Everyone likes being let off the hook at the last minute – someone else was assigned the unpleasant task, final exams were cancelled, or way back when, in the draft lottery, your birthday came up way late in the draw and you weren’t going to Vietnam. There would be no worst-case scenario to face. Cool. No one wants to face what is both inevitable and awful, and the Republicans certainly didn’t want to face what Republican National Committee Chairman Reince Priebus told them after the last election – we need to rethink what we’re selling here and modify a few things, or we’ll never win another national election. Face it. We lost the black vote, the Hispanic vote, overwhelmingly, the urban vote, most of the women’s vote, and the youth vote, and the vote of those who like science and think empirical fact matters – and let’s not even talk about the gays. Our demographic is evangelicals, angry old white men, and corporate officers. There just aren’t enough of those, and their numbers are shrinking. Somehow we need to win over minorities, as their numbers are exploding, and women, and the hip – or whatever word they use for that sort of thing is these days. Karl Rove backed Reince Priebus on this, and Bobby Jindal spent a few weeks telling Republicans that they had to stop being the stupid party – which didn’t work out, as the folks in Louisiana, where he is governor, seem to think he’s a fool, and his own legislature has shot down all of his bright ideas, which weren’t so bright.
The party rebelled. Sarah Palin started calling Karl Rove names, and at the moment, it’s clear that there will be no immigration reform. At his blog in the Economist, Will Wilkinson explains why:
The energetic ideological base of the Republican Party is a nationalist, identity-politics movement for relatively well-to-do older white Americans known as the “tea party”. The tea party is interested in bald eagles, American flags, the founding fathers, Jesus Christ, fighter jets, empty libertarian rhetoric, and other markers of “authentic” American identity and supremacy. That America is “a nation of immigrants” is a stock piece of American identity politics, but the immigrants that made America “America” were, well, not Mexican, and spoke English, or at least Pennsylvania Dutch. Sorry Mexicans! Even if each element of immigration reform, taken in isolation, is agreed to be a good idea by a solid majority of Republican voters, Republican politicians must nevertheless avoid too-enthusiastically supporting this package of good ideas, lest they fail to project sufficient appreciation for the importance of keeping America American and putting Americans first. To fail to introduce a dead-on-arrival poison-pill amendment that would, say, require all would-be Americans to score over 160 on the LSAT, or to personally assassinate a member of al-Qaeda before setting foot on the “path to citizenship” is to invite a primary challenge from a more thoroughly “American” American less cowed by the insidious deracinating forces of multicultural political correctness.
The Senate can pass what they want, by seventy votes if they want. The Chamber of Commerce and the Club for Growth and Grover Norquist and Bill O’Reilly can say immigration reform is the perfect thing to do – they have – and the CBO can say it would mean quick economic growth and a dramatic drop in the deficit – but this will die in the House. National elections don’t matter there. Sure, John McCain and then Mitt Romney had their hats handed to them in embarrassing national elections, but each House Republican knows all too well that the folks back home in their own carefully constructed safe district would toss them out on their ear if they ever voted for a path to citizenship for anyone. They have no Hispanics and blacks in their districts. Lines were drawn on maps. Those folks are elsewhere.
That’s not the half of it. Reince Priebus and Karl Rove know full well that any attempt at being something like being more inclusive would cost them their base, the only solid thing they have now. Reince Priebus called his suggestions the Growth and Opportunity Project, but you don’t hear much about it these days. Never winning another minority vote ever again seems both inevitable and awful – certain doom for the party – but you don’t want to make losing your base both inevitable and awful either. That’s doom too. There seems to be no way out of this dilemma. It’s a trap. If only someone would let them off the hook…
Someone just did:
The Supreme Court on Tuesday effectively struck down the heart of the Voting Rights Act of 1965 by a 5-to-4 vote, freeing nine states, mostly in the South, to change their election laws without advance federal approval.
The court divided along ideological lines, and the two sides drew sharply different lessons from the history of the civil rights movement and the nation’s progress in rooting out racial discrimination in voting. At the core of the disagreement was whether racial minorities continued to face barriers to voting in states with a history of discrimination.
“Our country has changed,” Chief Justice John G. Roberts Jr. wrote for the majority. “While any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”
The decision will have immediate practical consequences. Texas announced shortly after the decision that a voter identification law that had been blocked would go into effect immediately, and that redistricting maps there would no longer need federal approval. Changes in voting procedures in the places that had been covered by the law, including ones concerning restrictions on early voting, will now be subject only to after-the-fact litigation.
In short, blacks and Hispanics are about to find out that although they have a right to vote, for here on out it ain’t gonna be easy. And if you have a problem with that, sue, after the election, when it’s too late. Richard Hasen, a professor of law and political science at UC-Irvine out here, the author of The Voting Wars: From Florida 2000 to the Next Election Meltdown – he studies such things – offers this detail:
Here’s what’s going to happen now. Texas has already announced that it will put its voter-ID law into effect, a law that was on hold under Section 5 awaiting Supreme Court review. Texas’ law, one of the toughest in the nation, requires voters lacking acceptable ID (like a concealed-weapons permit) to travel up to 250 miles at their own expense to get one.
