Tuesday, September 6, 2016

Awakening an Insidious Evil: Why Trump Has Made a Farce of the SCOTUS Ruling on Voting Rights Act

by Nomad

Three years ago, the Chief Justice of the Supreme Court declared that times had changed when it came to race and voter discrimination. Justice Roberts hadn't counted on the cynical tactics of Donald Trump.



On 24 June 2013, in the case of Shelby County, Alabama b. US Attorney General Holder   the Supreme Court struck down one of the key provisions of the Voting Rights Act of 1965. The following day, the "deeply disappointed" President Obama issued a statement in which he called the ruling "a setback" but not the end of efforts to eliminate voting discrimination.

This landmark Civil Rights Era legislation was instrumental in ensuring that discriminatory practices based on race were finally and completely abolished. One problem that had faced legislators and justices was the question of states rights vs. federal authority. 
The 1965 legislation ended that. After the enactment of the law, certain states, mostly in the South, were required to submit any election law changes for federal approval. 
The reason was basic. 
Free and fair elections were too important to be left to whims of the local governments which, minorities claimed, was infested with both open and covert racists. On those states, federal oversight was required to ensure fair elections.

The 2013 decision split the high court along ideological lines, five to four.  The New York Times reported:
At the core of the disagreement was whether racial minorities continued to face barriers to voting in states with a history of discrimination.
Conservatives on the Supreme Court said that the need to maintain strict federal oversight was in 2013 a thing of the past. 

In the Words of Justice Roberts

Chief Justice John G. Roberts Jr. who wrote for the majority explained that our country had changed. When the Voting Rights Act was enacted, attitudes on racial discrimination were very different.  The chief justice concluded that 
times have changed: the formulas that govern singling out one state from another for different treatment, which once "made sense," have lost their relevance, and "nearly 50 years later, things have changed dramatically."

The majority report stated that at the time, the law  which Roberts called "the exercise of the unprecedented authority" made sense.  The conservative justice called the provisions of the Voting Right Act "an extraordinary measure to address an extraordinary problem." 
In his opinion, and in the opinion of the majority of the court, the original problem that created the need for "extraordinary measures" such no longer existed.
“Today’s statistics" Roberts explained."tell an entirely different story.”


The remedy to any residual voter discrimination in these states, the court had decided, must  be one that speaks to current conditions and not of 1965. 

In fact, the Voting Rights Act has been continually re-authorized since that time and as recently as 2006 under President Bush. Upon signing that reauthorization, President Bush said:
In four decades since the Voting Rights Act was first passed, we've made progress toward equality, yet the work for a more perfect union is never ending. We'll continue to build on the legal equality won by the civil rights movement to help ensure that every person enjoys the opportunity that this great land of liberty offers...Today, we renew a bill that helped bring a community on the margins into the life of American democracy. My administration will vigorously enforce the provisions of this law, and we will defend it in court.
Chief Justice Roberts, backed by other conservative members,  did not share in that desire for vigorous enforcement.  He suggested that those rules (which applied to only nine States and several additional counties) had outlived their usefulness.
The federal courts, he said, no longer had a constitutional mandate to impose special requirements on particular states regarding voting discrimination.

From now on, no prior approval was necessary and any changes to present voting practices would now be subject only to after-the-fact litigation on a local and federal court level.

In her dissenting opinion, Justice Ruth Joan Bader Ginsburg warned that the court's decision would send exactly the wrong message. and a continuance of the Voting Act- as written- would guard against back­ sliding. She warned the conservative justices that "the prospect of retrogression was real."

The provision struck down by the 2013 decision, Ginsburg noted was "a remedy Congress designed both to catch discrimination before it causes harm and to guard against a return to old ways."
Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.
She had a point. 
A recent MSNBC article cited a study which demonstrated that, despite Robert's claim, voter discrimination was still very much a problem in those states and counties  covered by the Act.
Ninety percent of the voter discrimination lawsuits that resulted in a win for minorities were found in those counties covered by the Voting Rights Act. That strongly implied that the Voting Rights Act was not at all obsolete. 

In removing the federal oversight, the SCOTUS had opened the door for a return to the "good old days" when southern states believed they could control the outcomes of elections through the use of racially discriminatory laws.

