Denying Southern Reality and Other Acts of a Politically Motivated SCOTUS

I think y’all know by now that I was raised culturally southern.  I was born in the South.  I live in the deep South and have for nearly two decades.   We’ve been regaled recently with the news that Southern Cuisine maven Paula Dean still longs for the good ol’ days of smiling black servants or slaves.  We ‘ve heard Haley Barbor talk up the old Southern institutions that were the institutional face of the KKK as being positive community builders. I still can’t believe that Mississippi doesn’t celebrate Memorial Day because it is a “Yankee Holiday” and enshrines the Confederate version by declaring April “Confederate Heritage Month”.  But, you do not need these folksy stories of the obvious racism in the South to understand why today’s SCOTUS decision is a complete sham.   Scalia has said that the Voting Rights Act is a “racial entitlement” in the past.  It is not.  It protects disenfranchised voter’s most basic right in a democracy.  This is another example of the hypocrisy of the ‘conservative’ wing of the court.  This is pure judicial activism.

Here is a list of things from Bader Ginsberg’s scathing dissent that lets you know exactly why the VRA is still necessary and is about protecting rights not creating entitlements.

Ginsburg’s dissent also rattled off these eight examples of race-based voter discrimination in recent history:

• “In 1995, Mississippi sought to reenact a dual voter registration system, ‘which was initially enacted in 1892 to disenfranchise Black voters,’ and for that reason was struck down by a federal court in 1987.”

• “Following the 2000 Census, the City of Albany, Georgia, proposed a redistricting plan that DOJ found to be ‘designed with the purpose to limit and retrogress the increased black voting strength…in the city as a whole.'”

• “In 2001, the mayor and all-white five-member Board of Aldermen of Kilmichael, Mississippi, abruptly canceled the town’s election after ‘an unprecedented number’ of AfricanAmerican candidates announced they were running for office. DOJ required an election, and the town elected its first black mayor and three black aldermen.”

• “In 2006, the court found that Texas’ attempt to redraw a congressional district to reduce the strength of Latino voters bore ‘the mark of intentional discrimination that could give rise to an equal protection violation,’ and ordered the district redrawn in compliance with the VRA…In response, Texas sought to undermine this Court’s order by curtailing early voting in the district, but was blocked by an action to enforce the §5 pre-clearance requirement.”

• “In 2003, after African-Americans won a majority of the seats on the school board for the first time in history, Charleston County, South Carolina, proposed an at-large voting mechanism for the board. The proposal, made without consulting any of the African-American members of the school board, was found to be an ‘exact replica’ of an earlier voting scheme that, a federal court had determined, violated the VRA…DOJ invoked §5 to block the proposal.”

• “In 1993, the City of Millen, Georgia, proposed to delay the election in a majority-black district by two years, leaving that district without representation on the city council while the neighboring majority white district would have three representatives…DOJ blocked the proposal. The county then sought to move a polling place from a predominantly black neighborhood in the city to an inaccessible location in a predominantly white neighborhood outside city limits.”

• “In 2004, Waller County, Texas, threatened to prosecute two black students after they announced their intention to run for office. The county then attempted to reduce the avail ability of early voting in that election at polling places near a historically black university.”

• In 1990, Dallas County, Alabama, whose county seat is the City of Selma, sought to purge its voter rolls of many black voters. DOJ rejected the purge as discriminatory, noting that it would have disqualified many citizens from voting ‘simply because they failed to pick up or return a voter update form, when there was no valid requirement that they do so.'”

SCOTUS Blog has some interesting analysis of the decision which is shocking in its naked political approach.

To those who will be distraught, outraged, or fearful, the essential question at stake in the Court’s decision – and in the continuing vitality of Section 4 — is whether we believe racial discrimination in voting still exists in the South.  The question being framed this way, the Court’s decision today will appear to be, at best, a denial of reality and a reflection of a naïve “post-racial” view that in the Obama era, racial discrimination in voting has ended.   Justice Sotomayor, at oral argument, perfectly reflected this perspective on what the decision represents when she posed this pointed question to the VRA’s challengers:   “Do you think that racial discrimination in voting has ended, that there is none anywhere?”  The answer to that question must be no.  From this vantage point, then, as long as racial discrimination in voting still does take place at all in the South, Section 4 of the VRA – the part the Court invalidated – remains not just justifiable, but essential.

