Sunday, July 07, 2013

The right to vote and the Constitution

Supreme Court Takes Huge Blow to Minority Voter Rights The Young Turks 06/25/2013:

Since the Supreme Court's Segregation Five gutted the Voting Rights Act (VRA) in the Shelby County case two weeks ago, I've seen several references to the idea that the right to vote isn't guaranteed by the US Constitution.

One was this piece from March by Rich Lewis, Americans Have No Constitutional 'Right' to Vote Christian Post 03/04/2013.

This doesn't count? The part where it says "the right to vote" as clear as day? AMENDMENT XIV

Or this, in the 19th Amendment where we have it this way? "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex"?

Or this, AMENDMENT XXVI, "The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age."

Or this, that's in the original text? "The United States shall guarantee to every State in this Union a Republican Form of Government ..." It doesn't say "right to vote" there. But in 1789 the entire concept of "republican form of government" included the assumption of the right of at least some people to vote. In the debates of the time, the two major alternative forms of government in contention were monarchy vs. republic.

The Constitution doesn't guarantee some absolute right to vote, or a right to vote for every federal officer. But whoever said that it did? The three Amendments I just cited were intended to eliminate certain conditions as a ground for the denial of the right to vote. The 14th Amendment even specifies that rights and privileges of citizenship can be curtailed as punishment for someone duly convicted of a crime: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

And it is a real problem, and a very significant issue in voter suppression, that a large number of black men in particular are deprived by state laws of the right to vote for years or even a lifetime because of a criminal conviction, even years after they have served any prison time or paid any fines that was part of the sentence.

But that's a very different thing than saying there is no right to vote in the Constitution.

Jonathan Soros and Mark Schmitt also write on the issu in The Missing Right: A Constitutional Right to Vote Democracy Journal 28 (Spring 2013):

Amendments to the Constitution have required "equal protection," eliminated the poll tax, and made it unconstitutional to restrict voting based on race, sex, and age for those over 18. For years the Supreme Court relied on these amendments to expand the franchise, and the broadening of voting rights, which was associated with the civil-rights movement, was widely accepted as a marker of progress toward a just society until about 2000. More recently, in an environment of increasingly rigid partisan loyalties, controlling who votes offers more leverage than persuading voters to change their minds, and thus access to the ballot itself has become an arena of intense political conflict. These conflicts constitute what the election scholar Richard Hasen calls "the voting wars." Most of these wars end up in the courts, where the rules of engagement—defined by our Constitution—do not sufficiently protect voters’ rights to exercise their franchise. In the absence of an explicit right to vote, the Court has found no issue with a variety of regulations that unnecessarily interfere with voting.
I'm very much in favor of a democratic pushback against voter suppression and unnecessary restricts on the vote. In fact, it's a critical issue for American democracy. It should be a critical concern of both parties. But in fact the segregationists have captured the Republican Party, about as completely as such captures happen in American politics. In today's real existing United States, the democratic obligation to protect the right to vote is also a Democratic Party partisan concern.

But their formulation of it is something I'm not comfortable with, at least not yet:

Finally enshrining the right to vote in the Constitution would help resolve most of these cases in favor of voters. It would not make every limitation unconstitutional ... but it would ensure that these limitations are judged under the standard known as "strict scrutiny," meaning that governments would have to show that the restrictions were carefully designed to address a compelling interest of the state.
Because the massive voter suppression under the post-Reconstruction, Segregation 1.0 system in the Deep South was based on devices to avoid recognizing in reality rights already guaranteed in the Constitution.

And I worry that the defenders of Segregation 2.0 might try some mischief around this issue. Such as writing "concern troll" columns - which would probably sound a lot like the Rich Lewis one linked above - rhetorically advocating a Constitutional Amendment to secure the "right to vote" as a way of promoting the notion that there currently is no real Constitutional right to vote.

David Lawrence, editor at the conservative-leaning U.S. News and World Report professed just such a concern-troll interest for the 14th Amendment in his opposition to school integration, as Alex Kingsbury reports in David Lawrence: A Profile US News 05/16/2008:

When President Dwight Eisenhower directed federal troops to enforce the court-ordered integration of Little Rock Central High School in 1957, Lawrence wrote in a stinging U.S. News editorial: "It is not too late to return to the normal processes of law enforcement in America and to rely on the good sense of a community whose feelings have understandably been aggravated by an unlawful use of federal troops."

His views on the primacy of the Constitution, however, did not extend to the whole document. Lawrence wrote frequently that the 14th Amendment, which guarantees equal protection under the law and provided the basis for civil rights legislation, was not legally ratified and was therefore "null and void." "God created men of different colors, just as he created birds of different colors. We know the old saying of 'birds of a feather flock together.'" Desegregation, he wrote in a letter to segregationist Charles Bloch, "would not be possible if the Constitution as written was upheld."
Kingsbury didn't bother to mention that Lawrence's argument was bunk and the Supreme Court had recognized the validity of the 14th Amendment almost too many time to account.

