Act II for voting rights -- June 27, 2013 column

By MARSHA MERCER

“Voting discrimination still exists; no one doubts that,” Chief Justice John G. Roberts Jr. declared in his Supreme Court opinion that nevertheless shredded part of the federal voting rights safety net.

By a 5-4 vote, Roberts and the four other justices nominated by Republican presidents effectively ended nearly 50 years of federal oversight on voting practices in mostly Southern states that had a history of discrimination.

The court said that times have changed and racial progress has made outdated the decades-old formula Congress used to decide which states had to submit their election law changes in advance.  Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito joined Roberts in the majority opinion.

You won’t be surprised that the four justices appointed by Democratic presidents saw the case, Shelby County v. Holder, much differently.

“Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet,” Justice Ruth Bader Ginsburg wrote in a stinging dissenting opinion, which was joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Now what? Until Tuesday, the Voting Rights Act of 1965 required the states of Alabama, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, Virginia and Alaska to submit changes in their election laws to the federal government. Parts of California, Florida, Michigan, New York, North Carolina and South Dakota were also required to do so.

Today, those states and localities no longer have to “beseech” – Roberts’ word -- the government for approval. Several states said they’d move quickly to put in place strict new voter ID laws.

Attorney General Eric Holder says the Justice Department will continue to monitor all states and to file lawsuits when questionable steps are taken. Lawsuits take years. Preclearance is a fairly quick process that puts the burden on jurisdictions to prove at the outset that their new election laws do not discriminate.  

The court challenged Congress to rewrite the law’s Section 4, which contains the formula identifying states needing preclearance. The smart money is on Congress to fail, once again, to do anything.  

If members of Congress can’t pass a farm bill or immigration legislation, and might well fight over whether the evening meal is called dinner or supper, how can they possibly agree on politically explosive standards for which states must get federal scrutiny of their election decisions?  

Yes, but…how can Congress NOT act – if the people demand it? It has happened before.

In August 1963, the March on Washington drew more than 200,000 in peaceful demonstration to the Lincoln Memorial. Martin Luther King Jr. gave his “I Have a Dream” speech.

After the march, King and other leaders went to the White House and talked with President John Kennedy and Vice President Lyndon Johnson about the need for bipartisan civil rights legislation. The Civil Rights Act of 1964 and Voting Rights Act of 1965 eventually resulted.  

On the 50^th anniversary of the march and Dream speech, the civil rights community is planning five days of events in August in Washington Leaders say this won’t be a nostalgia trip but a call to restart the civil rights movement and to urge Congress to act on voting rights for the 21^st century.   

For the record, not everyone who has dealt with the preclearance rules has found them burdensome.

“I have generally found the process straightforward, and given the importance of voting, not onerous,” said Sen. Tim Kaine, D-Va., who served as Richmond’s mayor as well as lieutenant governor and governor in a state that had its share of civil rights issues.

Kaine suggested that until Congress acts, jurisdictions previously covered should continue to submit their election changes for preclearance to the Justice Department “as a sign to their own constituents that they are committed to ensuring equal voting rights.” Nice try.

But then Kaine was once a missionary.

The country is becoming more diverse, but members of Congress actually risk little politically if they fail to respond to racial diversity. The average House Republican district is 75 percent white while the average Democratic district is 51 percent white, according to the Cook Political Report. 

So here we are: Everybody agrees voting discrimination is still with us. Democrats and Republicans always say voting isn't a partisan issue. Prove it. Work together on new rules for preclearance and ensure that everybody eligible to vote can do so.

© 2013 Marsha Mercer. All rights reserved.

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