Texas’ law will be challenged on other grounds, but winning voter-ID cases has proved to be tough business. Now Texas can also re-redistrict, freed of the constraints of Section 5, splitting Latino and black voters into different districts or shoving them all in fewer districts to make it harder for them to have effective representation in the State Legislature and in Congress. The biggest danger of what the court has done is in local jurisdictions, where discrimination is more common and legal resources to fight back are thin.
Yes, but at least the Republican Party won’t have to remake itself into something new, as pesky people won’t be voting much now, and Hasen is amazed at this decision:
The court pretends it is not striking down the act but merely sending the law back to Congress for tweaking; it imagines that Congress forced its hand; and it fantasizes that voting discrimination in the South is a thing of the past. None of this is true. …
Section 5 of the Voting Rights Act requires certain states and parts of states (mainly in the South) to get permission from the federal government before changing voting rules. The law puts the burden on jurisdictions with a history of racial discrimination to demonstrate that any voting change – from a voter-ID law to moving a polling place – won’t make the minority voters the law protects worse off. In Section 4, Congress provided a formula for determining the jurisdictions to which Section 5 applies – but the data used to construct the formula is from the 1960s or 1970s. Congress renewed the act, most recently in 2006, without touching the old formula.
In Tuesday’s opinion, the court held that the formula was unconstitutionally outdated. The chief justice couches his opinion in modesty, stating that the court is striking only the Section 4 coverage formula and not Section 5. But don’t be fooled: Congress didn’t touch the formula in 2006 because doing so would have doomed renewal. Congress avoided the political issue then, and there’s no way today’s more polarized Congress will agree upon a new list of discriminatory states.
Roberts’ Supreme Court let the Republicans off the hook, although Josh Green isn’t so sure:
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. 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.
That’s a third nightmare scenario for Reince Priebus. This could make the Republican Party truly the Party of the South, and only the South, from here on out. It becomes a regional party, and regional parties only become national parties when the region secedes and forms its own nation. That didn’t work out last time around.
Josh Marshall just wants to think about this:
I still remain generally hopeful, over the medium term, certainly the long term that the changing nature of the electorate will prove too strong to be bridled by Republican voter suppression efforts which will undoubtedly redouble in response to this wildly activist ruling by the Supreme Court. In the short term, it’s not so clear, though, particularly with regards to 2014. Indeed, the 2012 election and this decision fit together like two pieces of a puzzle.
Republican state governments pushed through numerous laws to thin the electorate and particularly to reduce minority voting. It wasn’t totally successful because of a mix of energized minority voters who turned out in droves in response to these attacks and also because a small band of civil rights and voting rights attorneys who fought the laws across the country, making ample use of the Voting Rights Act.
They can’t do that now, but the coming effort to “thin out” the electorate could just make a whole lot of folks very angry. Yeah, they will wait in line for fourteen hours to vote against these guys. They will take a day off and drive five hundred miles round-trip to get that damned voter-ID card.
As for the decision itself, Eric Posner, a professor at the University of Chicago’s Law School, has a few choice words about that:
Chief Justice Roberts’ opinion in Shelby County v. Holder, the Voting Rights Act case, is a pretty lame piece of work. There is a longstanding constitutional norm of judges deferring to Congress. Courts strike down laws when they violate rights or exceed Congress’ power. But Section 5 of the Voting Rights Act, which requires nine states in the South (and other scattered places) to get approval from the Justice Department before changing their election laws, doesn’t violate anyone’s rights. It’s the type of legislation specifically authorized by the 15th Amendment of the Constitution, which says the right to vote “shall not be abridged” because of race or color. Roberts says that the singling out of Old South states – for what’s called “preclearance” by the Department of Justice – makes little sense now that blacks are as likely to register to vote as whites in those states, or nearly so. But Congress passes hundreds of statutes that are based on weak evidence, and courts routinely uphold them. Roberts doesn’t even try to argue that the costs imposed on states by the preclearance part of the Voting Rights Act exceed the benefits for people who would otherwise be deprived of the vote, which is what would be minimally necessary to show that the law does not advance the public good.
Instead, Roberts focuses on the offense to the sovereignty of states and a newly invented idea he calls the “fundamental principle of equal sovereignty.” State sovereignty means that the federal government should not intrude on political decision-making of states, including, Roberts says, their election laws; equal sovereignty means that when it does, it should intrude equally – on all of the states to the same degree.
Poser smells a rat:
Neither of these principles can explain where Roberts ends up. The idea of state sovereignty is riddled with exceptions and is largely a joke these days. The federal government calls the shots, and the states obey, in the area of elections as much as in any other. Roberts accepts the constitutionality of Section 2 of the Voting Rights Act, which forbids states to discriminate against minority voters and in this way also intrudes on state control over their elections. (Section 2 wasn’t at issue in the case the court decided Tuesday, so it’s alive and well. But it relies on lawsuits, not preapproval by the Justice Department, to ensure the rights of minority voters.) If Section 2 does not violate the Constitution, then what is special about Section 5 – which also forbids discrimination? From the standpoint of state autonomy, Roberts’ argument does not wash.
