Remember when conservatives across the nation accused liberal justices of being activists? Of making law without interpreting it? Of imposing their political ideology on court cases instead of taking a uniquely 18th century view of the constitution? Good times, no?
Welcome to the conservative majority.
Today’s ruling in the Voting Rights Act case shows that the right can be just as activist, just as ideological and just as dismissive of the democratic process as they accused the left of being. It was evident during arguments in March, and the decision was not far off from what many feared would happen.
The court declared that Section 4 of the act (which determined the formula to identify states that needed voting oversight) was unconstitutional. That renders Section 5 moot, because without jurisdictions that are required to get preclearance from the federal government before they enact laws that might violate voter’s rights, there is no need for, well, preclearance in the first place. So why not simply declare Section 5 unconstitutional as well? There was at least one vote for that as:
Justice Thomas called for striking down Section 5 immediately, saying the majority opinion had provided the reasons and merely left “the inevitable conclusion unstated.”
The most disturbing part of the decision came from Justice Roberts, who claims to care about originalism and reliance on the past, except in cases where he doesn’t. Thus,
The current coverage scheme, Chief Justice Roberts wrote, 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.”
What makes sense in light of current conditions is a product of the past. That’s the bedrock assumption of every history class I’ve ever taken and one that serious historians would surely agree. It’s like saying that Paula Deen said what she said only in light of what’s happening in the country in 2013 and forgetting that she is a product of a specific time, place, history and upbringing.
As usual, it took a liberal justice to remind the court why the Voting Rights Act had been passed in the first place and why we still need it today: History. From Justice Ginsburg:
“The great man who led the march from Selma to Montgomery and there called for the passage of the Voting Rights Act foresaw progress, even in Alabama,” she said. “’The arc of the moral universe is long,’ he said, but ‘it bends toward justice,’ if there is a steadfast commitment to see the task through to completion.”
“That commitment,” she said, “has been disserved by today’s decision.”
Ginsburg also laid out a chilling future based on today’s decision.
She said the focus of the Voting Rights Act had properly changed from “first-generation barriers to ballot access” to “second-generation barriers” like racial gerrymandering and laws requiring at-large voting in places with a sizable black minority. She said Section 5 had been effective in thwarting such efforts.
As if on cue, and wasting no time in trying to disenfranchise the next generation,
“With today’s decision,” said Greg Abbott, Texas’ attorney general, “the state’s voter ID law will take effect immediately. Redistricting maps passed by the Legislature may also take effect without approval from the federal government.”
Finally, you know that things are seriously awry when a liberal has to remind the conservatives of the bedrock of right wing originalist dogma:
In any event, she said, Congress, which reauthorized the law by a large majority in the House and unanimously in the Senate, was the right body to decide whether the law was needed and where.
Exactly.
Yes, we have an African-American president and we had more African-American participation in the 2012 election, and we have many more African-Americans in local and state offices. But we still have mischief and we still have false cries of voter fraud from the right. What will happen now because of this decision is that those laws will take affect and aggrieved parties will need to react to them after the fact. You were denied your vote? Oh well. Better luck next time.
Democracy indeed.
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