Abandoning any pretense at understanding civil rights precedent or the bipartisan-supported Voting Rights Act (VRA), The Wall Street Journal condemned as “racial mischief” Congress' recent attempt to update this historic law pursuant to the Supreme Court's recent and explicit instructions.
In last year's bitterly split opinion of Shelby County v. Holder, the conservative justices of the Supreme Court gutted the most effective part of the Voting Rights Act - the “preclearance” formula by which jurisdictions with an incorrigible record of voter suppression must submit election changes to federal review before implementation. In his majority opinion, Chief Justice John Roberts invited Congress to "draft another formula based on current conditions."
On January 16, Congress did just that and submitted bipartisan legislation to update the previous formula, which itself was an overwhelmingly bipartisan effort signed into law by former President George W. Bush. In a February 3 editorial, however, the WSJ declared this legislation comparable to the efforts of “Jim Crow era Southerners” and declared “Congress should let it die” :
Never underestimate Congress's ability for racial mischief. In the Jim Crow era Southerners blocked civil-rights progress. Now, 50 years after the Civil Rights Act of 1964, the liberal goal is to give national politicians more power to play racial politics in a few unfavored states.
Democrats and the strange bedfellow of Wisconsin Republican James Sensenbrenner have introduced a bill to revise Section 4(b) of the 1965 Voting Rights Act that the Supreme Court struck down last year. Chief Justice John Roberts wrote that the Act's coverage formula no longer made sense in light of current racial realities, and the new proposal isn't much better.
The good news is that the bill, sponsored by Democratic Rep. John Conyers and Senator Pat Leahy and endorsed in his State of the Union by President Obama, specifically exempts voter ID laws from the actions that could be counted as a demerit against the state's voting-rights record. That's a repudiation of Attorney General Eric Holder's politically motivated campaign against voter ID, and perhaps that's why Mr. Sensenbrenner came on board.
But that concession isn't worth the broader political intrusion that the new proposal would allow. The Voting Rights Act's current provisions still provide ample federal enforcement when local politicians limit minority rights. Federal preclearance was an extraordinary exception to the Constitution's command of equal treatment under the law, and the country's racial progress shows it is no longer needed. Congress should let it die.
The WSJ may be puzzled, but there is nothing “strange” about the fact that conservative Rep. James Sensenbrenner (R-WI) is leading Republican support for the latest renewal of the VRA. Support for the VRA and its preclearance mechanism - including the formula for determining covered jurisdictions - has historically been strongly bipartisan.
Sensenbrenner was the GOP's legislative leader the last time the VRA was reauthorized in 2006, when Congress passed updates to the preclearance formula by majorities of 98-0 in the Senate and 390-33 in the House. As former President Ronald Reagan had done before him with the 1982 reauthorization of the VRA (another bipartisan effort, also involving Sensenbrenner), Bush publicly and proudly signed into law the 2006 preclearance mechanism that Republicans (many still in Congress) overwhelmingly supported. The current bill is specifically crafted to repeat such long-standing bipartisan support, and House Majority Leader Eric Cantor has stated that his “experience with John Lewis in Selma earlier this year was a profound experience that demonstrated the fortitude it took to advance civil rights and ensure equal protection for all ... I'm hopeful Congress will put politics aside, as we did on that trip, and find a responsible path forward that ensures that the sacred obligation of voting in this country remains protected.”
The WSJ not only botches civil rights law history, it also botches the substance of the new amendment.
Attacking the new preclearance mechanism submitted by Congress in the Voting Rights Amendment Act of 2014, the WSJ makes the baseless claim that the “the formula fails to take into account broader racial progress in all of those states.” But this accusation ignores the fact that the updated formula has been specifically crafted to perpetually update itself with current data. Although the WSJ notes the 15-year window through which a jurisdiction's voter suppression will be measured, the editorial fails to recognize that this time period is rolling, not static. Instead, the WSJ rehashes its debunked "correlation-causation fallacy" by pointing to higher voter of color registration numbers - a distraction that is not determinative as to whether or not voter suppression exists.
WSJ's fearmongering about a “discriminatory effect” provision in the new VRA legislation is similarly unhelpful to an evaluation of this collaborative bill, although it is consistent with the editors' past aversion to this highly effective civil rights tool.
For decades, Congress has written these “disparate impact” provisions into civil rights law, a determination that impermissible racial discrimination can be shown through the disproportionate and unjustified effect of supposedly race-neutral laws. The editors of the WSJ may have a well-known aversion to this longstanding statistical analysis, but disparate impact provisions are currently permissible under Congress' powers to enforce the Fourteenth and Fifteenth Amendments to the U.S. Constitution. Even conservative Justice Antonin Scalia reaffirmed such Congressional authority to curb discriminatory effects in the 2010 case of Lewis v. Chicago.
In its conclusion that the VRA legislation should “die” because "[f]ederal preclearance was an extraordinary exception to the Constitution's command of equal treatment under the law," the WSJ also misunderstands the conservative majority opinion in Shelby. The “equal treatment” recognized in Shelby is one between states, and although the conservative justices may have reinterpreted this concept beyond its original reference to "the terms upon which States are admitted to the Union," this new and radical concept of “equal sovereignty” was characterized by the Chief Justice as an unwritten "tradition" - not an inviolate constitutional “command.”
Luckily, unlike the WSJ, the bipartisan partnership in Congress is more practiced in civil rights law. More importantly, it is Congress that is explicitly tasked under the Constitution with protecting voting rights from racial discrimination and gauging subsequent “racial progress.”
Today's misinforming editorial was another reminder why.