National media tend to assume conservative Justice Antonin Scalia's vote in the upcoming Voting Rights Act case - Shelby County v. Holder - is a foregone conclusion because of his decisions on other questions that involve race, such as school desegregation. But Scalia's approach to remedies for impermissible racial discrimination, the harm that the Voting Rights Act addresses, has respected prior rulings and Congressional action, a noteworthy position considering the constitutionality of the Voting Rights Act has been repeatedly upheld.
To be clear: traditional swing-vote Justice Anthony Kennedy is more amenable to legislation and policies that take race into account than Justice Scalia. Unlike Scalia, Kennedy has explicitly disavowed Chief Justice John Roberts' radical request that the Court refuse to approve any government recognition of race, ever. Therefore, it is understandable that the media focuses on Kennedy when speculating over which conservative Justice might uphold the "preclearance" provision within the Voting Rights Act - Section 5 - that requires states with a history of racial discrimination submit election practice changes for federal review and approval.
For example, The New York Times reported the reasons that Kennedy, who has rejected the ahistorical "colorblind" approach to constitutional law even as he struck down specific school integration plans, might also reject the challenge to the constitutionality of Section 5:
The issue in Shelby County is whether Section 5 of the Voting Rights Act, viewed as the nation's most effective civil rights law, remains necessary to prevent racially biased voting laws in nine states and parts of seven others with egregious histories of discrimination against minority voters.
In the Shelby County case, as a federal trial court and a federal appeals court found, there is no room for equivocation [as in recent school desegregation cases]. If Justice Kennedy votes to strike down Section 5, he will be calling a halt to an unfinished effort to end what the Supreme Court once called "an insidious and pervasive evil."
Congress gathered an enormous amount of evidence in 2006 about the persistence of voting discrimination in covered jurisdictions. It found that discrimination was still heavily concentrated in those places and so widespread that case-by-case litigation -- what Justice Kennedy has called "very expensive," "very long" and "very inefficient" -- is inadequate.
Without Section 5, from 1968 through 2004 more than 1,500 discriminatory voting changes would have gone into effect. And last year, Section 5 blocked attempts to discriminate against voters in many parts of the country.
In an interview with former Secretary of State Colin Powell, Fox News host Bill O'Reilly ignored key legal problems for photo voter ID laws under the Voting Rights Act and dismissed concerns of voter suppression, claiming in-person voter fraud was a problem.
On the January 29 edition of the O'Reilly Factor, O'Reilly hosted Powell to discuss "racial politics," voter suppression, and voter fraud, but failed to provide important context, including any mention of a crucial Voting Rights Act case set to be argued before the Supreme Court on February 27. In part, this case will turn on the historic civil rights law's efficacy at preventing the type of race-based voter suppression Powell described.
The problem that recent photo voter ID laws purport to address - voter fraud committed in person - is "virtually non-existent." Nevertheless, in the past two years, state Republican legislators and right-wing allies have aggressively pushed such laws that add another identification requirement for voting, even though voter identification is already required across the country. Under the Voting Rights Act, federal courts have recently confirmed that new voter ID laws in jurisdictions with a history of voter suppression have a prohibited effect on African-American and Hispanic voters.
O'Reilly refused to acknowledge any of these facts in his interview with Powell, even as Powell tried to explain them to him:
Described as the crown jewel of civil rights law, the Voting Rights Act has been the target of right-wing misinformation for decades, and a parallel legal assault against its constitutionality will be argued before the Supreme Court in Shelby County v. Holder on February 27. The VRA, enacted to stem voter suppression on the basis of race in the South, contains a provision within it - Section 5 - which identifies the worst historical offenders and requires that election changes in those jurisdictions pass federal review. The current legal challenges to the VRA focus on Section 5, and are the continuation of the same discredited claims lodged against this anti-discrimination law since its inception.
In reporting that North Carolina is likely to enact a voter ID law that was vetoed by the former governor, the Associated Press failed to acknowledge the relationship between Section 5 of the Voting Rights Act and photo requirements that threaten the right to vote. Federal courts have found voter ID laws with photo requirements to be impermissible under Section 5, which bars states with a history of racial discrimination from changing election practices absent federal review.
Voter ID is a top priority for North Carolina Republicans, who gained control of both executive and legislative branches during the November state elections. Although the AP noted the opposition to this legislation, it reported it as a partisan counterargument:
[New Republican Governor] Pat McCrory and Republican legislative leaders pledged that if elected, they would undo vetoes from Democratic Gov. Beverly Perdue that GOP legislators could not override because they lacked enough votes.
At the top of the list was the 2011 bill requiring voters to show photo identification to cast ballots in person.
North Carolina Republicans have said they wanted the photo ID requirement to ensure the integrity of elections and discourage voter fraud. But Democrats and civil rights groups have accused Republicans of passing voter ID because many people who don't have photo identification - the poor and minorities - disproportionately vote Democratic. They say that fraud is extremely rare and that photo ID would erode voting rights expanded over the past 50 years.
The extreme rarity of in-person voter fraud is a fact, not just a Democratic rebuttal to the types of voter ID laws recently proposed by state Republicans across the country. Furthermore, federal judges who examined these laws under the Voting Rights Act (VRA) in the run-up to the 2012 elections issued extensive findings that these laws can impermissibly disenfranchise voters of color. Nevertheless, the AP reported these points as partisan opinion, in the same fashion it commented that "Democrats and civil rights groups" maintain photo ID laws "erode voting rights expanded over the past 50 years."
