and the Democrats have helped to make the case.
On Friday, the New York Times reported (see below) that the Supreme Court will rule on whether Congress had the right to extend the Voting Rights Act. Specifically, SCOTUS will decide the constitutionality of Congress's renewal of Section 5-- the Act's provision that certain states and municipalities get federal permission (called "preclearance") before making any changes that affect the voting by their residents.
The states concerned are mostly in the South, and all have had rich histories of electoral malfeasance, largely aimed at disenfranchising minority voters. The Southern states are Alabama, Georgia, Texas, Mississippi, South Carolina and Virginia; and the list also includes Arizona and Alaska.
It was in May of 2006 that Congress, then Republican-controlled, unanimously voted to extend the Voting Rights Act, removing none of its provisions. At the time that vote appeared to be a nice surprise, since some Republicans had wanted to renew the Act selectively. In fact, that overwhelming vote in favor of the Act was only "a facade," as Linda Greenhouse notes in her op-ed (below).
"They allowed the extension to pass," she writes, "on the assumption that the Supreme Court would eventually answer the question, relieving them of the political cost of dismantling an iconic statute."
So here we are. As both Greenhouse and Adam Liptak note, Chief Justice Roberts is not keen on efforts to protect minority voters; and so it's very possible that he and his extremist brethren on the Court will rule so as to void the Act's renewal. Thus they would continue with the radical assault on democratic governance that SCOTUS started, or intensified, with Bush v. Gore--which, of course, not only put Bush/Cheney in the White House, but also served to fortify the Court's own ultra-right plurality.
But we can't treat this new judicial threat to our democracy as an entirely rightist move, or blame this situation only on Bush/Cheney. Of course, the Senate Democrats did not mount any strong resistance to Bush/Cheney's choice of Roberts or Alito; but what we're facing now is based on a far larger abdication of responsibility--not just by nearly all the Democrats (our President-elect included), but by the press as well (and that, of course, includes the New York Times).
For both the Democratic Party and "the liberal media" have both refused even to note, much less investigate, the Bush regime's unprecedented program of election fraud and vote suppression; and that long silence has allowed the Bush Republicans to argue, with straight faces, that the only such wrongdoing has been perpetrated by the Democrats. Meanwhile, says Bush/Cheney's party, Jim Crow is a distant memory, since no-one is denied the right to vote on racial grounds, nor has that sort of thing occurred for many years.
It is on the basis of that crackpot argument that SCOTUS now intends to nullify the Voting Rights Act. The case that Roberts and his brethren have agreed to hear --Northwest Austin Municipal Utility District Number One v. Mukasey-- argues that there's simply no more need for those once-infamous localities to seek "preclearance" to make any changes in their voting rules. The lawsuit argues bluntly that "the times they have a-changed," that citizens throughout the land now cast their votes without impediment, and that it's therefore time for We the People to move on, without that onerous and shameful Section 5:
The America that has elected Barack Obama as its first African-American president is far different than when §5 was first enacted in 1965. Appellees barely acknowledge the deep-rooted societal change, preferring to assume that conditions remain similarly dire despite overwhelming evidence to the contrary. There is no warrant for continuing to presume that jurisdictions first identified four decades ago as needing extraordinary federal oversight through §5 remain uniformly incapable or unwilling to fulfill their obligations to faithfully protect the voting rights of all citizens in those parts of the country.
For anyone with even cursory knowledge of what's really happened in US elections since 2000, that argument is staggering. It is, in fact, as wild a misconstruction of the truth as any other ultra-rightist myth--e.g., that there's no scientific evidence of natural selection, or that "global warming" is a hoax, or that the Holocaust was all made up. And so it should
have been, quite literally, laughed out of court (even that court). But it was not--because the truth about US elections has been ignored, shrugged off and/or suppressed since Bush & Co.'s first stolen presidential race eight years ago. Thus both the Democratic Party and the press apparently believe that ultra-right canard, because they don't know, or don't want to know, what's really happened here.
