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SCOTUS Overturns 1965 Voting Rights Preclearance

By David King Published: June 26, 2013

Anyone who reads this blog knows that I abhor discriminatory government policies. I believe any law the government enacts should apply equally to everyone. It's called Equal Protection under the law, and as I mentioned in my last post, the words "Equal Justice Under The Law" are engraved on the Supreme Court building. Equal Protection explains my views on a range of issues - It's why I believe gay marriage should be legal. It's why I think Affirmative Action policies should be discontinued. It's why I consider our highly discriminatory tax code to be a bad joke.

The preclearance provision in the 1965 Voting Rights Act requires mainly southern states to obtain approval from the Justice Dept. prior to changing it's voting practices. The preclearance provision prohibits:

"Any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting that has the purpose of or will have the effect of diminishing the ability of any citizens of the United States on account of race or color"

There's nothing inherently discriminatory in the above provision as written. In fact, it's intent was to PREVENT the voting discrimination against blacks that was prevalent in some southern states back in the old days of Jim Crow laws. Many southern states have argued recently, however, that preclearance singles them out, and is discriminatory against them in practice.

Yesterday, the Supreme Court, in a 5-4 split decision along ideological lines, overturned decades of precedent upholding preclearance and struck it down. The conservative wing of the Court voted to strike down preclearance. The liberal wing of the Court voted to uphold it.

When I say the Court "struck down" preclearance, that is not entirely accurate. The Court actually ruled that current preclearance standards no longer apply, and placed the burden on Congress to enact new standards. Chief Justice John Roberts, ruling for the majority, wrote that preclearance was necessary when enacted, but that "history did not end in 1965". Roberts is saying the Jim Crow era is long gone, and the old preclearance standards should be gone too, as they intrude on the sovereignty of states.

While the southern states primarily affected by preclearance see this as a victory for states rights, the Obama administration and other liberal groups see it as a major setback for voting rights. Here's President Obama, who said he was "deeply disappointed" with the decision:

"Today's decision invalidating one of its core provisions upsets decades of well-established practices that help make sure voting is fair, especially in places where voting discrimination has been historically prevalent".

Obama is certainly correct from a historical perspective, but are any states trying to prevent minorities from voting today ? Is there a neo-Jim Crow, so to speak ? I heard many liberals complain that Voter ID laws were discriminatory in the runup to the 2012 presidential elections, but those claims were specious, in my opinion, and the 2012 voting statistics bear my opinion out. Blacks voted in record numbers in the 2012 election, and for the first time in history, a higher percentage of blacks voted than did whites.

This excerpt from the Wall Street Journal illustrates Justice Roberts' point about how much things have changed since the old days:

In 1965, Chief Justice Roberts wrote, the formula made sense. In Mississippi, for instance, 69.9% of whites were registered to vote, compared to 6.7% of blacks. In 2004, by contrast, black registration in Mississippi actually exceeded that of whites, 76.1% compared to 72.3%.

He observed that Philadelphia, Miss., where civil-rights workers James Chaney, Andrew Goodman and Michael Schwerner were murdered in 1964, and Selma, Ala., where "Bloody Sunday" saw police beat voting-rights marchers in 1965, both have African-American mayors today.

While the Voting Rights Act was "immensely successful at redressing racial discrimination and integrating the voting process," it had done so by undermining "the integrity, dignity, and residual sovereignty of the States," the chief justice wrote.

"States must beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own," he said.

Justice Ruth Bader Ginsburg, writing the minority dissent opinion, made the opposite points:

"Justices [Stephen] Breyer, [Sonia] Sotomayor, [Elena] Kagan and I are of the view that Congress' decision to renew the act and keep the coverage formula was an altogether rational means to serve the end of achieving what was once the subject of a dream: the equal citizenship stature of all in our polity, a voice to every voter in our democracy undiluted by race," she said.

Between 1982 and 2006, the Justice Department "blocked over 700 voting changes based on a determination that the changes were discriminatory," she wrote. That was enough to show that covered jurisdictions were still targeting minority voters—and suggested that the numbers would be worse without the deterrent effect of the preclearance requirement, she said.

I see the points on both sides of this issue. Does preclearance today have the defacto effect of discriminating against southern states rights, or does preclearance still prevent voter discrimination ? I have mixed feeling about this ruling, but I will say this. Striking down preclearance doesn't nullify the remainder of the Voting Rights Act. Even without the old preclearance standards, the Voting Rights Act still prohibits discriminatory voting practices across the nation. The Justice Dept. can still bring lawsuits against any state that engages in discriminatory practices. In addition, the federal government can act for partisan reasons to affect voting rights too. It's not only the states. For example, Obama's Attorney General, Eric Holder, repeatedly tried to block Voter ID laws, as he did in Texas, South Carolina, and other states. Holder even went so far as to call Voter ID laws a "poll tax", stoking racial fires where they did not exist. Not even the Ninth Circuit Court Of Appeals, which is considered the most liberal Court in the nation, bought Holder's frivolous poll tax argument. What protects the states against people like Eric Holder ? It cuts both ways.

I'm interested to hear other opinions on this matter, because I'm still thinking it through.

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