Voting rights have been protected for the past 50 years because of the VRA, historic civil rights legislation that the AP did not mention. Section 5 of the VRA, which requires that changes to election practices - such as photo voter ID laws - by states with a history of racial discrimination first be reviewed and approved by the Department of Justice or a federal court, has been indispensable. Judges have noted this key role of Section 5 in fighting Jim Crow in opinions that halted impermissibly discriminatory voter ID laws in South Carolina and Texas, a history referenced by former North Carolina Gov. Bev Perdue when she vetoed the voter ID law North Carolina Republicans are now poised to pass.
The relationship between Section 5 of the VRA and North Carolina is especially relevant because the state is partly covered by the provision, and was the source of a right-wing challenge to the law in Nix v. Holder. The Supreme Court accepted a similar challenge from Alabama, Shelby County v. Holder, and oral arguments on the fate of Section 5 are scheduled for February 27.
A full understanding of why voter ID is legally problematic, especially in North Carolina, is impossible without discussion of Section 5. Putting the North Carolina version in context is especially important for the media now that those states challenging the constitutionality of Section 5 before the Supreme Court are also challenging the findings that their election practice changes illegally discriminated on the basis of race.
As the North Carolina voter ID law proceeds legislatively, the AP must discuss this clear overlap between those who continually push flawed voter ID laws and those who seek to do away with one of the most effective civil rights laws in American history. The stakes are high nationally, and certainly for North Carolina, as State Board of Election data show that nearly one in ten voters may be disenfranchised by the proposed photo voter ID law.
On the anniversary of the 1954 nomination of Republican Earl Warren as the Chief Justice of the Supreme Court of the United States, Ed Whelan of the National Review Online characterized as "accurate" former President Eisenhower's description of the pick as a "damned-fool mistake." Whelan did not mention that the Eisenhower quote was in reference to Warren's historic opinion in Brown v. Board of Education, the Supreme Court decision that prohibited racial segregation.
Whelan, legal expert for the right-wing NRO, regularly comments on dates of legal events in a regular series called "This Day In Liberal Judicial Activism." In selecting the nomination of Warren to emphasize his agreement that this Chief Justice was a "mistake," Whelan did not describe Eisenhower's motivations for the comment. As reported by The New York Times:
"The biggest damn fool mistake I ever made," Dwight D. Eisenhower said of his appointment of Chief Justice Earl Warren, who discomfited him with the Brown v. Board of Education ruling ordering desegregation of public schools, and other liberal opinions.
In Warren's obituary, the Times described the impact of the Supreme Court under Warren, a legacy left unexplained by Whelan:
The parts that constituted the whole [of the Warren Court] were embodied in a series of decisions that had the collective effect of reinforcing popular liberties. Among these were rulings that:
Outlawed school segregation.
Enunciated the one-man, one-vote doctrine.
Made most of the Bill of Rights binding on the states.
Upheld the right to be secure against "unreasonable" searches and seizures.
Buttressed the right to counsel.
Underscored the right to a jury trial.
Barred racial discrimination in voting, in marriage laws, in the use of public parks, airports and bus terminals and in housing sales and rentals.
Extended the boundaries of free speech.
Ruled out compulsory religious exercises in public schools.
Restored freedom of foreign travel.
Knocked out the application of both the Smith and the McCarran Acts--both designed to curb "subversive" activities.
Held that Federal prisoners could sue the Government for injuries sustained in jail.
Said that wages could not be garnished without a hearing.
Liberalized residency requirements for welfare recipients.
Sustained the right to disseminate and receive birth control information.
A Wall Street Journal editorial scolds communities of color for protesting New York City police "stop-and-frisk" tactics, failing to mention that the police are changing this policy in response to successful challenges to its constitutionality. The WSJ also incorrectly claimed these warrantless street detentions have "a track record of saving lives and making ghettos safer" and falsely equated constitutional gun violence prevention strategies with unconstitutional search and seizure violations.
In the past decade, despite evidence of its inefficacy, the NYPD has dramatically increased stop-and-frisk, which overwhelmingly targets young men of color. Support for this police tactic is not strong, receiving the most significant opposition in the communities of color where it is most prevalent. Recent lawsuits alleging this police practice is not only impermissibly racially discriminatory, but also a systematic violation of the Fourth Amendment's prohibition on unreasonable searches and seizures, are succeeding.
Nevertheless, the WSJ argued that black and Hispanic New Yorkers should be "thankful" that the police are targeting them for pat-downs without reasonable suspicion of illegal activity. From the editorial:
Mayor Mike Bloomberg and Police Commissioner Raymond Kelly credit "stop and frisk" police tactics with the drop in homicides, and rightly so, but it's worth noting that Gotham has a slew of Democrats running to succeed Mr. Bloomberg next year and promising to repeal "stop and frisk" if they're elected. The left claims to care so deeply about the welfare of minorities and the poor, yet they oppose policies that have a track record of saving lives and making ghettos safer for the mostly law-abiding people who live in them.
By the way, many of these same liberal opponents of "stop and frisk" support stricter gun control laws. But as commentator David Frum recently asked, how can you support gun control and oppose "stop-and-frisk"?
The WSJ does not cite evidence for its claim that the "drop in homicides" is due to the past decade's stop-and-frisk policing. In fact, the evidence does not support this much-repeated right-wing talking point. In addition to the NYPD admission that "nearly nine times out of ten" the individuals detained under the policy are innocent and that police discover "guns in only about one of every 666 stops--or 0.15 percent," claims that stop-and-frisk is responsible for the drop in homicide are spurious. As explained by The New York Times:
[Proponents of stop-and-frisk] applaud the mayor for inventing "a new statistic": 5,600 "fewer murders in the past decade" because of stop-and-frisk.