An adequate rebuttal of that lie would take up far more space than I have here; and anyone who wants to know the truth can get it from the many books and articles and documentaries now readily available. Suffice it here to say that, while the lawsuit claims that things have universally improved since 1965, the evidence makes clear that, since 2000, things have gotten just as bad as they once were, or even worse--albeit voters black and brown
and red (and student voters of all colors) are now deprived of their essential civil right not through crude violence, as in Selma once upon a time, but through methods infinitely subtler, and far more efficient.
Here I am not referring only to those well-known hot-spots in the history of Bush/Cheney's own "elections," like Florida in 2000 and Ohio in 2004. Take Nov. 4, 2008--when America "elected Barack Obama as its first African-American president." On that day, the evidence suggests, millions of Obama's fellow-citizens--most of them black--were disenfranchised through those various non-violent tricks long since perfected by the Bush machine, and now used broadly on behalf of John McCain and Sarah Palin, Ted Stevens and John Sununu, as well as many other candidates who won (or "won").
Such mass disenfranchisement explains why this year's national turnout was,
according to a range of sources, actually no higher, or only slightly higher, than it was four years ago--notwithstanding the unprecedented spike in Democratic voter registration, Democratic turnout, and bipartisan enthusiasm for, or grudging acceptance of, the Democratic candidate. (Even more bizarre, the "record turnout" in Ohio was somehow lower than it was four years before, as the Columbus Dispatch reported with bemusement.)
The disenfranchisement also helps explain "Obama's negative coat-tails," with
other Democratic campaigns somehow gaining no advantage from his rise--
like (for example) Al Franken's Senate race in Minnesota, where Obama won
by twenty points, while Franken ended up in a dead heat with the incumbent,
Norm Coleman--who'd been lagging in the pre-election polls, while the exit
polls had Franken up by some 12 points. (On Nov. 7, AP reported that the Senate "undervotes" in Minnesota popped up mostly in those districts carried by Obama.)
And in 2008, the volume of phone calls to the national voter hotlines was as great as it had been four years before--or greater, as there were many more such hotlines up and running in this last election. (Indeed, Obama's victory was due in part to just such services, and to the vigilance of those who worked with them, and those who used them.) 1-866-OUR-VOTE, the largest of them all (run by the Election Protection Coalition), received 100,000 complaint calls by the morning of Nov. 3. Meanwhile, 1-800-MYVOTE1 (run by Voter Action) received 116,000 complaint calls throughout the weeks of early voting through Election Day, while CNN received over 40,000 complaint calls on Election Day itself; and thousands more were phoned in to the several other, smaller hotlines operating nationwide.
And yet, of course, the vast majority of those voters, or would-be voters, who were wrongly told that they weren't registered, or who had their votes flipped electronically, or who couldn't wait on line for hours, and so on--most of thwarted voters made no calls to hotlines. (And then there were those countless others whose votes were likely flipped, or just erased, without their seeing it.) For example, in DuPage County, Illinois--right in Obama's own back yard--election monitors collected affidavits from 350 people who, on Election Day, discovered that their names had been purged from the voter rolls, and who therefore either weren't allowed to vote or had to cast provisional ballots. "Only one of these citizens was Caucasian,"
reported Jean Kaczmarek, in an email, on Nov. 12. "We have brought this to the attention of the local media,"she added, "but, so far, nothing has been reported."
So it was in many states--including those named in the lawsuit now before the Supreme Court. According to that warped petition, "there is no warrant for continuing to presume" that the officials in those places "remain ... unwilling to fulfill their obligation to faithfully protect the voting rights of all citizens in those parts of the country." That otherworldly claim would come as news to all those Democrats who stood in line for hours throughout the South; or to those who saw their votes flipped in Texas, Mississippi and South Carolina (as well as West Virginia); or to those Democratic voters in Virginia (and Ohio, Florida, Pennsylvania and New Jersey) who reported frequent freezes, crashes and other problems with the e-voting machines.
