Meddling with the right to vote


    It has long been a tenet of the conservative faith that “activist unelected judges” are meddlesome creatures, that these robed elitists “legislate from the bench,” that they “trample the will of the people,” that they trump the wisdom of our legislative bodies with their autocratic decrees.

    But these days, with a landmark voting rights law hanging in the balance, a law that effectively polices racial discrimination at the ballot box, conservatives have engineered a classic flip flop. All of a sudden, they love unelected judges. They dearly hope that the five Republican appointees on the U. S. Supreme Court will trample the will of the people and trump Congress – which has repeatedly reauthorized the 1965 Voting Rights Act by overwhelming bipartisan margins.

    The key provision in that law is clearly imperiled, as evidenced by yesterday’s high court hearing. If the five Republican appointees throw it out, as is likely this spring, the Justice Department will no longer be able to put the kibosh on ballot discrimination in nine states, and in dozens of counties in other states, where ballot discrimination has long been practiced. Just last year, the Justice Department invoked the law’s key provision (known as Section 5) to vaporize several “voter ID” schemes that would have suppressed minority turnout.

    • WHYY thanks our sponsors — become a WHYY sponsor

    But if Justice oversight goes away – thanks to the current legal challenge mounted by the state of Alabama – vote suppression will be rewarded, and minorities will lose the civil rights protections that have been in place for nearly half a century. People turned away at the polls would have to file lawsuits, at their own expense, and only after the voter-suppression laws had already screwed them. That’s exactly how things worked before the landmark law was enacted in ’65.

    At the court hearing yesterday, Antonin Scalia predictably assailed Section 5, calling it a “perpetuation of racial entitlement.” I never realized that the right to vote was a “racial entitlement,” but, hey, that’s Scalia. More ominous were remarks by Anthony Kennedy and John Roberts, both of whom essentially declared that the feds no longer need to invoke Section 5 because, in their minds, ballot discrimination no longer exists in the targeted states and counties.

    Roberts’ hostility to the Voting Rights Act is not a surprise – as a young Reagan administration apparatchik, he wrote a string of legal memos attacking it – but it’s puzzling nonetheless that he would be so impervious to the realities of 2012. To cite just two examples, Texas Republicans enacted a voter ID law that disproportionately hurt minorities, and Florida Republicans tried to reduce early voting hours in ways that disproportionately hurt minorities – and the Justice Department blocked both efforts by invoking its Section 5 oversight power.

    But, to reiterate, what’s most striking is the conservatives’ sudden belief that a bipartisan act of Congress should be overthrown by five unelected judges. It just so happens that the Voting Rights Act, including its core oversight provision, has been renewed by Congress four times since 1965 – and, each time, by increasing margins of support. The last renewal occurred in 2006. The vote in the Republican House was 390-22; the vote in the Republican Senate was 98-0. And among all the lawmakers who hailed from the states and counties covered by the law, the vote in favor of renewal was 90-20.

    And the ’06 renewal was by no means pro forma. It was based on the factual evidence of persistent ballot discrimination – 15,000 pages of evidence. One lower-court federal judge recently looked at this evidence, and found what he called “overt hostility to black voting power by those who control the electoral process.” Which is why 488 of 510 lawmakers decided that the law was still necessary. After all, as Justice points out, the feds have used their oversight to block roughly 2,400 “discriminatory voting changes” since 1982, “400 of which involved cases with specific evidence of intentional discrimination.”

    Let’s review: Conservatives hostile to the Voting Rights Act have repeatedly failed to win in the political realm, they have failed to win over the people’s representatives because the factual evidence goes the other way….so their solution is to root for an overthrow by judicial fiat. Their newfound love for “unelected judges” is newsworthy, needless to say. It is also the quintessence of hypocrisy.


    Follow me on Twitter, @dickpolman1



    WHYY is your source for fact-based, in-depth journalism and information. As a nonprofit organization, we rely on financial support from readers like you. Please give today.

    Want a digest of WHYY’s programs, events & stories? Sign up for our weekly newsletter.

    Together we can reach 100% of WHYY’s fiscal year goal