Wednesday, June 26, 2013

Rights going forward and backward, and why demography is not destiny for the Democratic Party

The contradictory Supreme Court decisions on marriage equality (affirming it) and on the Voting Rights Act (gutting it) bring to mind Arlo Guthrie's theory of history: "Some things don't change, you know. Some things do."

To which I would add the corollary, some major trends in the world get better at the same time others get worse; hopefully there will usually be more of the former.

Personally, I would prefer the notion that the workers will take over and establish a just and democratic society that eliminates exploitation and irrational discrimination. But that theory has also proven it has some kinks in it.

I'm more concerned about the implications of the gutting of the Voting Right Act (VRA) than I am happy about the overturning of the Defense of Marriage Act (DOMA) in the Windsor case, though the latter was a crummy, vindictive piece of legislation that never should have been passed and that President Clinton should have vetoed instead of using it to play his own bipartisan posturing game.

The PBS Newshour's report on the Shelby County decision against the VRA, High Court Strikes Down Key Provision of Voting Rights Act 06/25/2013:

But the gutting of the Voting Rights Act in the Shelby County case is also a loud warning to supporters of marriage equality on how fragile the Windsor win could turn out to be. One more Clarence Thomas or Antonin Scalia on the Court could flip the result. Check out Scalia's ranting, crassly ideological dissent at the link above to get a sense of how eager a not-too-far-in-the-future Court could be to reverse Windsor.

Congressman John Lewis said of the Shelby County decision, "What the Supreme Court did today is stab the Voting Rights Act of 1965 in its very heart." (John Aravosis, John Lewis: Supreme Court stabbed civil rights law "in its very heart" Americablog 6/25/2013)

This opens the way for Republican-dominated states to proceed with voter-suppression laws and underhanded pressure tactics and electoral tricks to disenfranchise African-American, Latino and poor white voters as they have actively been attempting to do the last several years. These are straight-up segregation laws. And the denial of the vote to black citizens was the core of the old Southern segregation system with the Jim Crow laws that accompanied it. This has become a key Republican strategy to keep their Party competitive on the national level. And the shamelessly partisan Supreme Court has given them a green light to proceed.

I heard an activist at the Netroots Nation convention last weekend warn that demography is not destiny, it's an opportunity. He was referring to the confidence that so many Democrats have that the increasing percentage of Latino voters will make the Democrats the majority Party for long into the future.

Segregationist voters suppression laws like the ones for which the Supreme Court just opened the gates are one major tool that the Republicans are using to make sure that demography won't be their destiny.

Justice Ginsburg wrote in her dissent in Shelby County (linked above):

It is well established that Congress' judgment regarding exercise of its power to enforce the Fourteenth and Fifteenth Amendments warrants substantial deference. The VRA addresses the combination of race discrimination and the right to vote, which is "preservative of all rights." ... When confronting the most constitutionally invidious form of discrimination, and the most fundamental right in our democratic system, Congress' power to act is at its height.
But this is what the Roberts Court effectively disabled in the Shelby County decision. Ginsburg also observes:

Although the VRA wrought dramatic changes in the realization of minority voting rights, the Act, to date, surely has not eliminated all vestiges of discrimination against the exercise of the franchise by minority citizens. Jurisdictions covered by the preclearance requirement continued to submit, in large numbers, proposed changes to voting laws that the Attorney General declined to approve, auguring that barriers to minority voting would quickly resurface were the preclearance remedy eliminated. City of Rome v. United States, 446 U. S. 156, 181 (1980). Congress also found that as "registration and voting of minority citizens increas[ed], other measures may be resorted to which would dilute increasing minority voting strength." Ibid. (quoting H. R. Rep. No. 94–196, p. 10 (1975)). See also Shaw v. Reno, 509 U. S. 630, 640 (1993) ("[I]t soon became apparent that guaranteeing equal access to the polls would not suffice to root out otherracially discriminatory voting practices" such as voting dilution). Efforts to reduce the impact of minority votes,in contrast to direct attempts to block access to the ballot, are aptly described as "second-generation barriers" to minority voting. ...

In response to evidence of these substituted barriers,Congress reauthorized the VRA for five years in 1970, for seven years in 1975, and for 25 years in 1982. ... Each time, this Court upheld the reauthorization as a valid exercise of congressional power. ... As the 1982 reauthorization approached its 2007 expiration date, Congress again considered whether the VRA’s preclearance mechanism remained an appropriate response to the problem of voting discrimination in covered jurisdictions. [my emphasis]
President Obama released this tame, two-paragraph statement on the Court's gutting of the VRA:

I am deeply disappointed with the Supreme Court’s decision today. For nearly 50 years, the Voting Rights Act – enacted and repeatedly renewed by wide bipartisan majorities in Congress – has helped secure the right to vote for millions of Americans. 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.

As a nation, we've made a great deal of progress towards guaranteeing every American the right to vote. But, as the Supreme Court recognized, voting discrimination still exists. And while today’s decision is a setback, it doesn't represent the end of our efforts to end voting discrimination. I am calling on Congress to pass legislation to ensure every American has equal access to the polls. My Administration will continue to do everything in its power to ensure a fair and equal voting process.
Which looks on its face to be his statement that he intends to do nothing serious to counter this move, such as insisting that Congress enact new remedies that directly address the legal hair-splitting the Court used and using the issue to stigmatize the Republicans' vote-suppression efforts.

Lyndon Johnson's daughter Luci Baines Johnson has a more focused comment ( Emily Donahue, Luci Baines Johnson on the Voting Rights Act & Her Father’s Legacy KUT News-Austin 06/25/2013):

I stand committed, as my father did, to protecting every American's right to vote and to have that vote counted. My father's proudest moment was signing the 1965 Voting Rights Act into law. I know, because I was there with great Civil Rights leaders and a courageous Congress who came together to take this stand for social justice. Section 4 of that landmark legislation was a safeguard to ensure equal access to the right to vote for all our people.

Today's decision by the Supreme Court invalidating Section 4 breaks my heart. I believe it has failed to acknowledge the elephant in the room that there is still painful discrimination in our country which impedes access to the voting booth for some of our people, especially the poor, the elderly and those of color. It is my prayer that today's Congress will demonstrate the same courage shown in 1965 to ensure that equal access to the vote is not just a lofty goal, but a fact.
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