By Laslo Boyd
In the alternative universe in which Chief Justice John Roberts and his four friends on the Court reside, corporations are people and there is no need to be concerned with states discriminating on the basis of race with respect to voting.
Voting is the very essence of a democratic system and this country’s history, up to and including the present, is filled with examples of official efforts to try to win elections by disenfranchising some group of voters. It’s no accident that the largest number of amendments since the Bill of Rights has focused on removing obstacles to voting based on race, gender, and age.
Sadly, the first of those amendments, the 15th, which banned discrimination in voting based on race, had little impact for the first century after its adoption as part of the U.S. Constitution. It was only with the passage of the 1965 Voting Rights Act, arguably the keystone of the Civil Rights movement, that real change began to occur.
The success of that legislation may well have been the highpoint of President Lyndon Johnson’s incredible career, but many others were critical to its success as well. One of those was Clarence Mitchell, Jr. of Maryland, the lobbyist for the NAACP, who was often referred to as the 101st senator.
Since its original enactment in 1965, Congress has reauthorized the bill on four separate occasions, the most recent in 2006 when Republicans controlled both houses of Congress as well as the Presidency.
As Chief Justice Roberts pointed out in his decision, significant progress has been made since 1965 in terms of both voter registration and participation and in the number of African-Americans elected to public office. For Roberts, that success is a reason to get rid of the key enforcement mechanism in the law and to, in effect, make it toothless.
Yet, as Justice Ruth Bader Ginsburg points out in her dissent, there have been more than 700 instances since 2006 in which the Justice Department has turned down a request for a change in voting procedures on the grounds that it would be discriminatory. The outcomes have improved because of the provisions of the 1965 Voting Rights Act, not because the United States is now a post-racial society in which no one wants to discriminate on the basis of race.
Poll taxes and literacy tests are no longer the tools of choice, but they have been replaced by what the decision refers to as second-generation approaches. In 2012, a number of states, including Maryland’s neighbors to the west and north, Virginia and Pennsylvania, attempted to institute photo identification requirements. While theoretically neutral in terms of their impact, analysis consistently showed that the disproportionate impact was on minorities and the poor.
Other states have moved polling places, changed hours of voting, reduced early voting, and drawn legislative district lines to reduce the electoral impact of minorities. In the immediate aftermath of Tuesday’s decision, a number of election officials in states no longer required to get Justice Department preapproval announced that they would be moving ahead with changes that would not have been approved otherwise.
For a state that is home to the NAACP, and where many fought on the front lines of the nation’s biggest civil rights battles, this decision must feel like a terrible blow.
Fortunately for Marylanders, the state’s leadership has been working to open up voting to more people, not fewer, in some of its recent actions, particularly through the General Assembly’s decision to permit early voting and establish a growing number of early voting locations.
The majority decision in Shelby County v. Holder displays a remarkable indifference to American history and to the fundamental values embedded in the Constitution. Rather, it provides a technical rationale, based on references to state sovereignty, that treats voting as just another topic instead of the foundation of democracy.
But there is still another inexplicable, or perhaps hypocritical, element to John Roberts’ decision. The Chief Justice, who famously referred during his confirmation hearing to his approach as that of a umpire, has engaged in the most extreme form of judicial activism imaginable.
Conservatives have longed fostered the myth that they oppose activism by judges as a form of usurpation of legislative authority. The reality, of course, is that they only feel that way when it is a decision that they disagree with substantively.
Roberts dismissed the hearings and review that went with the 2006 reauthorization as inadequate and not sufficiently taking account of changes that had occurred in the country since 1965. His reasoning is a classic example of Roberts substituting his judgment for that of Congress, a process that he and fellow conservatives have severely criticized in the past.
Both house of Congress passed the reauthorization by overwhelming majorities after months of hearings. That Roberts finds their efforts not up to his standards is a stunning display of judicial arrogance and one that I look forward to hearing attacked by the stalwart defenders of the Constitution on talk radio and cable television.
Tuesday was indeed a sad day for democracy and civil rights in this country. Expecting this Congress to approve a legislative remedy is unimaginable. The only solution is at the ballot box and that will take many elections, but the issue is too important to ignore.
Laslo Boyd writes and consults about public policy, government, and politics. He is a regulator contributor to Center Maryland. His email is firstname.lastname@example.org.
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