The mayor's math is certainly inventive, as well as deeply ahistoric. He takes the high point for homicides, which hovered around 2,200 in the late 1980s and early 1990s. Then he points to the number of homicides each year since he took office in 2002, which has hovered near 500, and claims 5,600 lives saved.
Where to begin?
The early 1990s represented a high-water mark for urban bloodshed. Boston, Miami, Chicago, Los Angeles, Richmond, Washington: all became caldrons of violence.
The wave of homicides subsided most substantially in New York, but violence slid in most cities. Smart policing helped a lot. So did the waning of the crack epidemic, the decline of drug turf wars, and tens of thousands of citizens who refused to stay locked in their homes.
New York experienced its sharpest drop before 2002, the year Mr. Bloomberg took office. Since then, homicides have fallen about 11 percent, while stop-and-frisks increased sevenfold.
The NYPD has already begun changing its stop-and-frisk policy in recognition of the increasingly successful challenges to its constitutionality. Although brief police detentions of individuals on the street are not automatically unconstitutional, in certifying a class action lawsuit against the NYPD's specific stop-and-frisk practices, a federal court warned the NYPD last summer that its use of the practice appeared to go far beyond what was constitutionally reasonable. Furthermore, on the same day the editorial page of the WSJ published support for stop-and-frisk, a federal court struck down part of it as unconstitutional, a major news story the WSJ covered in its straight news section:
In the first judicial rebuke of the city's stop-and-frisk practice, a federal judge ordered the New York Police Department to end what the ruling described as "unlawful trespass stops" outside some private buildings in the Bronx.
In her harshly worded ruling, the judge wrote that "while it may be difficult to say where, precisely, to draw the line between constitutional and unconstitutional police encounters, such a line exists, and the NYPD has systematically crossed it."
Finally, the WSJ recycled journalist David Frum's question, "How can you support gun control and oppose stop-and-frisk?"
The answer is simple. First, even if stop-and-frisk was an effective gun violence prevention measure, as right-wing media erroneously claim, it does not follow that it is a necessary tool to enforce gun laws. Second, as conservative Supreme Court Justice Antonin Scalia concluded, "gun control" is constitutional. According to yesterday's federal district court ruling, NYPD's stop-and-frisk policy is not.
Media coverage of the economic consequences of sequestration -- steep federal budget cuts mandated by Congress' failure to pass deficit reduction legislation -- has largely ignored the effects of these cuts to the Department of Justice, which in recent years has brought a number of enforcement actions against financial institutions that violate fraud and fair lending laws.
However, comments from Attorney General Eric Holder in an interview with NPR Legal Affairs correspondent Nina Totenberg make clear that the potential effects of the now-delayed sequester could be especially damaging to the DOJ and could seriously hamper litigation against the financial institutions that fueled the Great Recession.
A Media Matters search of major newspapers and evening news transcripts available on Nexis indicated that the media did not explain the economic consequences of mandatory budget cuts to the Department of Justice prior to the fiscal cliff deal, which postponed sequestration for two months.
In the interview given after a speech he delivered at the John F. Kennedy Presidential Library and Museum, Holder revealed that DOJ's need to budget public safety programs in the event of sequestration would sideline successful attempts to hold banks accountable for the mortgage fraud and discrimination that partially caused the Great Recession.
Holder explained the "reality" that civil cases brought by DOJ and the recovery of "money on behalf of the American people" will "have to wait" if sequestration goes through, because public safety - such as maintenance of federal prisons - must be "prioritized." As reported by CNN.com:
U.S. Attorney General Eric Holder said Tuesday that if the Justice Department were faced with budget cuts due to sequestration, he believes that he would be able to maintain public safety by shifting resources and that the federal prison system could operate "for months" if necessary.
"I have the flexibility to move funds within the Department," Holder said.
However, nearly all civil cases would have to be put on hold, he added during an extended interview with National Public Radio reporter Nina Totenberg after giving an address at the John F. Kennedy Presidential Library in Boston.
If DOJ civil litigation is placed on the back burner, then so too is a large component of DOJ's efforts at compensating victims of the illegal mortgage practices of financial institutions before the recession. The DOJ has filed six lawsuits in response to past fraud and discrimination allegedly endemic among banks such as Wells Fargo, Citigroup, and Deutsche Bank, including a recently settled case against the Bank of America.
The DOJ alleged that one of Bank of America's acquisitions "charged black and Hispanic borrowers higher mortgage-lending fees or steered them into costly subprime loans even though their credit histories qualified them for a mortgage with more favorable terms."
DOJ has also recently accused Bank of America of engaging in a "spectacularly brazen" fraud that cost taxpayers more than $1 billion by "selling defective residential mortgage loans to Fannie Mae and Freddie Mac that later defaulted."
Now that the sequester has been postponed, national media has another chance to explain how mandatory budget cuts to DOJ, not just to the U.S. Courts, will affect access to justice for victims of big banks' financial malfeasance. As DOJ's civil litigation over illegal mortgage practices makes clear, the actions of institutions like Bank of America directly contributed to the housing bubble that fueled the Great Recession. In its coverage of the economic consequences of the sequester, the media should point out this specific harm to vulnerable homeowners.
Opponents of effective voting rights enforcement have taken to right-wing media outlets to allege that the Department of Justice engaged in "collusive," "illegal," and "crooked" acts for its role in the determination of whether a California county and the state of New Hampshire qualify to opt-out of Section 5 of the Voting Rights Act (VRA). But these allegations of "trickery," most recently pushed by National Review Online contributor Hans von Spakovsky, ignore that DOJ is complying with the text of the VRA as interpreted by the courts.