That claim would also come as news to election monitors in Arizona--
especially in Maricopa County, where 15 out of every 100 voters had to cast
provisional ballots, and in Pima County (where two months before, election
monitor John Brakey was arrested when he tried to scrutinize the serial numbers on the bags of ballots cast in Arizona's primary). And then there is Alaska, where, amazingly, the turnout was reported as the lowest ever in the state, down by 11%--even with Sarah Palin on the ballot, while over 30,000
Democrats who'd voted for John Kerry didn't feel like voting for Barack
Obama (even though the Democrats had registered over 20,000 new voters,
and had organized the three largest political rallies in Alaska's history). And
then there was the startlingly strong showing of incumbent Senator Ted Stevens, who, despite his felony conviction and feeble showing in the pre-election polls, somehow maintained a constant lead (of roughly three to five thousand votes) throughout Election Night (and who was finally beaten only when they started to hand-count the absentee ballots).
And all of this amounts to a mere fraction of the evidence that this election
too was stolen--even though Barack Obama was indeed elected as our
"first African-American president." This election, first of all, was stolen from
him, insofar as his true victory margin was no doubt considerably larger than
we think--not just a "decisive victory" as the media (and he) have termed
it, but a landslide, which, if it had not been whittled down by electronic fraud
and vote suppression, would have made quite clear that Bush & Co.'s party
is dead meat. This election, secondly, was very likely stolen from a number
of Democratic challengers for several House and Senate seats. And yet
most important is the fact that this election too was stolen from those voters
--mostly African-American, like Obama--whose participation was
illegally (or "legally") pre-empted or annulled, so that they could not
participate in our self- government; and if they were wrongly disenfranchised,
our votes too mean that much less, however happy we may be about who "won."
If we really care about the voting rights of all our fellow-citizens, then it is not enough to cheer Obama's victory, which, historic though it is, counts for much less than the democracy which he is now about to lead. So if we really care about those rights of ours, we have to face the fact that this democracy is in the gravest danger still--supremely threatened not just by Bush/Cheney's party and their Court, but, no less, by the silence of the press, and of the Democrats, and of our President-elect. And so we have to break that silence now, or it will finish us at last, whichever party manages the show.
January 10, 2009
Supreme Court Takes Voting Rights Case
By ADAM LIPTAK
WASHINGTON - The Supreme Court announced on Friday that it would decide whether
Congress overstepped its constitutional authority in 2006 by extending a central provision of the Voting Rights Act of 1965.
The plaintiff in the case, a Texas municipal utility district, has argued that Congress did not take sufficient account of more than four decades of progress toward racial equality that culminated in the recent election of the nation's first black president.
The court's decision, expected by June, will help define the Roberts court. Chief Justice John G. Roberts Jr. opposed efforts to expand the voting rights law in 1982 as a young lawyer in the Reagan administration and has expressed skepticism on the court about racial classifications made by the government. The decision will also have significant practical consequences for elections in 16 states.
"This could be the biggest election-law case on the court's docket since Bush v. Gore," said Richard L. Hasen, a professor at Loyola Law School in Los Angeles.
The case concerns the requirement in Section 5 of the law that certain state and local governments, mostly in the South, must obtain permission, or "preclearance," from the Justice Department or a federal court before making changes that affect voting.
The requirement applies to all of nine states - Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia - and to scores of counties and municipalities in other states that Congress found had a history of discrimination at the polls.
Critics of the law call the preclearance requirement a unique federal intrusion on state sovereignty and a badge of shame for the affected jurisdictions that is no longer justified.
The preclearance requirement, originally set to expire in five years, was upheld by the Supreme Court in 1966 as a rational response to the often flagrantly lawless conduct of Southern officials intent on "perpetuating voting discrimination in the face of adverse federal court decrees."
Congress has repeatedly extended the requirement: for five years in 1970, seven years in 1975, and 25 years in 1982. Congress renewed the act in 2006 after holding extensive hearings on the persistence of racial discrimination at the polls, again extending the preclearance requirement for 25 years.
The lawsuit challenging the requirement was brought by a municipal utility district in Austin, Tex., established on undeveloped land there in the late 1980s. The district said it had never been accused of voting discrimination and should not be made to seek federal permission to, say, move the location of polling places or consolidate voting for its five-member board with the larger county ballot.
