Justices Make Voter Suppression an Orphan Child

The facts, figures and statements in this blog can be found in: Ari Berman, “Courting Segregation,” The Nation, March 25, 2013.

Representative John Lewis  listened in dismay as the conservative justices on he U.S. Supreme Court described Section 5 of the Voting Rights Act (VRA) as an antiquated infringement on state jsovereignty, treating some states differently from others based on old data from the 1960s and ’70s. Lewis said he almost cried when Justice Antonin Scalia characterized the VRA as a “perpetuation of racial entitlement.”

“To Kennedy and his conservative colleagues, states with a historic record of discrimination — such as Lewis’s home state of Alabama — where the current challenge originated — are now the ones being discriminated against.” Justice Anthony Kennedy asked: “If Alabama wants to have monuments to the heroes of the civil rights movement, ir it wants to acknowledge the wrongs of its past, is it better off doing that if its an… independent sovereign or if its under the trusteeship of the United States government?” Kennedy doesn’t seem to realize that the issue is voter suppression.

Voter suppression never came up during the oral arguments. “The justices did not hear, for example, that six of the nine states fully covered under Section 5, including Alabama, have passed new voting restrictions since 2010. Nor did they hear that the Justice Department and federal courts blocked four major discriminatory voting changes from becoming law last year under Section 5 (voter ID laws in Texas and South Carolina, early voting cutbacks in Florida, and redistricting maps in Texas).”

Kennedy suggested that Section 2 of the VRA might be substituted for Section 5, but Section 2 forces plaintiffs to show that a voting change is discriminatory after it has gone into effect. Section 5 stops a violation before it occurs, while Section 2 can redress only after it happens. One puts the burden on the perpetrator, the other on lthe victim. Kennedy had said in 2009: “Section 2 cases are very expensive. They are very long. They are very inefficient.”

Ari Berman says: “Without Section 5, discriminatory voting laws in places like Florida, South Carolina and Texas would have been on the books in 2012 and could have been challenged only after years of costly and complex ltigation.”

During the hearing, Chief Justice John Roberts asked Solicitor General Donald Verrilli, “Is it the government’s submission that the citizens in the South are more racist than citizens in the North?” The honest answer, especially in political terms, is yes. Voter suppression attempts are more frequent in the South, anti-minority views are more ubiguitous, minority officehoilders have less power relative to their constituent populations, electoral maps are more segregated, and racially polaized voting is more extreme than in other parts of the country.”

If we want to tout  bipartisan agreement on a major issue as evidence that there is strong public support for Section 5 in the nation, Section 5 has been overwhelmingly reauthorized four times by Congress and signed by four Republican presidents.

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