Fox News is using its lack of knowledge about the Voting Rights Act and basic civil rights law to smear the nomination of Assistant Attorney General for Civil Rights Thomas Perez for Secretary of Labor.
The Voting Rights Act (VRA) and Section 5, a provision within the law that requires jurisdictions with a history of racial discrimination in voting practices to submit election changes for federal review, has been a source of difficulty for Fox News. On the March 14 edition of America Live, Fox News host Megyn Kelly and frequent guest Jay Sekulow attacked Perez by incorrectly describing the role of race in race-conscious civil rights law, such as the VRA. In the lengthy segment about the Voting Section - a Department of Justice (DOJ) section under Perez's supervision - Kelly misrepresented a recent Inspector General report and allowed Sekulow to question Perez's competence even as he mangled civil rights law by insisting the Voting Rights Act is "colorblind."
Contrary to Kelly's false equivalence, the watchdog report she discusses is overwhelmingly critical of the disastrous right-wing politicization of this DOJ section under the Bush administration, which attempted to turn the Civil Rights Division away from decades of precedent upholding race-conscious legislation. Or as Kelly described it in air quotes, away from “traditional” civil rights.
The ensuing friction between long-time civil rights attorneys in the division and these new right-wing ideologues resulted in an exodus of staff that left a legacy of harm the Inspector General concluded still exists. In sum, the report concluded Perez hasn't picked up the pieces fast enough yet.
Sekulow, on the other hand, spent his America Live appearance inaccurately describing voting rights law in his attempt to more directly smear the assistant attorney general.
As the DOJ official in charge of ensuring national compliance with anti-discrimination laws that prevent voter suppression, Perez has drawn the ire of right-wing media for his leadership role in the effective enforcement of the VRA. Since 2010, six of the nine states covered in full by Section 5 passed new voting restrictions and Perez led the Civil Rights Division in curbing racially-based voter suppression in Florida, South Carolina, and twice in Texas.
Right-wing media claims like Sekulow's that Perez is not competent based on DOJ's track record in voting rights enforcement are therefore quite baseless. Not only is Perez's VRA record solid, but the underlying assumption that any lawyer always wins civil rights lawsuits is questionable. Conservative media's insistence in characterizing a South Carolina case where a voter ID law was barred from being used in 2012 as a "smack down" of Perez is perhaps the biggest distortion. This line of attack against Perez demonstrates not only do they not understand the opinion, they don't understand Section 5's essential function as a deterrent.
But Sekulow's biggest source of confusion comes when he fumbles the concept of “race-neutrality” and whether the Civil Rights Division under Perez adhered to it. At first, it appears that Sekulow is using the concept in the sense that DOJ does not pursue voting rights enforcement against black defendants, which is not only inaccurate, but is directly debunked by the report he's talking about.
Sekulow also claims that the report shows Perez reportedly believes the New Black Panther Party non-scandal should not have been investigated as a legal matter because the defendants were black, which is also false. In the report, Perez is explicitly referring to Section 5 when he describes laws “enacted to deal with a particular historical problem of racial discrimination against minorities.” Contrary to Sekulow's accusation, this statement is irrelevant to the NBPP, because the case was not pursued under this provision. Not only are the two black men in question not government entities covered by Section 5, their historical record of voter suppression appears to have been limited to the white Republican poll watchers who complained about them.
Perez did admit in the report an instance when he used “race-neutral” in the vernacular sense in order to signal his commitment to prosecuting impermissible racial discrimination against defendants of any color (the quote Kelly pulls out of context in her segment to suggest the opposite is from an anonymous non-lawyer at DOJ). But, again, the report clearly states Perez clarified that when describing the enforcement of specific race-conscious legislation like Section 5, which requires protecting voters who have historically been victimized by racial discrimination, the “race-neutral” term is inaccurate.
Sekulow claims the VRA's text and “legislative history” say Perez is wrong. If Sekulow has evidence of a 150-year campaign of voter suppression against white men in this country, he should share that with Congress. They have a 15,000 page record of VRA reauthorization evidence from 2006 that shows something slightly different.
Ultimately, Kelly and Sekulow are just pushing the standard right-wing attack against 50 years of civil rights precedent that is built on race-conscious law. In law, “race-neutral” is the alternative to explicitly race-conscious legislation and policy, such as Section 5 of the VRA. As Sekulow reveals when he equates “race-neutral” with “colorblind,” what he really wants is a complete rejection of civil rights precedent, and he's irritated Perez isn't playing along. Instead, it appears DOJ is back to following “traditional” civil rights law, as summarized by Justice Anthony Kennedy:
[The] postulate that "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race," is not sufficient to decide these cases.
The statement by Justice Harlan that "[o]ur Constitution is color-blind" was most certainly justified in the context of his dissent in Plessy v. Ferguson... In the real world, it is regrettable to say, it cannot be a universal constitutional principle.