Two former Bush administration DOJ officials have accused the department of acting improperly in the successful removal of Merced County, California, from the voter protection requirements of Section 5 and the ongoing consideration of such an opt-out for New Hampshire. Writing on the right-wing blog PJ Media, J. Christian Adams argued that in the Merced case DOJ had "ignore[d] the law" and "conned" a federal court as part of an "elaborate legal ruse" to preserve the VRA in Shelby County v. Holder, the case in which the U.S. Supreme Court will consider a claim that Section 5 is unconstitutional. Continuing this attack, von Spakovsky accused the DOJ in the National Review Online of similar "deception" and "manipulation" of the VRA in its considerations of the New Hampshire case, again in order to "manipulate the Supreme Court in the Shelby case." A conservative advocacy group immediately adopted their argument and filed a motion to intervene in the New Hampshire case, as was predicted by election law expert and law professor Rick Hasen:
I expect this argument to get a lot of play.
The great irony here, for those who don't follow this issue closely, is that you have people who oppose section 5 of the VRA complaining that DOJ is making it too easy for those jurisdictions subject to its preclearance provision to escape from the Act's coverage.
Under Section 5 of the Voting Rights Act, Southern jurisdictions who illegally denied citizens the right to vote during the Jim Crow era - and subsequent jurisdictions that engaged in similar conduct - are forbidden from changing covered election practices without federal approval. There is a legal opt-out to Section 5, by which jurisdictions can "bailout" of the "preclearance" requirements by proving they are no longer breaking the law. To encourage successful bailouts, Congress increasingly "liberalized" this process. Similarly, the Supreme Court in its last VRA case -NAMUDNO v. Holder - "rewrote" the bailout requirements to encourage even more use of the process.
Nevertheless, right-wing activists have successfully placed the Shelby case before the Supreme Court, which could release all covered jurisdictions if Section 5 is declared unconstitutional. Adams and von Spakovsky, who quote anonymous sources and internal DOJ documents to support their arguments, argue that DOJ has "designed" a "legal strategy" to avoid this outcome by aggressively following NAMUDNO.
Beyond the unremarkable fact that the DOJ - the defendant in Shelby - would prefer not to both lose the case and part of the most effective civil rights law in history, Adams and von Spakovsky misrepresent the bailout cases to claim neither Merced nor New Hampshire qualify. Adams complains that the extensive DOJ investigation of Merced's bailout request revealed that the county should have submitted certain past election changes for preclearance and because the county "settled" a Section 5 case, it was ineligible for bailout. But Merced's counsel responded to Adams' accusations, pointing out that "case law under Section 5...holds that the preclearance obligation can be retroactively satisfied":
Mr. Adams is simply incorrect about the Lopez litigation. There was no "settlement"; the County won that lawsuit outright, having summary judgment granted in its favor. See Lopez v. Merced County, 2008 U.S. Dist. LEXIS 3941 (E.D. Cal. Jan. 16, 2008). Thus, the County was not disqualified from bailout by virtue of the provision relating to consent decrees entered within the last 10 years. 42 U.S.C. § 1973b(a)(1)(B).
[R]egarding the submission of a number of historical voting changes for preclearance in connection with the bailout, there are a number of points to be made:
Section 5 itself provides that oversights in preclearance compliance may be forgiven in a bailout action if they were "were trivial, were promptly corrected, and were not repeated." 42 U.S.C. § 1973b(a)(3). In other words, Mr. Adams's implication that Section 5 has a "no tolerance" standard--and that the Attorney General is therefore ignoring the command of Congress--is refuted by the text of Section 5 itself.
"[P]ost hoc" preclearances are typical in connection with bailout, seriously undermining the notion that such an approach is part of a vast conspiracy to save Section 5.
Adams subsequently admitted "retroactive" preclearance was possible.
Von Spakovsky repeated Adams' claim that states seeking bailouts must not have "failed to submit for preclearance...voting changes they have made" over the past ten years, without acknowledging the retroactive preclearance that may occur for New Hampshire. Von Spakovsky used this misleading point as proof that New Hampshire is actually less qualified than Shelby County for a bailout, because New Hampshire allegedly has more unsubmitted preclearance requests than Shelby County did. But the footnote from the Shelby case on appeal that von Spakovsky partially quoted for the uncontroversial rule that unprecleared voting changes - absent retroactive approval - preclude bailout, explicitly notes that Shelby County's primary problem was DOJ's objection:
Although the Court did not permit discovery into the question of Shelby County's bailout-eligibility, it is clear -- based on undisputed facts in the record -- that Shelby County is not eligible for bailout. Under Section 4(a)(1)(E), a jurisdiction is only eligible for bailout if, during the ten years preceding its bailout request, "the Attorney General has not interposed any objection...with respect to any submission by or on behalf of the plaintiff or any governmental unit within its territory." 42 U.S.C. § 1973b(a)(1)(E). The Attorney General concedes that, in 2008, he interposed an objection [.]
In a recent column, Wall Street Journal editorial board member James Taranto seized on a tribute to lifelong civil rights activist Lawrence Guyot written by the progressive Constitutional Accountability Center as an opportunity to attack the Voting Rights Act of 1965. But Taranto's criticism of the most effective anti-discrimination law in history ignores ample relevant history and case law.
Guyot passed away on November 22 at the age of 73. As a civil rights worker in the 1960s, he was beaten, jailed, and tortured for the voting rights and anti-segregation advocacy he undertook on behalf of African-Americans in Mississippi. In their tribute to Guyot, CAC noted that while current voter suppression is nowhere as violent as the tactics Guyot suffered, if unchecked by the Voting Rights Act, their effects still present discriminatory voting obstacles.
