Uncle Thomas is Still A Lawn Jockey for the Extreme Right Part 2

"Just as the slavemaster in that day used Tom, the house Negro, to keep the field Negroes in check, the same old slavemaster today has Negroes, who are nothing but modern day uncle toms,...to keep you and me in check." Malcolm X

Last week, by declaring Section 4 of the Voting Rights Act unconstitutional, the Supreme Court ripped out the heart of the Act. For Uncle Thomas, that was not enough. To prove his loyalty to his right wing sponsors, that sellout went above and beyond the call of duty. In his dissenting opinion, that house negro wrote:

"I join the Court’s opinion in full but write separately to explain that I would find §5 of the Voting Rights Act unconstitutional as well. The Court’s opinion sets forth the reasons."

If Clarence Thomas was a real black man, the Voting Rights Act would still be intact. He is a disgrace. As an African American from Savanna, Georgia who lived during the Jim Crow era, he should know better than anyone why we still need the Voting Rights Act.

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.

 

The Voting Rights Act is Not A Racial Entitlement

Last week, during oral arguments for Shelby County v. Holder, U.S. Supreme Court Justice Scalia made the following controversial comments:

"The problem here, however, is suggested by the comment I made earlier, that the initial enactment of this legislation in a -- in a time when the need for it was so much more abundantly clear was -- in the Senate, there -- it was double-digits against it. And that was only a 5-year term.

Then, it is reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it.

And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don't think that's attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes."

Justice Scalia's dismissive and condescending remarks are highly offensive for three reasons. First, the term" racial entitlements" implies that the Voting Rights Act ('VRA") is a voluntary handout to an undeserving people. 

That outlook negates our history and our struggle for voting rights. We must never forget our history. Never. The VRA is written in our blood.  Africans did not come to this country on the Mayflower. We did not voluntarily immigrate to this country. We were kidnapped and brought to this nation in chains. We were not citizens. We were property like a horse or cow. In fact, farm animals were treated with more respect and dignity than black people.

White supremacy was the only real racial entitlement system in America.  By law, the white man was entitled to rape, beat and kill black people with impunity.  In the words of the Dred Scott decision, the black man did not have any rights that the white man was bound to recognize.

After slavery, Congress passed the 13th, 14th and 15th Amendments. Those laws granted us citizenship rights. The Thirteenth Amendment abolished slavery. The Fourteenth Amendment guaranteed due process rights and equal protection under the law. The Fifteenth Amendment guaranteed all citizens the right to vote.

Despite the enactment of those crucial Constitutional Amendments, the forces of white supremacy used outright terrorism and Jim Crow laws to deprive African Americans of the right to vote and other basic civil and human rights. White racists did everything in their power to ensure that only white people were entitled to vote. The former states of Confederacy used poll taxes and so-called literacy tests to disenfranchise African Americans. Such tactics maintained the racist white power structure in the South with an iron fist.

We fought to end such racist practices. We marched and litigated. In response, police officers brutally beat us with batons and unleashed vicious dogs on us. The dogs bit us and ripped our clothes and flesh. To extinguish our hope, firemen used powerful blasts of cold water to slam us against buildings and throw us down the street. In addition to police brutality, we were victims of domestic terrorism. Terrorists assassinated civil rights activists like Medger Evers and countless others.

As a result of our struggle and sacrifice, Congress enacted the VRA to fulfill the broken promises of the Fifteenth Amendment. It was not a racial entitlement. Section 2 of the VRA prohibits discriminatory voting laws. Section 5 requires jurisdictions with a history of discriminating against African Americans to obtain preclearance from the Department of Justice and/or the United States District Court for the District of Columbia prior to enacting any changes in their voting laws.

Second, Scalia's comments suggest that Section 5 is unwarranted and unnecessary. VRA's effectiveness is unquestionable. It is evident by the increased black voter registration and participation rates. It is clear by the astronomical increase in the number of African American elected officials on the local, state and federal level. The election and reelection of President Obama, the nation's first African American President, epitomizes the VRA's success. However, the U.S. Senate remains virtually all white.  Moreover, there have been very few black governors.  Those are clear reminders that America still has a long way to go.

Section 5 is essential. Unlike Section 2, Section 5 prevents discrimination before it occurs. It saves plaintiffs the time and expense of trial. It places the burden on former Jim Crow states to demonstrate that their proposed voting laws changes will not adversely impact minority voters.

Shelby County, the petitioner, is prime example of why we still need Section 5. As Justice Sotomayer pointed out during oral arguments, the County had 240 discriminatory voting laws blocked by Section 5 and numerous violations remedied by Section 2 litigation. During oral arguments, Justice Kagan noted that the successful Section 2 litigation rate is four times higher in the covered jurisdictions than the rate in the non-covered jurisdictions. Again, that is more proof that Section 5 is still necessary.

Contrary to the Justice Scalia's assertions, Section 5 was not reauthorized for purely cynical political reasons. In 2006, Congress reviewed an extensive record, conducted hearings and determined that Section 5 was still necessary. Instead of respecting the role of the legislative branch and extending due deference, Justice Scalia and the other conservative justices question the findings and motives of Congress. If that is not judicial activism, I don't know what is. Where are those conservatives who usually love to complain about judicial activism?!?

As Congress did, we must realize that racism is not dead. As LDF attorney Debo Adegbile asserted during oral arguments, some white Alabama legislators in 2011 referred to African American voters as "illiterates" and "aborigines".  Most of the time, racism is less overt. It is covert. It has evolved and adapted to the times. Poll taxes and literacy tests have been replaced with restrictive voter ID laws, voter purges, ending early voting, documentary proof of citizenship requirements, restrictions on voter registration and deliberate noncompliance with the National Voter Registration Act. Such modern day tactics are designed to suppress minority voters.  As reported by Think Progress, Republican politicians in Florida, one of the states covered under Section 5, admitted that such laws are designed to suppress minority voters. 

Section 5 is an effective tool to address this new covert form of racism. In 2012, Section 5 prevented states such as Texas and South Carolina from enacting restrictive voter ID laws. Without the safeguards of Section 5, such voter suppression and dilution tactics will escalate in the South and throughout the other covered jurisdictions.

Finally, Scalia's statements imply that only minorities benefit from Section 5 of the Voting Rights Act. Section 5 benefits the entire nation. It has enabled this country to get closer to fulfilling its democratic ideals.  It protects all citizens' rights to participate in the electoral process. Such competition and involvement helps produce the best form of government. In sum, Section 5 is not a racial entitlement. It is a remedy to racial entitlement.

This article is cross-posted on Jack and Jill Politics.