The Supreme Court Unleashed the South on Black Voters

“I’m going to be real honest with you, the Republican Party doesn’t want black people to vote if they’re going to vote 9-to-1 for Democrats.”  Ken Emanuelson, Texas Tea Party leader

African Americans and others fought, bled and died for voting rights. Following the 50th Anniversary of assassination of Medgar Wiley Evers and the 49th anniversary of the assassinations of James Chaney, Andrew Goodman and Michael Schwerner, the United States Supreme Court showed utter disrespect for the black people and our struggle. Instead of protecting the Voting Right Act ("VRA"), the Court castrated it.  They rendered it impotent. With its disastrous decision, the Court eviscerated all that we struggled for.

In the case of Shelby County v. Holder, the Court held that Section 4 of the Voting Rights Act is unconstitutional. In order to understand the importance of Section 4, one must understand Section 5. Section 5 requires covered jurisdictions to obtain preclearance from the U.S. Department of Justice or the United States District Court for the District of Columbia prior to implementing any changes in their voting laws. The covered jurisdiction must prove the proposed law "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." Section 4 sets forth the formula that determined which jurisdictions are covered. Covered jurisdictions includes States and counties that have a long history of discriminating against African American voters. More specifically, Section 4(b) states:

"(b) The provisions of subsection (a) shall apply in any State or in any political subdivision of a state which (1) the Attorney General determines maintained on November 1, 1964, any test or device, and with respect to which (2) the Director of the Census determines that less than 50 percentum of the persons of voting age residing therein were registered on November 1, 1964, or that less than 50 percentum of such persons voted in the presidential election of November 1964."

By striking down Section 4, the Supreme Court rendered Section 5 useless, at least until Congress acts. It is like having a car with no engine or a computer with no hard drive.

Another key provision of the VRA is Section 2. Section 2 states that "no voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color." Section 2 remains in place. However, it is not as effective as Section 5. Section 5 is proactive. It fights discrimination in voting before it occurs and saves plaintiffs the time and expense of litigation.

The Court held that Section 4's formula is outdated and violates the principle of equal sovereignty among the States. Basically, the Court found that the current burdens of Sections 4 and 5 are not justified by today's current needs.  The Court noted that states no longer use literacy tests and poll taxes to prevent African Americans from voting.  The Court further stated "African American voter turnout exceeded white voter turnout in five of the six States originally covered by Section 5, with a gap in the sixth State of less than one half of one percent." The Court mentioned that "minority candidates hold office at unprecedented levels."  The Court acknowledged that that progress is a direct result of the effectiveness of Section 4 and 5.

Here is the layman's translation. The Court said, "Since the Voting Rights Act worked so well, you people don't need it any more."  The Court basically said, "You Negroes have black mayors, black congressman,  black senators and even a black president. What more do you people need?" For the first time in history, the black vote exceeded the white vote. Instead of celebrating that achievement, the Court decided to collectively punish black people by stripping us of the tool that made that accomplishment possible. As Justice Ginsburg stated in her dissent, "[t]hrowing out preclearance when it has worked and is continuing to work to stop discrimination changes is like throwing away your umbrella in a rainstorm because you are not getting wet."

As pointed out in the Ginsburg's dissent, the Court failed to consider the current day, "second generation barriers to minority voting" such as racial gerrymandering, adoption of at large voting, vote dilution and other tactics that "diminish the minority community's ability to fully participate in the electoral process and to elect their preferred candidates." Moreover, the court failed to consider that the bailout provisions keep the VRA current. The bailout provisions allow covered jurisdictions to opt of Section 5 by proving that they no longer discriminate against minority voters.

While I read the Court's opinion, I keep thinking about Justice Scalia's saying that the VRA "a racial entitlement."  In his twisted mind, such "racial entitlements" are difficult to eliminate through the normal political process. Accordingly, this activist Supreme Court decided to substituted its judgment for Congress' judgment.