Almost immediately, the fears of civil rights groups were realized when several southern states (and outside the south too) enacted restrictive voting laws that had been on hold until the Shelby ruling.
One such law, Texas’s voter ID measure, was found by a federal judge last year to be intentionally discriminatory against minorities, but remains in place thanks to the Supreme Court. And numerous local jurisdictions have made changes to their election rules that, voting rights advocates say, have reduced minority political power.
This summer, the federal courts ruled on challenges to voter ID laws in OhioTexasNorth Carolina and Wisconsin. For the most part, the federal court found that states had not justified the need for such laws. The North Carolina law was overturned by the federal appeals court, which ruled that the state's voter ID laws "deliberately targeted African-Americans,.in an effort to depress black turnout at the polls."

In each case, these federal court decisions are expected to be appealed and to pass up to the Supreme Court. All lower court rulings will in all likelihood remain in effect until after the election.

In the last week, the Supreme Court has refused to review the North Carolina law, effectively rendering the law null and void. Had the Voter Rights Act  with its system of periodic reviews and re-authorizations been kept intact, all of this could easily have been avoided. 

Returning to the "Good Old Days"

In hindsight, Justice Roberts' glib proclamation that attitudes in America have changed  was extremely short-sighted.
It is true that the majority of Americans would reject attempts to rig elections to favor the white vote. However, it is also true that in the hands of a skillful manipulator the racism- in the form of white resentment- has proved to be time and time again a very useful tool.
That's exactly the situation America faces in the 2016 election. The rise of Donald Trump has all but proved that Roberts was dead wrong. 

GOP nominee Trump has demonstrated that in some parts of the country, attitudes on race have not evolved since 1965. For some Americans, the time before the Civil Rights Era was the good old days and they are desperate to take America back to that time.  

Even though Trump has claimed (by his own estimation) to be “the least racist person that you have ever met,”  the leaders of white supremacist groups have long learned to recognize a compatriot when they see one.

Mark Potok, a senior fellow at the Southern Poverty Law Center, said in an interview that even though Trump has more or less repudiated these groups, the organizations are backing him none the less.

David Duke, the white nationalist, and former Ku Klux Klan Grand Wizard, encouraged his radio show listeners to vote and Trump. He also urged them to volunteer for Trump’s campaign. At the Trump campaign offices, Duke told his followers, they would find "the same kind of mindset."

Looking back at quotes Duke has made over the years leaves little doubt what kind of mindset he and his followers appreciate. Duke said in 1975 that white people didn't need rape laws, only black "bucks" because, Duke said, "niggers are basically primitive animals."
His racism was not limited to African Americans. In an interview in March 1985, Duke made jokes about the number of Holocaust survivors, saying "Nazis sure were inefficient," He dismissed the deaths of millions of Jews as "preposterous stories that anybody can check out to be a lie, an absolute lie."

So is this the mindset that can be found in Trump campaign offices? 
Probably not. 
Things are a bit more subtle than that nowadays. In 2006, Duke began to sound much more like Donald Trump today. The former leader of the KKK said:
I don't consider myself a racist, I don't hate other peoples, but I certainly want to preserve my own. And I think that's true of all people.
According to Potok, we shouldn't dismiss Duke as part of the lunatic fringe too quickly. The former KKK leader's backing carries a lot of weight in white supremacist circles.
“David Duke is the most important self described white nationalist intellectual out there today, and what he says is still very influential.”
Scott Shepherd, a former Grand Dragon of the Ku Klux Klan, compared Duke's past political campaigns and Trump's race for the White House.
He said, except for Trump's views on Israel:

“Their campaigns are pretty much parallel when I look at it,”
After being one of the KKK's regional leaders, Shepherd has become one of America's most ferocious anti-racism campaigners, He has made it his life's mission to defeat the creed of racism that was once the main fixture of his life.

White supremacists, Shephard explained, see a kindred spirit in Trump.explained:
“They all feel like they’ve not been given a fair handshake, and that their rights have been taken and priority has been given to people of color,”
This resentment has been at the core of the Trump's campaign for president and it is also why his outreach to the African- American community has been such a dismal failure. 