A special three-judge court here upheld the constitutionality of the preclearance requirement in May, saying Congress had acted reasonably in making the judgment that voting discrimination persisted.
The utility district argued to the Supreme Court that Congress had given insufficient weight to social and political changes since the civil rights era. It added that the applicable legal standards had changed since 1966.
There is no reason, the district's lawyers told the justices, to presume "that jurisdictions first identified four decades ago as needing extraordinary federal oversight" today remain "uniformly incapable or unwilling to fulfill their obligations to faithfully protect the voting rights of all citizens in those parts of the country."
In addition, the district argued, a 1997 Supreme Court decision, City of Boerne v. Flores, imposed a more demanding standard for deciding whether Congress exceeded its authority than mere rationality by requiring "congruence and proportionality" between the harm in question and the means used to prevent it.
The special court had ruled that the more relaxed level of scrutiny used by the Supreme Court to uphold the law in the 1966 case, South Carolina v. Katzenbach, should apply. But it added that the recent extension of the preclearance requirement passed the more demanding "congruence and proportionality" test, too.
The Supreme Court can avoid the larger issue in the new case, Northwest Austin Municipal Utility District Number One v. Mukasey, No. 08-322, if it chooses to accept the utility district's argument on a subsidiary point. The district says it should be entitled to relief under a provision in the voting rights law that allows political subdivisions with clean discrimination records for 10 years to "bail out" from the preclearance requirement with court approval.
The special court said the provision was available only to government units that register voters, and the utility district does not.
In November the Bush administration filed a brief defending the law that urged the Supreme Court to affirm the lower court's decision without further briefing and argument. (The Voting Rights Act contains unusual jurisdictional provisions, which account for the special lower court and which allow a direct appeal to the Supreme Court.)
The Supreme Court also agreed on Friday to hear three other cases, two of them involving the combustible issue of how the government treats racial and other minorities.
One of them, Ricci v. DeStefano, No. 07-1428, arose from a test given to firefighters who sought promotions in New Haven. White candidates passed the test at a much higher rate than minority candidates, and very few Hispanics and no blacks qualified for the available positions. A civil service board threw out the test, and no one was promoted.
A three-judge panel of the federal appeals court in New York rejected a lawsuit brought by white and Hispanic firefighters claiming race discrimination. The full appeals court, by a vote of 7 to 6, declined to hear the case.
Dissenting from that decision, Judge Jose A. Cabranes wrote that the case "presented a straightforward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?"
The court will also hear Horne v. Flores, No. 08-289, concerning whether lower courts were correct in ruling that Arizona is not spending enough money to help students there overcome language barriers.
Finally, the court agreed to hear Iraq v. Beaty, No. 07-1090, concerning whether people who were mistreated in Iraq under the government of Saddam Hussein may recover damages from the nation's current government. The Justice Department had urged the court to hear the case and rule that the current government of Iraq enjoyed sovereign immunity from such claims.
The Chief Justice on the Spot
By LINDA GREENHOUSE
Published: January 8, 2009
A CASE sitting quietly in the Supreme Court's in-basket promises to tell us more than almost any other about John G. Roberts Jr. and his evolution from spear carrier in the Reagan revolution to chief justice of the United States - and in the process set the direction of the debate over race and politics for years to come.
The question is whether Congress acted within its constitutional authority two years ago when it extended a central provision of the Voting Rights Act of 1965 for 25 years. An appeal challenging the act's reauthorized Section 5, a provision that requires certain states and localities to receive federal permission before making any change in election procedures, awaits the justices when they return today from a holiday recess.
On the surface, this case appears an unlikely judicial bellwether. Extending the life of the "preclearance" provision, considered one of the civil rights movement's crowning legislative accomplishments, is hardly novel. This was the fourth extension, in fact, and the second for a 25-year duration; the Supreme Court, which upheld the original Voting Rights Act in 1966, approved an earlier extension of Section 5 in 1980.
