some of the previously covered states couldn’t wait a full day before announcing their immediate intention to write new laws, laws they dare not have attempted just one day prior.

Better yet, take the time between now and the November 2014 midterm elections to obtain photo ID and VOTE!

Voter intimidation and voter suppression only work because so few of us actually vote.

These laws, regardless of what they look like, are only designed to curtail the voting behavior of a very small portion of the nation’s registered voters.  In 1870, when the 15th Amendment was ratified, many States used these laws to keep Blacks from voting at all.  Nowadays it is far more difficult to just deny minorities access to the franchise.  But they no longer have to, as we largely remove ourselves from the democratic process by just not showing up.  And because voter turnout, nationwide, is so low, all those who wish to keep their power (and keep many other people down) have to do is just shave off another few percentage points from the margins, because elections are largely won and/or lost within the margins.

6 thoughts on ““Flag on the Play…” The Voting Rights Act – The Supreme Court Calls a Penalty – On Congress

  1. Anonymous

    It would help with Holder's credibility if he enforced all of the laws equally and fairly.

    The whole New Black Panther Party voter intimidation case and its outcome stained his image in the view of many people. So, his credibility in attacking anyone on election law issues is very low.

  2. BrianTH

    This comment does not make any sense to me. The Voting Rights Act provisions in question are not the ones that were at stake in the New Black Panther Party case. Generally, the Voting Rights Act was renewed in 2006 by a vote of 390-33 in the House and 98-0 in the Senate, and signed by then-President George W. Bush. The constitutionality of the Voting Rights Act in no way depends on any sort of credibility determination with respect to Holder.

  3. Anonymous

    You conveniently forgot the nightsticks they were holding and beating against the palm of their other hand in a threatening manner.

    Also forgot to mention that the US had already won the case in court until Holder had it withdrawn.

  4. BrianTH

    For the record, the United States got a default judgment against Samir Shabazz, enjoining him from displaying a weapon within 100 feet of a Philadelphia polling site:


    Samir Shabazz was the guy with the nightstick. The controversy arises from the fact the United States dropped the action against the other guy who was there, the New Black Panther Party itself, and the national head of the New Black Panther Party.

    Again, though, I just don't get what this has to do with whether or not other uninvolved sections of the Voting Rights Act are constitutional, and what to do now that the Supreme Court has ruled they are not.

  5. EdHeath

    An issue, as far as I can see, is that regardless of John Roberts warning us in 2006, 2009 or any time, the Court had to know that striking out part of the Voting Rights Act in 2012 would have the effect it did. And Republicans have acted just as the anonymous commenter here has, by making unrelated commentary of a highly dubious nature. Even given the Black Panthers might have intimidated some voters, one poling place out of the, what tens or hundreds of thousands around the US makes only the tiniest of differences. Compare that with state sanctioned voter intimidation as all the minority poling stations in Florida, Ohio, Texas, Alabama, etc.

    I would maintain that the filibuster threat was real enough in 2009 as to make re0writing the voting rights act problematic. Plus Republicans would have said “Aha, Obama really is interested in disenfranchising Republicans”. It would have been grist for the mill, an excuse for a future Republican House to bring an impeachment against Obama.


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