Segregationist sentiment has become steadily more respectable among Republicans. In the 2008 piece, Kingsbury took on face value Lawrence's argument that his support of segregation hand nothing all to do with race, no sirree, nothing at all:

Likewise, it was adherence to process—apparently more than overt racism—that fed Lawrence's fierce opposition to public school integration. The Constitution "teaches respect for the minority, and so long as the minority among us conforms to the process of the Constitution, we should confine our efforts to outarguing them and outvoting them rather than suppression," he told an audience in 1920.
Yes, of course it was "adherence to process," and nothing at all to do with race, Lordy me, not anything to do with race at all.

This is also the kind of cutesy doubletalk of which we can expect to hear a lot more from segregationists in years to come. Kingsbury: "Yet near the end of his life, Lawrence came to see integration as inevitable and repeatedly called for patience and calm on both sides, as 'members of all races have an equal obligation to maintain peace inside America.'" Accepting integration as "inevitable" was the slogan for the defeated but unreconciled on the issue.

The Supreme Court's Segregation Five have resurrected that cause from its official demise.

Since comma-dancing over definitions has always been part of segregationist culture in the US, it can't be long before we have Republicans throwing public hissy-fits over use of the term "segregation" to describe their program. For stodgy definitions, I usually check the Encyclopædia Britannica, in this case their definition of "segregation, racial." Encyclopædia Britannica Ultimate Reference Suite (2012) Their definition both spells out the straightforward meaning of segregation as physical separation and the intimate connection of segregation with voter discretion in the American segregation system the Republican Party is attempting to reinstate in a 21st century form:

the practice of restricting people to certain circumscribed areas of residence or to separate institutions (e.g., schools, churches) and facilities (parks, playgrounds, restaurants, restrooms) on the basis of race or alleged race. Racial segregation provides a means of maintaining the economic advantages and superior social status of the politically dominant group, and in recent times it has been employed primarily by white populations to maintain their ascendancy over other groups by means of legal and social colour bars. ...

Racial segregation has appeared in all parts of the world where there are multiracial communities, except where racial amalgamation has occurred on a large scale, as in Hawaii and Brazil. In such countries there has been occasional social discrimination but not legal segregation. In the Southern states of the United States, on the other hand, legal segregation in public facilities was current from the late 19th century into the 1950s. (See Jim Crow law.) The civil rights movement was initiated by Southern blacks in the 1950s and '60s to break the prevailing pattern of racial segregation. This movement spurred the passage of the Civil Rights Act of 1964, which contained strong provisions against discrimination and segregation in voting, education, and the use of public facilities. [my emphasis]
What we think of now as the "heroic" period of the civil rights movement beginning with the Montgomery Bus Boycott of 1955-6 focused on a wide variety of issues, such as access to desegregated education and public facilities, equal treatment in the courts, anti-lynching, and employment opportunities. But securing voting rights for African-American citizens as, yes, a practical recognition of a basic democratic right, was central to the fight. Because denial of the vote to black citizens was also the political core of the segregation system, even narrowly defined as physical separation in public facilities.

In political terms, it's entirely legitimate to speak of the voter-suppression laws as segregationist measures. If we want to refer specifically to laws requiring physical racial separation, "Jim Crow" or "Jim Crow law(s)" is a well-understood term for that.

Soros and Schmitt provide a good summary of the various kinds of voter-suppression techniques the Republican are currently using, like: unnecessarily early registration requirements; photo ID laws, which create a lot of latitude for mischief as well as an unnecessary impediment to voting in themselves; voting on Tuesdays (which would require a Constitutional Amendment to completely eliminate); and, felon disenfranchisement laws.

They advocate a Right To Vote Amendment as a way to give more unity and focus and hopefully more effectiveness to the current right-to-vote efforts. They look to the unsuccessful campaign for the Equal Rights Amendment (ERA) as an example of who even a fight that fails of its goal can have major positive effects:

A good example of an amendment campaign that built a movement is the Equal Rights Amendment (ERA), which fell short of being ratified in the late 1970s, but gave the emerging women’s movement a clear goal, provided it with a guiding mission, and prompted a significant national conversation about equality and the rights of all people. Through state and federal laws, the creation of state commissions on the status of women, and, above all, cultural changes in the family, schools, and corporate America, women have achieved many of the original goals of the ERA.
It's a good point. But, as they also note, some voting-right advocates "believe that acknowledging this constitutional deficiency is confusing and weakens their reliance on an implicit 'right to vote' in legal or public advocacy." That's exactly where my concerns fall.

Supreme Court Jutice Antonin Scalia expresses his own segregationist view on laws enforcing voting rights, as reported in Scalia: 'Racial Entitlement' in Voting Rights Act 02/27/2013 The Young Turks, which also gives some historical background on the VRA:

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