In his November 29 column, Taranto used CAC's Guyot obituary to attack Section 5 of the VRA, which Congress and federal courts have consistently reauthorized and utilized as essential for protecting the voting rights of millions of citizens who aren't white. Taranto also criticized the absence of extensive legal analysis in the obituary, complaining that it instead had "adjectives and adverbs," and more than one use of the word "iconic."
For a pair who work for something called the Constitutional Accountability Center, [Doug] Kendall and [Emily] Phelps don't have a lot to say about the constitution. Their defense of Section 5 is purely sentimental, with lots of intensifying adjectives and adverbs. Shelby County v. Holder, they exclaim, is "a monumentally important challenge to a key part of the Voting Rights Act, the iconic law for which for which [sic] Mr. Guyot shed blood."
Taranto, who cites a map and the Supreme Court brief for the Alabama county challenging the constitutionality of the VRA, focuses solely on the obituary to accuse CAC of not discussing the Constitution more in their tribute to Guyot. Yet Taranto fails to mention the extensive legal analyses and legal briefs CAC has written on the constitutionality of the VRA, all easily accessible on their website, as well as in other news outlets.
It is true that that CAC used the word "iconic" four times. It is also true that Taranto managed to write an entire column on the inappropriateness of Section 5 of the Voting Rights Act without once using the words Jim Crow, and only referencing voter suppression in quotes. Discussion of these topics is crucial to any analysis of the VRA.
Throughout his column, Taranto questions why only certain areas must get approval for changes to their election practices under the VRA. The answer is simple: even with the passage of the Fourteenth and Fifteenth Amendments to the Constitution following the Civil War, states of the Old Confederacy in the South refused to recognize equal protection and voting rights for African-Americans, through Reconstruction to the late Jim Crow era. From the U.S. Commission on Civil Rights' 1971 introduction to the 1970 VRA amendments:
Despite these constitutional protections [of the Reconstruction amendments], blacks in the South were virtually disenfranchised from the end of the Reconstruction Period until 1965, and members of other minority groups have also frequently been denied the right to vote.
It was not until the passage of the Voting Rights Act of 1965, however, that this right was extended to black people in the South in a meaningful way.
As Congress discovered more evidence of discrimination against racial, ethnic, and national origin minorities, more geographic areas were added to the scope of the VRA's anti-discrimination protections. Evidence of this discrimination can be shown by disproportionate effects or basic logic, which is why one appellate court recently found evidence of the former in South Carolina, and another appellate court utilized the latter to explain that if the predominant number of "young,...elderly and poor voters" affected by voter suppression in Texas are racial minorities, the VRA applies.
The reason that non-Southern areas remain uncovered by Section 5 of the VRA despite recent evidence of similar voter suppression is also unexplained in Taranto's column. States uncovered by the VRA do indeed engage in the same discriminatory tactics that have been overwhelmingly rejected in the courts. The answer to this omission is not complicated: it was difficult enough to pass the 2006 reauthorization of the Voting Rights Act during a Republican presidency, and as evidenced by current Republican obstruction, updating the VRA to cover additional areas has become increasingly unlikely.
Taranto was correct that CAC's obituary of Guyot did not go into a detailed legal analysis of whether the reauthorization of the VRA in 2006 was appropriate. If he wants to see their legal analyses, however, he can read the briefs they have filed in the case or he could read any of the many blogs and articles they have written on the issue. From the CAC's Text & History:
To anyone who takes the Constitution's text seriously, there are glaring holes in the conservative constitutional attack on the Voting Rights Act. Shelby County's primary argument is that the Act's preclearance requirement is outdated and unnecessary, given changes in Alabama (where Shelby County is located) and elsewhere, but the Constitution, in fact, assigns to Congress the job of deciding how to enforce the Constitution's ban on racial discrimination in voting.
It is certainly true that the coverage formula relies on decades-old data that has less relevance today. But, as the D.C. Circuit concluded, the formula was always less important than the jurisdictions it covered. Going all the way back to 1965, "Congress identified the jurisdictions it sought to cover - those for which it had 'evidence of actual voting discrimination' - and then worked backward, reverse-engineering a formula to cover those jurisdictions." And, as the record described by Judge Bates and Judge Tatel in Shelby County shows, these jurisdictions continue to be the worst offenders, consistently refusing to live up to the Constitution's promise of a multi-racial democracy.
As Chief Justice John Roberts receives end-of-year accolades for not striking down health care reform, The Wall Street Journal is mocking this "strange new respect" on its editorial page. But the WSJ's criticism is a thin veil for its clear preference that Roberts return to his conservative ideology, while failing to acknowledge Roberts' record as a clear conservative on issues like corporate power and civil rights.
The WSJ has already called Roberts' refusal to join his conservative colleagues on the Court and declare the Affordable Care Act unconstitutional "misbegotten." It is no surprise that a November 20 WSJ editorial treated with disdain the praise for Roberts's late switch, mocking his place on Atlantic Monthly's list of "Brave Thinkers" and being named one of Esquire's "Americans of the Year" along with actress Lena Dunham. From the editorial:
Chief Justice Roberts shares the Esquire honor with Lena Dunham, the star of an Obama campaign ad and the creator and star of the HBO series about 20-something sexual angst called "Girls."
She and the Chief Justice also make the Atlantic Monthly's list of "Brave Thinkers" of 2012, by which they mean thinkers who agree with the Atlantic's liberal editors. Ms. Dunham is praised for taking "the soft glow off the 'chick flick,'" for instance when her character acts "like an underage street hooker to turn her boyfriend on," while the Chief Justice gets credit for "maintaining the Court's legitimacy" with a ruling "both brave and shrewd." President Obama probably has Time's "Person of the Year" nailed down, but expect the Chief to finish a close second.
