Fox News and Fox Business are butchering civil rights precedent and the Voting Rights Act (VRA) in their continued campaign to suggest President Obama's nominee for Labor Secretary, Assistant Attorney General for Civil Rights Thomas Perez, doesn't want to protect white people.
Following the pre-existing practice of smearing President Obama and his administration as hostile to whites and biased toward people of color, Fox has joined right-wing media in attacking Perez for his enforcement of long-standing civil rights law and advocacy for Hispanic immigrants. This right-wing campaign against Perez has focused on the Civil Rights Division (CRD), which under Perez's supervision has been very effective at using the VRA to protect historical victims of voter suppression.
Spurred on by Fox hosts Lou Dobbs and Sean Hannity, who claimed Perez's civil rights expertise is “a deep pile of you-know-what” and the CRD under Perez is “racial[ly] hostile” toward whites, frequent right-wing guests J. Christian Adams and Jay Sekulow completely confuse the role of race in race-conscious legislation like the VRA.
Because white voters do not have the same 150-year record of voting victimization, following legislative text and intent in addition to Supreme Court precedent, Section 5 of the VRA - a provision authorized and upheld as a protective measure for historical victims of voter suppression - is used on behalf of voters of color. Other provisions of the Voting Rights Act - such as Section 2 and 11(b) - can be used for current infringements on voting rights and have been enforced by the CRD against black defendants on behalf of white victims. As recounted in a recent Office of the Inspector General (OIG) report, Perez enforced the VRA and its sections in accordance with this well-established understanding and implementation of the law.
For example, under Section 5, Perez led the CRD in successfully curbing state attempts at suppressing voters of color in the last election cycle. Under Section 2 and 11(b), the previous administration initiated VRA cases against black defendants that were not, contrary to right-wing myth, improperly concluded by the Obama administration. In fact, in one of these two cases, the CRD under Perez sought stronger punishment against the black defendant.
Right-wing media continue to misrepresent these facts and are now doing so in their attempts to not only smear Perez, but also argue against civil rights precedent.
When activists like Adams say VRA protections for voters of color “made sense in 1965” but not today, or Sekulow goes further and claims specifically protecting voters of color under the VRA wasn't even appropriate in 1965 because that is not “the way it was designed to be applied,” they are blatantly misrepresenting the text and intent of this law, considered the "crown jewel" of the civil rights movement.
In addition to attacking Perez, Adams and Sekulow, abetted by Fox, are actually arguing for the radical rejection of decades of civil rights precedent, a position that does not currently have the support of a majority of the Supreme Court. This conservative legal campaign has been under way for some time now and may have culminated with the Court's current consideration of the affirmative action case of Fisher v. University of Texas and the VRA case of Shelby County v. Holder.
As reported by Nikole Hannah-Jones of ProPublica, the concept of “colorblindness” at the root of this attempt to overturn civil rights law has been rejected by most constitutional scholars:
At issue is whether the Constitution's equal protection clause, drafted by Congress during Reconstruction to ensure the rights of black Americans, also prohibits the use of race to help them overcome the nation's legacy of racism.
The Supreme Court has never ruled that the Constitution bars any and all laws and government programs that consider race. But [Edward] Blum and his supporters [the backers of the challenges to affirmative action and the VRA], seeing an opening with the current Court, seek to overturn more than a century of precedent.
The true crux of the suit is not [a white student's] failed application, but that government officials violate the constitutional rights of white Americans when they consider race in a way that might help African-Americans and Latinos.
According to Blum, the Constitution sees [race-conscious policy and legislation] and Jim Crow laws as twin evils.
“I don't see the distinction,” he said.
But several constitutional scholars interviewed for this piece dispute this notion. Neil Siegel of Duke University called this interpretation of the 14th Amendment “perverse.” Georgetown law professor Girardeau A. Spann called it “discriminatory.”
While the 14th Amendment doesn't mention race, the drafters went on to pass race-specific legislation aimed at helping former slaves and other black Americans overcome more than a century of racial oppression.
Erwin Chemerinsky, founding dean of the University of California, Irvine School of Law, said that the concept of colorblindness holds great rhetorical appeal but that “there is no basis for concluding that the 14th Amendment equal protection clause requires colorblindness.” In drafting the 14th Amendment, he said, Congress recognized “an enormous difference between a white majority disadvantaging minorities and a white majority acting to remedy past discrimination.”
Conservatives challenging these types of programs purport to champion the legacy of the civil rights movement, [constitutional scholar at the University of California, Berkeley School of Law, Ian] Haney-López said, but the historical roots of their efforts are much more cynical.
“I think that is incredibly important that people realize that today's proponents of colorblindness pretend that they are the heirs to Thurgood Marshall and John Marshall Harlan,” he said. “But that is a lie. They are the heirs of Southern resistance to integration. And the colorblindness arguments that they use come directly from the Southern efforts to defeat Brown v. Board of Education.”