That leaves the “fundamental principle of equal sovereignty,” the idea that Congress may not single out certain states for special burdens. Yet Roberts is able to cite only the weakest support for this principle – a handful of very old cases that address entirely different matters.
It seems that Roberts in blowing smoke:
What exactly is wrong with the singling out of states by the federal government? Is the idea that when Alabama is on the playground with the other states, they’re going to make fun of it because it had to ask its mama for permission before going out to play?
In fact, the federal government doesn’t treat states equally and couldn’t possibly. Nearly all laws affect different states differently. Disaster-relief laws benefit disaster-prone states at the expense of disaster-free states. Pollution-control laws burden industrial states. Progressive taxes burden states where the rich are concentrated. Thanks to Congress, the Environmental Protection Agency can single out states with serious pollution problems, the Justice Department can keep an eye on states with serious corruption problems, and immigration authorities can single out Border States for surveillance. Indeed, Section 2 of the Voting Rights Act will continue to burden states with substantial minority populations relative to other states, just because you can’t discriminate against a minority population that doesn’t exist. Many more Section 2 claims will be brought in Alabama than in Montana, and so even under Section 2, Alabama has vastly less control over its election law than Montana has over its election law. Yes, Section 5 places an incremental burden on Alabama – but on top of an already unequal burden that Roberts cheerfully tolerates. So whatever explains the court’s decision today, the putative principle of equal sovereignty can’t be it.
Slate’s Emily Bazelon carries this forward:
The five conservatives struck down a law reauthorized by Congress just seven years ago because they don’t think the evidence for it was strong enough. Roberts reminds Congress: We warned you. True enough: In 2009, the court suggested that it was uncomfortable with Section 5, the part of the Voting Rights Act that requires nine states in the South (and a few other scattered towns and cities) to go to court or the Department of Justice to make any change to an election law. But why does Congress have to jump when the court says jump? With his 2009 opinion and now this one, Roberts set a trap for Congress. Instead of striking down Section 5 itself, in one mighty and attention-grabbing blow, the conservative majority is saying: Hey, this is on you, lawmakers. Just come up with a better way to justify this law and continue to use it to make elections fairer. Please. Really. Go right ahead.
But it’s laughable to think this divided Congress would take on that task. And of course Roberts knows that. For all practical purposes, Tuesday’s decision means the end of Section 5. That means unfair voting rules just got much harder to stop.
What’s the point? What were they thinking? Heather Gerken, a law professor at Yale, suggests they weren’t looking at history:
The brutal attacks on civil rights marchers crossing the Edmund Pettus Bridge provided the push needed to pass the Voting Rights Act. When the Voting Rights Act passed in 1965, almost no African-Americans were registered to vote in the Deep South due to brutal repression and sickening legal chicanery. Civil rights litigators and the Department of Justice were doing their best to help. They filed lawsuit after lawsuit to make it possible for blacks to register. But every time a court deemed one discriminatory practice illegal, local officials would switch to another. Literacy tests, poll taxes, burdensome registration requirements – these techniques were all used to prevent African-Americans from voting. Southern voting registrars would even resign from their positions as soon as a lawsuit was on the cusp of succeeding, thereby sending the case back to square one. The Voting Rights Act aimed to change all of this.
Section 5 was the most important and imaginative provision in the law. It required certain states and jurisdictions, mostly in the South, to ask the federal government’s permission before making any change – no matter how small – in the way they run elections. Until a rule was “precleared,” it could not go into effect. This unusual provision solved the central problem of voting-rights enforcement during the civil rights era – keeping up with the increasingly creative strategies recalcitrant state and local governments used to disenfranchise voters. Section 5 shifted the burden of inertia, allowing the Department of Justice to get one step ahead of local officials.
And it worked. And now it’s been taken away:
Roberts left open the possibility that Congress could make a different record and start over, thereby bringing Section 5 to life again. Almost no one thinks that’s going to happen. Section 5 is dead. Congress may or may not pass something in its place, but it will look nothing like what existed at 9:59 this morning, before the Court handed down its opinion. And part of me just wants to mourn that fact. …
If this were the usual case, I would be telling you that Section 5 was important for this and not that, that the court has to be right that the 1960s coverage formula couldn’t last forever, that Congress should have done more to fix what everyone knew would be a sticking point with the court. I would be giving you concrete examples of where Section 5′s absence will matter going forward. … If this were the usual case, it wouldn’t bother me that this issue will be pushed off the front page tomorrow by the next round of Supreme Court blockbusters.
But for now – for just one moment – a bit of simple mourning is in order. … People fought and died for this one.
Maybe they’ll have to fight and die again. The Fifteenth Amendment was ratified on February 3, 1870, providing that “the right of United States citizens to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude” – and it was the Voting Rights Act of 1965 after all – so these things take time. Yes, Republicans are off the hook now – they can thin out the electorate all they want now. They’ll win a lot of elections – but no one’s ever off the hook, really. Remember that final exam that was cancelled? It wasn’t cancelled. It was rescheduled.