Such is the strange new respect a conservative receives for sustaining liberal priorities. Our own view is less effusive, and to expiate his ObamaCare legal sins, a fair punishment would be that he hire Ms. Dunham as a clerk.
Yet Roberts' conservative bona fides are well established, which makes the editorial seem like an exercise in "ref-working," essentially haranguing the Chief Justice to ensure future conservative behavior. In Roberts' case, this would not be a stretch. On issues of corporate power, the Roberts Court is unprecedented in its well-reported conservatism and has given the WSJ much to celebrate.
Similarly, Roberts' record on civil rights is sufficiently right-wing. With cases addressing affirmative action, voting rights, and marriage equality in the pipeline, the current docket gives him ample opportunity to return to the conservative fold. Excepting same-sex marriage (which has yet to be accepted for review), Roberts' positions on the other two issues - presented in Fisher v. University of Texas and Shelby County v. Holder - clearly parallel those of the WSJ.
The WSJ has characterized precedent affirming the constitutionality of race-conscious admissions policies in school desegregation efforts a "large legal mistake," and has called enforcement of the Voting Rights Act the "grossest kind of racial politics." The editorial board appears to have an ally in Roberts, who has already recorded his opposition to both affirmative action and the Voting Rights Act as Chief Justice. As Supreme Court expert Joan Biskupic has reported:
[T]he kinds of social policy issues that play to Roberts' true conservatism, such as affirmative action and other race-based remedies are on the agenda for the term that starts in October.
From his early days in the Reagan administration, Roberts has sought to roll back the government's use of racial remedies.[As Chief Justice, in] a 2006 case involving the drawing of "majority minority" voting districts to enhance the political power of blacks and Latinos, Roberts referred to "this sordid business (of) divvying us up by race." The following year, in a case involving school integration plans, he wrote, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
On marriage equality, Roberts' position is more unpredictable, as he "has not yet voted in a major gay rights case." The WSJ, on the other hand, has already preemptively declared as "activist" any Court decision finding unequal restrictions on same-sex marriage unconstitutional. But both liberal and conservative reporting has questioned whether Roberts would join the WSJ's aversion to a constitutional right to marriage for all, irrespective of sexual orientation. Perhaps this is where the WSJ's pressure is most directed, out of fear that Roberts does not want to be on the wrong side of history.
Ultimately, regardless of the reasons behind the WSJ's attempt to embarrass the Chief Justice of the Supreme Court, it might consider the reflections of conservative federal Judge Richard Posner on the "serious mistake" of right-wing media attacks against Roberts. From an interview with NPR:
"Because if you put [yourself] in his position ... what's he supposed to think? That he finds his allies to be a bunch of crackpots? Does that help the conservative movement? I mean, what would you do if you were Roberts? All the sudden you find out that the people you thought were your friends have turned against you, they despise you, they mistreat you, they leak to the press. What do you do? Do you become more conservative? Or do you say, 'What am I doing with this crowd of lunatics?' Right? Maybe you have to re-examine your position."
Fox News regular Hans von Spakovsky used a recent U.S Court of Appeals decision striking down Michigan's affirmative action ban as an opportunity to denigrate the "modern 'civil rights' movement" and misrepresent the Sixth Circuit decision as "abusive activism." Contrary to von Spakovsky's claims in the National Review Online, the appellate decision that found the process behind the ban unconstitutional is based on U.S. Supreme Court precedent.
Repeatedly discredited von Spakovsky is infamous for continuously stressing in the right-wing media the prevalence of voter fraud, despite a dearth of evidence. On November 16, he took on equal protection jurisprudence in the National Review Online and criticized the "continued legal decay" of the Sixth Circuit appellate court and its "liberal activists." His scorn was in response to the recent decision of this federal court of appeals which - for the second time - declared that the 2006 Michigan ballot initiative that passed a constitutional amendment banning affirmative action was an unconstitutional restructuring of the state political process. As reported by SCOTUSblog's Lyle Denniston:
By imposing a total ban on any consideration of a race-based education policy, the main opinion said, the majority of voters who opposed affirmative action created a situation in which they not only had won on a policy point, "but rigged the game to reproduce [their] success indefinitely." Minorities are not guaranteed that they will win when they enter into political policy debates, the opinion stressed, but they must not be put at a special disadvantage in seeking policies that they favor and that will benefit them in particular.
The Circuit Court majority opinion, written by Circuit Judge R. Guy Cole, Jr., relied explicitly upon two Supreme Court rulings, both based on the same "political process" reasoning used by Judge Cole. The first was Hunter v. Erickson, a 1969 decision striking down a move by voters in Akron, Ohio, to change the city charter to make it much harder for city officials to adopt any housing policy to benefit racial minorities. The second was Washington v. Seattle School District No. 1, a 1982 decision striking down a voter-approved statewide law that bar the use of busing to achieve racially integrated public schools.
Other conservative media reporting has at least acknowledged that the ACLU and NAACP based their successful challenge to Michigan's ban - known as "Proposal 2" - on Supreme Court precedent. Forbes, although it wrote in opposition of the holding, recognized such precedent but theorized it "would probably be treated differently by the Supreme Court today" because there are likely four justices currently opposed to all affirmative action. Unfortunately, Forbes also misrepresented the opinion as holding "minority groups are entitled not just to equal protection under the laws, but special measures designed to correct past discrimination."
