With the ruling --or the non-ruling-- on California's Prop 8, I am left wondering if the victory being celebrated isn't a hollow one. The appellants were told they had no standing as private citizens to appeal on behalf of their state's constitutionally enacted law. The state's constitutional officers had elected not to appeal--that was that. The practical effect in this particular case may be laudable, but is it so hard to imagine a case where a governor and a state attorney general act, or fail to act, counter to the people's rights and interests? Where this case might serve as a less than healthy precedent? Reading history, I think not.
Just as I fear some of the cheering for the court's rulings on marriage rights may be over loud, I also believe at least some of the anguish being expressed over the Voting Rights Act may be somewhat overstated. At the very least it is in the power of the American people to find a silver lining in this dark cloud of an opinion.
The VRA, passed nearly fifty years ago, can really be seen as something of an answer to the abuses and injustices that the Slaughter House Cases and The Colfax Case had so unfortunately enabled. States where the notion of state sovereignty had taken on the aspect of a white hood and a burning cross were confronted with federal law actively affirming --and enabled to enforce-- the constitutional rights of citizenship --not the least of these, voting rights
"Pre-clearance" was the issue at point in the recent Roberts' Court decision. Particular states where past abuses had been most egregious were singled out for special requirements of the law. Any change to voting requirements or accommodations had first to be cleared with the U.S. Justice Department. In striking down the pre-clearance requirements justice Roberts cited the last fifty years of progress over the prior hundred in abuse. With the law in place and working so effectively it seemed we no longer needed it. We have a New South, "(n)early 50 years later, things have changed dramatically." he said and the special scrutiny upon those singled out states was no longer equitable.
Justice Ginzberg compared the reasoning to abandoning an umbrella in a rainstorm --inasmuch as under the umbrella you're dry.
Don't get me wrong, there is plenty to be validly indignant about in the VRA decision of The Roberts Court. The same guys who profess that they are mere umpires calling balls and strikes for the lawmakers who define the batters box seem to have no problem with the fact that their discerning judgement on historical progress on civil rights in The South is counter to the opinion Congress had in renewing the pre-clearance provisions of the VRA as recently as 2006. But, just as what they didn't say bothers me with the marriage rights cases, here I take heart in what they did not strike down. For optimists and pessimists alike there is still something pretty important left in the cup. The court did not declare the entirety of the VRA unconstitutional, only the pre-clearance requirements as they were applied to some states and not all. As I think about that more and more, I take some comfort. The court did not say there is no place for federal oversight in Birmingham, Alabama or Colfax, Louisiana. It said there should be no more or less of that federal oversight and state accountability there than there ought to be right here in Boston, Massachusetts or outside Cleveland, Ohio. Thinking of our own Tom Finneran, I have to admit I'm almost okay with that.
It seems to me the court has left a decision to us in this case. It is up to us what we make of their opinions. Already, we're seeing states, where VRA Justice Department actions had previously counter ordered redistricting plans that disadvantage minority voters, dusting off the same old maps, testing the new/old limits of decency and democracy. It remains to be seen how the Obama Administration Justice Department will respond. We, the people can respond though, with a clear call for law and enforcement that protects the rights of every voter in every corner of this country. We can choose to wring our hands and see The VRA as "gutted" and rendered toothless. Or we can choose to see voting rights as a common cause for the entire country.
So it is I find myself urging against resigned despair on the one hand and cautioning against easy early celebration on the other. With marriage equality, just as it is with voting rights, it seems there's some American history yet to be written.
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