Hypocrisy on the High Court

Discrimination is alive and well in America’s voting booths — and the US Supreme Court is doing its best to keep it that way.

More than half of US states either have or are pursuing voter ID laws that are likely to disenfranchise low-income voters — mostly black and Latino voters — while others are moving to require citizenship documents, shorten early voting times, limit voter registration or reduce the number of voting places available.

Nearly all of these efforts, which proponents say will cut down on voter fraud (which already is virtually nonexistent), according to the ACLU, “collectively lead to significant burdens for eligible voters trying to exercise their most fundamental constitutional rights.”

Unfortunately, this recent, and ongoing, record of voter suppression was not enough to sway a US Supreme Court composed of majority of conservative activists. The court in June overturned a key component of the Voting Rights Act, the very legislation designed to ensure that voters are not subjected to undue burdens or discriminatory actions.

The majority overturned a key section of the legislation, one that helped determine which states and jurisdictions were subject to the 49-year-old law’s “preclearance requirement.” The decision — when coupled with a conservative Congress — effectively overturns the law and leaves voters vulnerable to the whims of politics. The five conservative justices tossed out Section 4, which contains the formula used to choose “which states must receive preclearance from the Justice Department or a federal court in Washington before they make minor changes to voting procedures, like relocating a polling place, or major ones, like redrawing electoral districts,” according to the New York Times.

Chief Justice John Roberts wrote (quoted by the Times) that Section 4 is “based on 40-year-old facts having no relationship to the present day.”

“Congress — if it is to divide the states — must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions,” he wrote. “It cannot simply rely on the past.”

The logic here is somewhat selective. While Section 4 itself was last updated by Congress in 1975, the overall act was most recently approved by Congress — with large majorities — and signed by President Bush in 2006. What this means is that Congress, the body charged with fact-finding as part of its law-drafting responsibilities, found the 1975 schema to still be valid and effective.

As the Times points out in an editorial, it was a “damaging and intellectually dishonest ruling.” The court, the Times writes, “eviscerated enforcement of the Voting Rights Act, in which Congress kept the Constitution’s promise of a vote for every citizen,” without bothering to “rule on the constitutional validity of the idea that some places have such strong records of discrimination that they must seek federal approval before they may change their voting rules.”

“Instead, the 5-4 ruling usurped Congress’s power and struck down the formula that Congress has repeatedly reauthorized to determine which states fall into that category,” the paper writes. The court, instead, offered Congress a chance to take a new bite at the apple — something the court knows is politically impossible. Congress, as the Times points out, “refused to expand the coverage formula in 2006” — and the House has only gotten more conservative over the last seven years making it “extremely unlikely to take up the offer now.”

That means the “Invidious and pervasive voting discrimination” — to use the Times’ description — will remain in place, which is exactly what the Republicans who run states that have stepped up voter purges and voter ID laws are counting on. They need them to offset shifting demographics that are likely to imperil their hold on power.

The point is that the Roberts court ruling was the height of hypocrisy. The court, in overruling Congress and the president, has done what conservatives have criticized prior courts with liberal majorities of doing — writing law. This is, to use the conservative phrase, a case of judicial activism.

Roberts promised during his confirmation hearings to be an impartial umpire — to do nothing more than call balls and strikes. He wasn’t going to redraw the strike zone. That he did does not bode well for the future of equal treatment for every American.

Hank Kalet is a poet and journalist in New Jersey. Email; blog; Twitter @newspoet41.

From The Progressive Populist, August 1, 2013

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