In fact, the winning argument and opinion explicitly did not turn on the constitutionality or "entitlement" of affirmative action, but rather on the restructuring of a state political process to the specific detriment of a racial minority. As reported by The New York Times:
[The decision] was not based on racial discrimination, but rather on a violation of the 14th Amendment's guarantee of equal protection. The ban, the court said, unfairly placed a special burden on supporters of race-conscious admissions policies.
People trying to change any other aspect of university admissions policies, the court said, had several avenues open: they could lobby the admissions committee, petition university leaders, try to influence the college's governing board or take the issue to a statewide initiative. Those supporting affirmative action, on the other hand, had no alternative but to undertake the "long, expensive and arduous process" of amending the state Constitution.
"The existence of such a comparative structural burden undermines the equal protection clause's guarantee that all citizens ought to have equal access to the tools of political change," said Judge R. Guy Cole Jr., writing for the majority.
Von Spakovsky, however, did not bother to analyze this reasoning or acknowledge Supreme Court precedent in his condemnation of the Sixth Circuit's "duplicitous legal reasoning." Instead, he summarily relied on the dissent's assertion that the holding was an "extreme extension" of civil rights law and concluded:
The Sixth Circuit's decision shows just how far the modern "civil rights" movement and their supporters in the judiciary have gone in adopting the arguments and actions of the discriminators and segregationists of prior generations. Their support for racial discrimination makes them indistinguishable.
From the November 5 edition of Premiere Radio Network's The Rush Limbaugh Show:
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In the continuing campaign against effective civil rights law, right-wing media have recently stepped up their attacks against a federal statute that prohibits acts that have a discriminatory effect on housing patterns. Contrary to this misinformation campaign, "disparate impact" analysis (as this technique is known) is not unconstitutional under the Fair Housing Act of 1968, and conservatives' rejection of this analysis abandons its bipartisan origins.
Disparate impact is the legal term for antidiscrimination law that prohibits actions that have a disproportionate effect on vulnerable groups. Despite its effectiveness - most recently, blocking discriminatory mortgage policies and voter suppression that targeted communities of color - conservative media have attacked disparate impact's legitimacy and dismissed it as a partisan technique only progressives support.
The National Review Online is a frequent critic, calling civil rights litigation based on disparate impact "not grounded...in sound constitutional theory" and part of a "partisan policy agenda." The Wall Street Journal has echoed claims about this "dubious legal theory," joining NRO in criticizing a recent withdrawal of a disparate impact Supreme Court case under the Fair Housing Act, Magner v. Gallagher. This week, WSJ columnist Mary Kissel recycled her conspiracy theory that the Obama administration's participation in convincing the parties to withdraw the case was "shady" because the administration "didn't want the High Court to rule on the legal theory[.]"
But these right-wing critics ignore that disparate impact has been legally accepted under numerous civil rights laws for decades, and in the housing context was part of a bipartisan effort to aggressively prevent the segregation of American society. They also ignore basic Supreme Court litigation strategy.
The constitutionality of disparate impact under the Fair Housing Act has never been addressed by the Supreme Court. There has been no need to take up the issue, as all 11 Circuit Courts have recognized it as a legal method of fair housing enforcement. As explained in a recent ProPublica report, this unanimity is expected given that aggressive government attempts to reverse discriminatory effects in housing patterns were originally considered a core function of the bipartisan Fair Housing Act:
The plan, [Republican Secretary of Housing and Urban Development] George Romney wrote in a confidential memo to aides, was to use his power as secretary of Housing and Urban Development to remake America's housing patterns, which he described as a "high-income white noose" around the black inner city.
The 1968 Fair Housing Act, passed months earlier in the tumultuous aftermath of the Rev. Martin Luther King Jr.'s assassination, directed the government to "affirmatively further" fair housing. Romney believed those words gave him the authority to pressure predominantly white communities to build more affordable housing and end discriminatory zoning practices.
Furthermore, with regards to the Obama administration's alleged influence in the Magner dismissal, there is nothing unusual about Supreme Court litigators considering the Court's ideological composition in deciding whether to pursue a legal theory that breaks on ideological lines. The ability to calculate a majority is basic Supreme Court litigation strategy. Indeed, it would be surprising if the Department of Justice did not calculate the odds regarding how justices are likely to rule in its cases. This is especially true of civil rights cases, in which conservative and progressive justices have sharply diverging views on the law. As Reuters recently reported, this is why DOJ's opponents are currently rushing to the Court in their attempts to overturn decades of civil rights law:
[I]n recent years liberals have sought to avoid going to the Supreme Court in cases ranging from affirmative action to voting rights. Advocates for liberal concerns such as abortion rights and gay marriage have also kept a wary eye on the justices while devising strategy in lower courts. Some abortion-rights advocates, for example, have so far declined to challenge state restrictions on abortion based on the notion that a fetus can feel pain, even though they believe the restrictions unconstitutional.
Those on the other side have taken the opposite tack. Conservatives who have labored to get their cases to the court include Edward Blum, director of the Project on Fair Representation, founded in 2005 to challenge race-based policies in education and voting. He recently helped lawyers bring an appeal by a white student who said she was denied admission to the University of Texas because of a policy favoring minorities.
"The timing is fortuitous," said Blum, who for two decades has worked with lawyers to challenge racial policies in education and voting districts. Citing the makeup of the Supreme Court, he said: "It's well-known that there are three members of a conservative bloc who have already expressed opinions on this and it's likely that the two new members of the conservative bloc will fall into that camp as well."