In addition, to many people, the VRA symbolizes protection of the crown jewel of rights, the right of access to the ballot box.   For those who know the history, this right was born from the blood and the bodies of all those who had been given the last full measure of their devotion to secure full access for all to the ballot box – those beaten on the bridge from Selma, Alabama in 1965, the three civil rights workers lynched in the Mississippi summer of 1964, and many others.  How can the Court find unconstitutional an Act that plays any role at all in ensuring political equality regarding this most sacred right?  And why should the Court second-guess Congress on these issues?

Yet to others, including the Court’s pivotal actor, Justice Kennedy, the essential question at stake is whether our political system is frozen in place on issues concerning race.  Do our political institutions and culture have the capacity to recognize that dramatic changes at the intersection of race and voting have taken place over recent decades?  Section 4 was created in 1965 as a short-term measure for five years; in initially upholding that system, the Court called it “an uncommon exercise of congressional power” justified by the “exceptional circumstances” of the massive disfranchisement of black voters (and many poor whites) that existed when the VRA was enacted.  In 1970, Congress extended this system for another five years; in 1975, for another eight; and in 1982, for twenty-five more years.   Then, in 2006, in the provision the Court struck down, Congress re-authorized this system for another twenty-five years, until 2031.  Thus we moved from a five-year regime in 1965 for exceptional circumstances to a sixty-six-year regime that continues to single out nine states (and fifty-three other counties) for unique federal control.

But of even more symbolic significance, from this perspective:  these areas all became covered because of their voting practices in 1964 or, at the latest, 1975 – nearly forty years ago.  And these are the same areas, and nearly the only areas, that have remained covered ever since.  Though the Act formally creates a mechanism to permit these areas to prove their current entitlement to be relieved of coverage, this part has never been a meaningful way for the Act to unwind itself from within:  fewer than one percent of all the counties originally covered that have significant minority populations have ever emerged from the Act.  From this vantage point, the question the case was “about,” then, is this:  how can Congress act as if nothing significant enough has changed in the last forty years to justify any meaningful change at all in Section 4?  Even if areas of discriminatory voting practices remain, surely they cannot mirror so exactly the areas of which this was true forty or fifty years ago.

From this starting place, Section 4 symbolizes that the issue of race remains so charged that our political system lacks the capacity to move forward to any extent at all.  As Justice Kennedy put it at the argument:  Congress “should use criteria that are relevant to the existing [conditions] – and Congress just didn’t have the time or the energy to do this; it just re-enacted it.” And despite the popular image that Section 4 is about protecting access to the ballot box, Section 4 long ago in practice became more about racial redistricting than access to the ballot box.  While the Justice Department in recent decades blocked access changes on average fewer than twice a year, it blocked redistrictings nearly fourteen times as often.  Indeed, in the 2006 Act itself, Congress itself did not rely primarily on ballot-box access problems to justify renewing Section 4, but on issues like redistricting.  If Section 4 is “about” access to the ballot box in the public imagination, to the Court majority, I suspect, Section 4 is about racial redistricting.

 Can this decision bring about any good?  Well, it is possible because it should be clear now there is a total Republican assault on modernity and a world where white men don’t get to tell every one else what to do.  The last election showed that the nation’s minorities and women were not about to let that happen again.

On its face, this looks like a big victory for Republicans. But is it really? I suspect it will turn out to be a poisoned chalice. Many of the GOP’s current problems stem from the fact that it is overly beholden to its white, Southern base, at a time when the country is rapidly becoming more racially diverse. In order to expand its base of power beyond the House of Representatives, the GOP needs to expand its appeal to minority voters. As the ongoing battle over immigration reform demonstrates, that process is going poorly and looks like it will be very difficult.

The Supreme Court’s decision to strike down a central provision of the Voting Rights Act will make it easier for Republicans to hold and expand their power in those mainly Southern states. That will, in turn, make it easier for them to hold the House. But it will also intensify the Southern captivity of the GOP, thereby making it harder for Republicans to broaden their appeal and win back the White House.

There is only so long that these neoconfederates can continue to push their backwards agendas through the federal government.  They need to be thrown out of statehouses too.  This seems to me an odd continuation of the Civil War.  Nixon’s Southern Strategy will divide this country for decades to come. The hypocrisy of judicial overreach in this decision and most others that are penned by Scalia, Alito, Thomas, or Kennedy just oozes political scamming and it makes us all look bad.  This is just another embarrassing attempt to stop the future. Future Courts will make hay of it.