True, a candidate cannot be blamed when an extremist organization decides to back him or her. In Trump's case, his critics claim, the candidate has sent ambiguous messages.
As one source notes:
Trump’s habit of retweeting messages posted by white supremacists, sharing them with his 6.4 million Twitter followers, hasn’t helped matters.
Whether it is the Russian leader or the North Korean, Trump clearly loves to be loved and over-the-top flattery piled on with a shovel- from whatever source- is the key to earning Trump's kind of respect.
He isn't particularly concerned with the source of that affection and therein lies the danger. He is, whether he knows it or not, sanctioning the views of racist organizations.  

Voter Intimidation and the Consent Decree 

Given the enthusiastic support of white supremacists, Trump's recent remarks about election rigging at his rallies  are ominous. 

He has repeatedly called upon  his supporters to monitor the polls on Election Day, and said that voting locations should “have the sheriffs and the police chiefs and everybody watching.” 
While independent bi-partisan election monitoring in and of itself, might be a good thing, Trump doesn't appear to be talking about that.

Civil rights groups say this could easily constitute a form of voter intimidation, especially if his supporters come to election stations, exercising their second amendment rights.  
"To be clear, liberals love to throw out the voter intimidation card."
As Miller knows, this isn't a matter of liberal and conservative. He should/must be aware that there's a very serious problem with Trump's plan. 
It's illegal and has been for decades.

The Washington Post pointed out that in 1981, the Republican Party attempted to do something very similar.
The Democrats sued, and in 1982, the two parties agreed to a system under which the Republican National Committee agreed to refrain from a number of tactics that could be used to intimidate voters. That consent decree, as it is called, has been modified a number of times, often in response to efforts to challenge the ability of Democratic voters to vote, occasionally targeting black voters specifically.
Significantly, the fifth provision in the consent decree, Part E, prohibits the Republican party from
"undertaking any ballot security activities in polling places or election districts where the racial or ethnic composition of such districts is a factor in the decision to conduct, or the actual conduct of, such activities there and where a purpose or significant effect of such activities is to deter qualified voters from voting."
While some might say this prohibition applies to the Republican National Committee (RNC) alone and they claim that the consent decree only applied to the RNC, its agents, servants, and employees ‘whether acting directly or indirectly through other party committees.”

It's a fairly a specious defense. The moment the RNC officially nominated Trump as their only presidential candidate, Trump was  no longer simply a candidate calling himself a Republican, but an "agent" of the Republican Party.
The RNC cannot now distance itself from the candidate. 

Professor of Law and Political Science  at the University of California, Irvine, Richard L. Hasen provides more detail on the consent degree. It specifically said the RNC could not 
engage in ballot security efforts (later defined in 1987 as “ballot integrity, ballot security or other efforts to prevent or remedy vote fraud,” according to the U.S. Court of Appeals for the Third Circuit opinion), especially in areas where racial or ethnic makeup could be considered a reason for the activities.

Coincidental Timing?

Interestingly, in late 2008, the consent decree that limits the national GOP's ability to challenge voters' eligibility at the polls. had come under scrutiny.
The Democratic National Committee (DNC) and Obama for America claimed that RNC had violated the consent decree  and demanded the court's attention in upholding the status quo that had been in effect for three decades.

The RNC's response? 
The lawyers for the RNC refused to back down. They asked the federal court to vacate or substantially modify the decree altogether.
Times had changed, they argued, and the consent decree was obsolete. To put it another way, when the RNC was caught violating the decree, it boldly petitioned the courts to abolish the law.
That takes a lot of chutzpah.

The federal court was not impressed with the Republican arguments and denied the RNC's motion to vacate the consent decree and ordered the decree remain in effect until December 2017.

Dismayed, the RNC then appealed the case to the SCOTUS, in the hopes the conservative justices would take a different view. Those hopes were again dashed however when, in 2013, the Supreme Court declined the RNC's request to lift consent decree.