If the right-wing media do not like disparate impact theory because the modern conservative movement has abandoned it, or because the theory rejects the dissenting "colorblind" perspective on modern equal protection law, it should say so and leave it at that. By instead falsely asserting disparate impact laws are illegitimate and thereby calling for the reversal of decades of precedent - and bipartisan legislation - the right-wing media not only misinform their audience, they also disregard the words of Justice Antonin Scalia in one of the Court's most recent Civil Rights Act cases: "If [disparate impact litigation] was unintended, it is a problem for Congress, not one that federal courts can fix."
Mitt Romney revealed his gender-conscious hiring policies as governor of Massachusetts -- based on "binders full of women" -- during the October 16 presidential debate, a comment that was immediately recognized as an endorsement of affirmative action by several commentators in the media. But The Wall Street Journal editorial page and other conservative media outlets that have harshly condemned such affirmative action policies have yet to fully address Romney's statement.
In Tuesday's debate, an audience member asked the presidential candidates, "[i]n what new ways do you intend to rectify the inequalities in the workplace, specifically regarding females making only 72 percent of what their male counterparts earn?" In response, Romney described his past utilization of inclusive hiring practices, also known as affirmative action:
ROMNEY: Thank you. And -- important topic and one which I learned a great deal about, particularly as I was serving as governor of my state, because I had the -- the chance to pull together a Cabinet and all the applicants seemed to be men. And I -- and I went to my staff, and I said, how come all the people for these jobs are -- are all men?
They said, well, these are the people that have the qualifications. And I said, well, gosh, can't we -- can't we find some -- some women that are also qualified?
And -- and so we -- we took a concerted effort to go out and find women who had backgrounds that could be qualified to become members of our cabinet. I went to a number of women's groups and said, can you help us find folks? And I brought us whole binders full of -- of women. I was proud of the fact that after I staffed my cabinet and my senior staff that the University of New York in Albany did a survey of all 50 states and concluded that mine had more women in senior leadership positions than any other state in America.
Mark Shields of PBS immediately recognized the significance of Romney's statements in post-debate analysis:
MARK SHIELDS: Can I tell you what the lead is -- OK -- what the lead is? Women in binders.
I mean, that is -- that will be the clip that will be seen around the world, Mitt Romney. And the interesting thing about that is, he told the story about the women in his Cabinet, was that was affirmative action. That is affirmative action.
He got all these men. And he said, no, no, can't we find some women? Go out and find some women. That's the definition of affirmative action.
MARK SHIELDS: And I will be interested to see The Wall Street Journal editorial page attack him on that tomorrow.
Like everyone else, I had several good laughs over the GOP candidate's "binders full of women" quote from last night's town-hall debate.
But then I realized that, creepy as that imagery is, the country would be better off if more powerful men took a cue from Romney on this one. He says that, as governor, he made "a concerted effort to go out and find women who had backgrounds that could be qualified to become members of our cabinet." This is a pretty big statement, especially coming from a Republican candidate. We talk a lot about how diversity matters and how equal representation is important. But in most corners of society, especially the upper echelons of power, we haven't figured out the best way to walk that talk. Usually when advocates suggest that we need policies in place to ensure our elected officials and CEOs and college admission boards are making a concerted effort to go out and find women and people of color, all political hell breaks loose. Just look at conversation surrounding the Supreme Court's recent reconsideration of the University of Texas's affirmative action policies.
Watching Romney tout his appointment record at the town-hall debate last night, I couldn't help but feel a little bit proud of him. Seriously! With the binders anecdote, he was essentially describing affirmative action: He realized he needed more diversity in his cabinet, and so he sought out qualified women he may not have otherwise considered. This is laudable. Shocking, even! Especially when you consider that, also in the first year of his governorship, Romney tried to quietly roll back the state's affirmative action laws.
Contrary to Mark Shields' joking "prediction," The Wall Street Journal editorial board has not commented on Romney's support of affirmative action as of this posting, even though it recently called on the Supreme Court to "reclaim [its] constitutional and moral bearings" by rejecting a University of Texas Law School admissions policy which takes race into account in order to promote student body diversity.
The National Review Online also ignored the substance of Romney's debate comments and instead claimed the anecdote was unremarkable, in contrast to their past objection to affirmative action on the basis of both gender and race. National Review Online and The Wall Street Journal should note that Kerry Healey, Romney's Lieutenant Governor from 2003 to 2007 and a current surrogate for his campaign, further told Fox News that the "binders full of women" program amounted to a so-called quota system in which hiring targets were linked to the percentage of women in the Massachusetts population. From America Live:
MEGYN KELLY: He was claiming that he made a commitment to fill his cabinet positions in Massachusetts with more than just men, he said most of the applicants were men, and most of the guys, the candidates were men.
KERRY HEALEY: That's right. The back story here is that a women's organization, a bipartisan women's organization, the Massachusetts Women's Political Caucus, came to both candidates in the race and said if you're elected will you pledge, will you promise to put as many women in your cabinet as there are percentage of women in Massachusetts, which is about 50 percent. Both candidates said yes. So when Governor Romney was elected he set out to fulfill that promise. One thing you can know about Governor Romney is that when he makes a promise while he's campaigning, he's going to fulfill that promise. And so...
MEGYN KELLY: How did the numbers work out?
KERRY HEALEY: 50 percent. And it was the highest in the nation.
A Wall Street Journal editorial asserted the recent federal court decision allowing South Carolina's voter ID law to go into effect in 2013 proved that claims of racial discrimination in voter ID laws are "specious." But the Journal - and other conservative media echoing this claim - fail to note that the court was required to hear the case because of uncontroverted evidence that the voter ID law was initially racially discriminatory. In fact, the South Carolina law was only approved because state election officials have sworn to implement it without racial discrimination.