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The Wages of Neo-Calhounism


As most of you know, jurisdictions previously covered by Section 4 of the Voting Rights Act before John Roberts nullified it in his Daily Caller column Shelby County v. Holder have –shockingly! — reacted by enacting the kind of vote suppression measures the Act was enacted to protect:

When Aracely Calderon, a naturalized US citizen from Guatemala, went to vote in downtown Phoenix just before the polls closed in Arizona’s March 22 presidential primary, there were more than 700 people in a line stretching four city blocks. She waited in line for five hours, becoming the last voter in the state to cast a ballot at 12:12 am. “I’m here to exercise my right to vote,” she said shortly before midnight, explaining why she stayed in line. Others left without voting because they didn’t have four or five hours to spare.

The lines were so long because Republican election officials in Phoenix’s Maricopa County, the largest in the state, reduced the number of polling places by 70 percent from 2012 to 2016, from 200 to just 60—one polling place per 21,000 registered voters. Previously, Maricopa County would have needed federal approval to reduce the number of polling sites, because Arizona was one of 16 states where jurisdictions with a long history of discrimination had to submit their voting changes under Section 5 of the Voting Rights Act. This part of the VRA blocked 3,000 discriminatory voting changes from 1965 to 2013. That changed when the Supreme Court gutted the law in the June 2013 Shelby County v. Holder decision.

The polling place reductions in Maricopa County were a glaring example of a disturbing trend. The Leadership Conference for Civil Rights surveyed 381 of the 800 counties previously covered by Section 5 where polling place information was available in 2012 or 2014 and found there are 868 fewer places to cast a ballot in 2016 in these areas. “Out of the 381 counties in our study, 165 of them—43 percent—have reduced voting locations,” says the important new report.

Brett Kavanaugh is an almost certain supporter of this neoconfederate turn (as was his predecessor):

Donald Trump’s new Supreme Court nominee, Brett Kavanaugh, could determine how the court rules on cases that shape the future of voting rights in the United States. And if his track record is any indication, many Americans could be disenfranchised as a result.

As a judge on the DC Circuit Court of Appeals, Kavanaugh voted in 2012 to uphold a South Carolina voter ID law that the Obama administration said would disenfranchise tens of thousands of minority citizens. The Justice Department blocked the law, which required government-issued photo identification to vote, in late 2011 for violating the Voting Rights Act.

“The absolute number of minority citizens whose exercise of the franchise could be adversely affected by the proposed requirements runs into the tens of thousands,” wrote Tom Perez, who was then assistant attorney general for civil rights and now leads the Democratic National Committee. The Justice Department found that more than 80,000 minority registered voters in South Carolina did not have DMV-issued identification, with African Americans 20 percent more likely than whites to lack such ID.

But when South Carolina then sought approval for its law from a three-judge court panel in Washington, DC, Kavanaugh wrote the opinion upholding it. He found that the controversial law “does not have a discriminatory retrogressive effect” and “was not enacted for a discriminatory purpose.” He pointed to a Supreme Court decision upholding Indiana’s voter ID law in 2008. “The Supreme Court’s affirmation of the general legitimacy of the purpose behind a voter ID law is consistent with the fact that many States—particularly in the wake of the voting system problems exposed during the 2000 elections—have enacted stronger voter ID laws, among various other recent changes to voting laws.”

From 2011 to 2012, 19 states controlled by Republicans passed laws restricting access to the ballot. These included voter ID laws, cutbacks to early voting, and restrictions on voter registration that disproportionately targeted Democratic constituencies, like voters of color.

South Carolina didn’t present any cases of voter fraud to justify its law, but Kavanaugh wrote that such laws were constitutional despite an absence of evidence of fraud. “We conclude that South Carolina’s goals of preventing voter fraud and increasing electoral confidence are legitimate; those interests cannot be deemed pretextual merely because of an absence of recorded incidents of in-person voter fraud in South Carolina,” he wrote.

Kavanaugh’s opinion suggests that when it comes to voting rights, he would reliably side with the Supreme Court’s conservative majority, which in 2013 gutted the Voting Rights Act, ruling that states with a long history of voting discrimination no longer needed federal government approval for election changes. This year, the court’s conservatives also upheld voter purging in Ohio and racial gerrymandering in Texas.

This is what the Republican Party, at all levels, is in 2018.

Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court’s opinion today. The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story. Without even identifying a standard of review, the Court dismissively brushes off arguments based on “data from the record,” and declines to enter the “debat[e about] what [the] record shows.” One would expect more from an opinion striking at the heart of the Nation’s signal piece of civil-rights legislation.

I note the most disturbing lapses. First, by what right, given its usual restraint, does the Court even address Shelby County’s facial challenge to the VRA? Second, the Court veers away from controlling precedent regarding the “equal sovereignty” doctrine without even acknowledging that it is doing so. Third, hardly showing the respect ordinarily paid when Congress acts to implement the Civil War Amendments, and as just stressed, the Court does not even deign to grapple with the legislative record.

Shelby County v. Holder (Ginsburg, J., dissenting.)

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