The bigots are winning—and they have enlisted the U.S. Supreme Court.
As Eli Mystal of the Nation puts it, Bigots have finally accomplished their goal of gutting the Voting Rights Act” with its recent decision upholding two voter suppression laws in Arizona in Brnovich v Democratic National Committee.
Mystal explains that this has been the conservative project since the 15th Amendment was ratified in 1870. And it matters not whether the conservatives called themselves Democrats (for much of this history) or Republicans (in the last couple of generations).
The 15th Amendment provided the constitutional right of Blacks to vote. But conservatives effectively blocked that right for many Blacks for a century—until the Voting Rights Act of 1965 (VRA).
A confluence of ideas about race and civil rights developed in the 1960s: importantly, national politicians and civil rights leaders agreed with sociologists that intent was irrelevant in the social world. Social processes do not depend on the workings of someone’s psychology. With that seldom spoken understanding, the civil rights bills of the 1960s were primarily concerned with “disparate impact.” Disparate impact occurs when policies, practices, rules, or other systems that appear to be neutral result in a disproportionate impact on a protected group. For example, the disparate impact would signal if an action was racial discrimination. This is consistent with sociological analysis of social processes.
The VRA worked for 48 years until the U.S. Supreme Court (SCOTUS) started gutting it. The critical part of the VRA was that it required specified jurisdictions to get Justice Department approval before making changes in their voting procedures, less they return to racially-biased voter suppression. In Shelby v Holder in 2013, Chief Justice Roberts took full advantage of his position to lead the Court against the VRA and write the opinion that gutted the preclearance provisions of the Act.
Section 5 of the VRA, the preclearance provision, was gutted in 2013; however, civil rights lawyers thought they could hold back the tide of these voter restriction laws by the provisions of Section 2 of the VRA, which states:
“No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.”
However, in its recent Brnovich decision written by Justice Alito, SCOTUS abolished Section 2.
At issue in the case were two Arizona laws: one banned the collection of absentee ballots by anyone other than a relative or caregiver. The other threw out any votes cast in the wrong precinct. A federal appeals court struck down both provisions, ruling that they had an unequal impact on minority voters and that there was no evidence of fraud that would have justified their use.
SCOTUS reversed the decision of the Court of Appeals. And in a move that conservatives have pushed since the 1960s, Justice Alito reasserted the importance of “intent,” this despite the Congress in 1982 making it clear that “results” alone (impact) could lead to liability. Justice Kagan, who wrote the dissent, said that the Senate Report on this bill in 1982 included the argument that the intent test “asks the wrong question.” The Report stated that if minority citizens “are denied a fair opportunity to participate, the system should be changed, regardless of what motives were in an official’s mind.”
In 2001 in a decision written by the late Justice Scalia in Mobile v Bolden, SCOTUS dealt a blow to civil rights by outlawing some—but not all–of the disparate impact considerations. To protect the VRA, Congress added language about “the totality of circumstances” to keep disparate impact relevant for Section 2.
The SCOTUS opinion admits a disparate impact but argues that it is too minor to matter. In other words, they have provided limits on what is racism. This new definition is insulting.
“The majority’s opinion mostly inhabits a law-free zone,” wrote Justice Kagan. But it is not politics-free. The six conservative Justices sign on to the current Big Lie about voter fraud by saying a State must be vigilant and legislate against it–when the data say fraud does not exist.