All this took place at the same time the high court was listening to arguments on the Voter Rights Act of 1965. As we now see, the RNC needn't have been too despondent about the consent decree ruling. 
The conservative Supreme Court justices, instead, offered the RNC a shiny golden egg- the gutting of the Voter Rights Act only a few months later.
*   *   *
On cue, red states across the country implemented new laws to address the non-existent problem of voter fraud. Critics charged that voter ID laws were actually a means to reduce the impact of the minority vote. 
In a report entitled "The Truth About Voter Fraud" the Brennan Center for Justice at NYU School of Law most allegations of fraud turn out to be baseless — and that of the few allegations remaining, most reveal election irregularities and other forms of election misconduct. When there was fraud, in other words, it had nothing to do with voter identification.

The AFL-CIO, the federation of labor unions, attempted to dispel the false information promoted by red-state legislators about the need for Voter ID laws. One of the most pernicious myths is the idea that such laws do not disenfranchise particular voting populations. That's simply not true.
Among African-American voting-age citizens, 25 percent do not have a current government-issued photo ID, compared with 8 percent of white voting-age citizens. At least 15 percent of voting-age citizens earning less than $35,000 per year do not have a valid government-issued photo ID. About 18 percent of citizens ages 18 to 24 do not have photo ID with current address and name. In some states, student IDs issued by colleges and universities don’t fit the laws’ strict and burdensome requirements. 
Not only do they discriminate against minorities, that is probably the reason they were enacted in the first place.
These laws were, not surprisingly, challenged in court. The federal courts were forced to review and rule on the respective laws, state by state, district by district.
An expensive and a time-consuming task.   

The outcome wasn't what the Republicans had expected. 
The plan might have been to have the Supreme Court make a comprehensive ruling on all Voter ID laws across the country. However, when conservative justice Antonin Scalia died and conservatives lost their arch supporter in SCOTUS, things went awry. At the moment, the SCOTUS had taken the policy of not interfering with the lower courts original decisions. 

Ultimately the plethora of illegitimate voter ID laws wasted a great deal of time and money that taxpayers could not afford.
Perhaps more importantly, the move has also divided the communities along both ideological and racial lines.

"I Am Your Voice"

Things have gone from bad to worse. The Republican Party's last hope in countering the increasingly powerful African-American vote is personified in their nominee Donald Trump. A man whose background on race relations is, at the very least, questionable. His so-called outreach to minority voters was rightly dismissed as the worst form of campaigning. Both disingenuous and cynical.

In July, The New Republic did not mince words when it came to the corrosive effect Trump has had on race relations. 
Trump has already awakened and sanctioned a kind of latent social disorder among his supporters, many of whom harbored racist sentiments silently or privately, but who now feel emboldened to act upon their views in public: in classrooms; at cash registers, and kiosks around the country.
The article also quoted Rutgers University political science professor Brittany Stalsburg
“Trump has energized these groups by igniting their hate and making the use of bigoted speech more normalized, if not more acceptable.”
If Trump supporters think they no longer have a voice, it might just be because the rest of the nation has evolved beyond the days when African-Americans were considered an inferior type of US citizen with very limited rights.

Giving un-American ideas a voice on the national stage is nothing to be proud of. It is, in fact, dangerous. However, it also goes a long way in explaining the appeal of Trump's attacks on "political correctness" which outside of Trump's world, is merely thought of as respectful tolerance.

Ultimately Trump has made a mockery of Justice Robert's conviction that things are very different today. Attitudes about race are not, Roberts assured us, are not as problematic and divisive as they were in 1965. 
A lot of people- white people- might agree with that assessment. A lot of white people agreed with the 1857 Dred Scott decision too.

However, the majority of African-Americans (and on the left) would say that the situation is, in some ways, worse. In 1965, the high court's position was, at least, clear and apparently impartial. In 1965, we didn't have a presidential nominee openly courting hate groups or a candidate openly defying the voter intimidation laws. 
*   *   * 
When the Voting Rights Act was enacted, Chıef Justıce Warren's  position on "blight of racial discrimination in voting" was unambiguous. It was, the court ruled,  “an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.”

Today, in this election, we are witnessing a candidate who in many ways embodies that pervasive evil and has convinced a surprisingly large percentage of the American voters that he will represent all Americans ...not just the angry white extremists.

November will show us whether or not he has pulled off this remarkable feat of political manipulation.
God help the nation if he has managed it. 


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