Nor does the issue appear fueled by the partisanship or ideological divisions that the current Supreme Court so often mirrors. The latest extension passed the Republican-controlled Congress overwhelmingly in 2006. President Bush promptly signed it into law, and a special panel of three federal judges upheld it last May.
Given all that, what about this case makes it a potentially defining moment for Chief Justice Roberts?
To answer that question requires seeing the appeal, Northwest Austin Municipal Utility District No. 1 v. Mukasey, for the politically charged case it really is. The seeming unanimity that greeted the extension of Section 5 in 2006 was a facade, masking deep divisions over whether to continue requiring all or parts of 16 states, most in the South, to receive Justice Department or federal court permission before moving a polling place or changing a registration deadline. Was a measure approved 40 years ago as a remedy for the suppression of minority votes still appropriate?
Many Republicans, most notably some Southern senators, thought not. But they allowed the extension to pass on the assumption that the Supreme Court would eventually answer the question, relieving them of the political cost of dismantling an iconic statute. Days after the extension became law, the anticipated legal challenge was filed by a well-connected Texas Republican lawyer representing what is surely one of the most obscure jurisdictions to be covered by Section 5, a sewer district that serves 3,500 residents of Travis County, Tex.
The Republicans understood recent trends at the court to be working in their favor, and they may be right. The case serves up to the court a fascinating brew of two of the most freighted issues in constitutional law, race and federalism - or, to put it another way, individual rights and constitutional structure.
The Roberts court has yet to come to rest on either, but this case will force it to do so: Voting Rights Act cases have a special provision that requires the Supreme Court to decide them. The court can't do what it does with 99 percent of the cases that reach it and simply deny review without comment. The chief justice will have to show his hand.
In cases dealing with race, he already has. "It is a sordid business, this divvying us up by race," he complained in a Texas redistricting case in 2006. The next year, he wrote an opinion rejecting a plan by which the school system in Louisville, Ky., sought to preserve the hard-won gains of integration by assigning students to schools based on race.
Because the Louisville schools had been released seven years earlier from decades of federal court supervision, the chief justice said the district no longer had the "compelling interest" that justified any use of race to keep the schools integrated. It was a position so extreme that Justice Anthony M. Kennedy, who is skeptical of all race-conscious government policies and agreed that the Louisville plan was unconstitutional, refused to sign the opinion.
The federalism issue at the core of the new case grows out of a series of cases from 1997 to 2003 in which the Rehnquist court applied a new level of scrutiny to Congressional action enforcing the guarantees of the Reconstruction amendments.
While previously Congress could do almost anything in the name of protecting individual rights, the new doctrine requires it to demonstrate a "congruence and proportionality" between violation and remedy. The appeal now before the court argues that the extension fails that test, given "the utter absence of any present-day pattern of unconstitutional voting-rights deprivations of the type Section 5 was originally designed to address." The measure's defenders argue in response that because the law serves to deter just such violations, the Texas sewer district is trying to blame Section 5 for its own success.
The Roberts court has not resumed the Rehnquist court's federalism battles, and the chief justice's own views are unclear. But he does not come as a novice to the debate over the Voting Rights Act. As a young lawyer in the Reagan Justice Department, he wrote sharply worded memos on behalf of the administration's failed effort to block expansion of the act in 1982. Confronted with his paper trail during his Supreme Court confirmation hearing in 2005, he explained that he was simply expressing the administration's views.
Perhaps. But equally telling may be words written by his predecessor as chief justice. William H. Rehnquist, then an associate justice, dissented from a decision that upheld an earlier extension of Section 5. The law "requires state and local governments to cede far more of their powers to the federal government than the Civil War amendments ever envisioned," Rehnquist wrote in April 1980. Months later, the 25-year-old John Roberts arrived at his chambers as a law clerk. A 25-year relationship as mentor and protégé ended only with Rehnquist's death days before his former law clerk was named to succeed him.
The new case, in other words, arrives at the intersection of John Roberts's past and the Supreme Court's future.
Linda Greenhouse, a former Supreme Court correspondent for The Times, is the author of "Becoming Justice Blackmun."