In the Court's eyes, it did not matter that Congress considered a voluminous 15,000 page record when it decided to reauthorize Section 5 of the VRA. As noted in the dissenting opinion, that record established DOJ blocked over 700 discriminatory voting law changes between 1986 and 2006.  According to the Katz study in citing in the dissenting opinion, although the covered jurisdictions are less than 25 of the population, the covered jurisdictions accounted for 56 percent of the successful Section 2 litigation and "there were nearly four times as many successful Section 2 lawsuits in covered jurisdictions as there were in noncovered jurisdictions." The record before Congress established that the covered jurisdictions are more racial polarized than the noncovered jurisdictions. In her dissent, Ginsburg correctly asserts such racial polarization "increases the vulnerability of racial minorities to discriminatory changes in voting law."

Now that the Supreme Court struck down Section 4 of the VRA, African American voters are vulnerable.  Although there are no literacy test and poll taxes, discrimination in voting is not dead.  It has evolved. We will have to confront more second generation barriers.  As Texas Tea Party leader Ken Emanuelson acknowledged, the Republican Party does not want black people to vote. Through its horrible decision in Shelby County v. Holder, the Court has unleashed the rabid, howling, southern states on black people. More specifically, MSNBC reports that:

"Texas is ground zero for measuring the impact. Just hours after the ruling was announced, Attorney General Greg Abbott said the state’s voter ID law “will go into immediate effect.” The law—the strictest in the country, and described by Attorney General Eric Holder as a “poll tax”—had been blocked last year under Section 5, after a federal court found it discriminated against blacks and Latinos, who, numerous studies show, are more likely than whites to lack ID. On Thursday, the Supreme Court officially threw out that ruling.

In South Carolina, the Supreme Court’s ruling may allow the state to enforce an existing voter ID law more strictly. Last year, a federal court, citing Section 5, blocked the law for the November election. It said the measure could go into effect in 2013, but only because the state promised to broadly interpret a provision making an exception for voters without ID, allowing them to vote if they affirm they weren’t able to obtain one. The court added that if South Carolina wanted to interpret the provision more narrowly, making it harder for those without ID to vote, it would need federal sign off under the Voting Rights Act...

Adam Piper, a spokesman for South Carolina Attorney General Alan Wilson, told MSNBC that the assurance the state gave the court about its interpretation of the provision “still applies.” Nonetheless, now that federal sign-off is no longer needed, state officials can likely interpret it however they choose in the future...

Then there’s Virginia, which recently passed its own voter ID law, scheduled to go into effect next year. Opponents of the law had held out hope that it might be blocked under Section 5. Now that’s moot, the measure appears likely to be in force for next fall’s midterms."

Contrary to the GOP's representations, such laws are not designed to prevent in person voter fraud.  In person voter fraud is extremely rare.  The real purpose such voter ID laws and laws limiting early voting is to suppress African American voters.  Such laws have a disproportionate impact on African Americans.The NAACP's Defending Democracy report states that:

"An astonishing 25% of African Americans (over 6.2 million African-American voters) and 16% of Latinos (over 2.96 million Latino voters) do not possess valid photo ID. By comparison, only 8% of whites are without a current government-issued photo ID. "

Furthermore, according to the Defending Democracy report, "African-American voters have been much more likely to take advantage of early voting, accounting for 22% of early voters during the 2008 general election, despite being only 13% of the Florida electorate.

GOP lawmakers know that such laws will suppress African American voters, a group that tends to vote for Democrats.  Last year, state House Majority Leader Mike Turzai acknowledged that the purpose of Pennsylvania's voter ID law was to help elect former Republican Presidential Mitt Romney.  In fact, as reported in  Palm Beach Post, former Florida Republican Party Chair Jim Greer admitted that the GOP limited early voting in Florida in order to suppress the black vote. This is just the beginning. If you do not act now, this will only be the tip of the iceberg.  If left unchecked, southern states will dilute the black vote through other schemes. We must urge Congress to correct the Supreme Court's supreme error.