Fox's Andrew Napolitano ignored the Voting Rights Act's recent history of protecting voters from racially discriminatory measures to celebrate the Supreme Court's decision to strike down one of the Act's key provisions.
On the June 25 edition of Fox News' America Live, Fox senior legal analyst Andrew Napolitano discussed a Supreme Court decision to strike down Section 4 of the Voting Rights Act. The section established a flexible formula for demonstrating voter suppression among jurisdictions that then required those areas to “pre-clear” changes to voting laws with the Department of Justice. Napolitano applauded the decision, citing the Court's opinion that the section “worked so well” that “the procedure is not necessary anymore. The conditions that caused Congress to create that procedure have been eradicated by the procedure.” When host Megyn Kelly pointed out criticism from civil rights leaders to the decision, Napolitano responded, “It would have been a major setback had this been invalidated in 1965 when it was enacted, but no one is seriously complaining today”:
Despite Napolitano's claims to the contrary, the Voting Rights Act has continued to protect voters from discriminatory voting changes. Legal analyst Andrew Cohen criticized the decision in a post at The Atlantic, noting that Section 4 was “invoked more than 700 times between 1982 and 2006 to block racially discrimination [sic] voting measures.” A Mother Jones article quoted Justice Ruth Bader Ginsburg who, in her dissent to the decision, pointed out “eight examples of race-based voter discrimination in recent history” such as:
“In 1993, the City of Millen, Georgia, proposed to delay the election in a majority-black district by two years, leaving that district without representation on the city council while the neighboring majority white district would have three representatives...DOJ blocked the proposal. The county then sought to move a polling place from a predominantly black neighborhood in the city to an inaccessible location in a predominantly white neighborhood outside city limits.”
In remarks responding to the decision, Attorney General Eric Holder also pointed to recent cases in which voters were protected from voting law changes thanks to Section 4:
Last year, a federal court cited the value of the Voting Rights Act in blocking the Texas congressional redistricting map on the grounds that it discriminated against Latino voters. In that case, the court noted that the parties “provided more evidence of discriminatory intent than we have space, or need, to address here.” The federal court that reviewed South Carolina's photo ID law also noted the “vital function” that the Voting Rights Act played in prompting the state to change how it will implement the statute in future elections so that it would no longer disproportionately impact black voters. Without the Section 4 coverage formula, neither of these discriminatory voting changes would have been subject to review and both could have been implemented immediately.
An amicus brief filed by parties that include Rep. James Sensenbrenner (R-IL) and Rep. John Conyers (D-MI) called the Voting Rights Act “one of the most successful civil rights statutes in American history.” The brief explained that in a 2006 hearing on the VRA's reauthorization, the House Judiciary Committee “requested, received, and incorporated into its record eleven reports documenting the continuation of discrimination after 1982 in covered jurisdictions”:
One of the reports, for example, detailed nearly 300 cases of voting discrimination.
The vast evidence of ongoing discrimination in the record shows that covered jurisdictions continue to deny minority voters full and effective participation in the political process with a variety of techniques, including discriminatory annexations, de-annexations, and consolidations; redistricting plans' and polling relocations.
The 2006 congressional record is replete with examples of discrimination. Limited space constrains amici to highlighting only a few representative examples of the persistent discrimination Congress confronted.