[EL] My op-ed on Shelby in the Wall St J.

[Rick Hasen]

For copyright reasons, please do not post the full text of articles from 
newspapers (especially the Wall St. Journal, which cares a lot about 
things) on the election law listserv.
Thanks.


Rick Hasen
hasenr at gmail.com

On 6/27/13 5:28 AM, James Grimaldi wrote:
>
>   * Here you go. (pasting and emailing does not necessarily mean an
>     endorsement.) -- JVG
>
>
>   A Vindication of the Voting Rights Act
>
>
>     The Supreme Court's ruling in Shelby County will help black
>     political aspirations.
>
>
>  *
>
>
>
>   * OPINION
>     <http://online.wsj.com/public/search?article-doc-type=%7BCommentary+%28U.S.%29%7D&HEADER_TEXT=commentary+%28u.s.>
>   * June 26, 2013, 7:28 p.m. ET
>
>
>
>
>
>
>
>
>   * By ABIGAIL THERNSTROM
>
>  *
>
>
> The Supreme Court did itself proud on Tuesday when it struck down 
> Section 4 of the Voting Rights Act. That is the provision of the law 
> containing the formula that determined which jurisdictions should be 
> kept in the penalty box for suspected discrimination—even after nearly 
> half a century of dramatic and heartening racial progress. While 
> passage of the 1965 act marked the death knell of the Jim Crow South, 
> the elimination of one of the act's obsolete provisions this week 
> reflects the progress since.
>
> With the court's decision in /Shelby County v. Holder/, the "covered" 
> jurisdictions (mostly in the South) are free at last to exercise their 
> constitutional prerogative to regulate their own elections. In killing 
> Section 4, the court made unenforceable the preclearance provision in 
> Section 5 of the act that required certain states and jurisdictions to 
> obtain Justice Department permission for any laws or actions related 
> to voting. So "covered" jurisdictions are no longer covered by Section 
> 4, and the requirement that they get federal approval before even 
> moving a polling place across the street is dead.
>
> image
> image
> AFP/Getty Images
>
> The civil rights community is up in arms over /Shelby/. Get ready for 
> pressure on Congress to respond. But what could lawmakers do? Restore 
> federal powers to review all proposed changes in election 
> procedure—with the burden of proving an absence of discrimination on 
> the jurisdiction itself, as was the case in pre-/Shelby/ law? In 
> theory, Congress could just use the original formula and update it 
> with data from the 2012 elections. The problem: Members of Congress 
> would not like the result.
>
> In 2012, no state in the Union had a total voter turnout rate, for 
> whites or minorities, under 50%—a figure that was the heart of the old 
> formula. The turnout in the six states covered entirely by Section 5 
> was well above the national average. Mississippi, once the worst of 
> the Jim Crow states, had the highest total turnout rate in the nation.
>
> Civil-rights advocates today want states like Ohio subject to 
> preclearance. It is very doubtful, though, that any American voters 
> will be happy if their city or country or state government has to get 
> permission from federal authorities, for instance, to alter the hours 
> that polling places are open. And do voters trust the Justice 
> Department to govern with a light hand any more than they trust the 
> IRS? Seems doubtful.
>
> The court's ruling Tuesday will benefit black America. Enforcement of 
> the statute—including the imposition of "safe" black (and Hispanic) 
> legislative seats as a remedy for discrimination—has herded black 
> voters into what even North Carolina Democrat and Congressional Black 
> Caucus member Rep. Mel Watt once called "racial ghettos." Rep. Watt 
> was referring to race-based districts that have generally rewarded 
> minority politicians who campaign (and win) by making the sort of 
> overt racial appeals that are the staple of invidious identity politics.
>
> The black candidates who ran in such enclaves never acquired the 
> skills to venture into the world of competitive politics in 
> majority-white settings. They were thus thrust to the sidelines of 
> American political life—which is precisely what the statute did not 
> intend. In this sense the law became a brake on minority political 
> aspirations.
>
> In his majority opinion, Chief Justice John Roberts described the 
> purpose of the 15th Amendment—which forbids government at any level to 
> deny voting rights to citizens based on race—as ensuring a better 
> future. But the safe minority districts are not that better future. 
> These districts once served the purpose of protecting black candidates 
> from white competition when Southern whites would not vote for black 
> candidates. But times have changed, and whites now vote for black 
> candidates at every level of government.
>
> The Section 4 coverage formula ignores current political conditions, 
> Chief Justice Roberts wrote: "No one can fairly say that it shows 
> anything approaching the 'pervasive,' 'flagrant,' 'widespread,' and 
> 'rampant' discrimination . . . that clearly distinguished the covered 
> jurisdictions from the rest of the Nation" in 1965. He also cited the 
> dramatically increased figures on black turnout and registration, as 
> well as black office-holding.
>
> In enforcing the Voting Rights Act, Congress, the Justice Department 
> and the courts have coped with the question of when decisions about 
> electoral matters can be trusted to elected representatives by 
> ignoring racial progress. Blacks, they have implied, live in a world 
> in which the clock has almost stopped.
>
> The issue of racial change has long sharply divided right and left, on 
> the bench and off. Justice Sonia Sotomayor 
> <http://topics.wsj.com/person/S/Sonia--Sotomayor/1637> is too young 
> ever to have witnessed the horrors of the South before the great civil 
> rights acts of the mid-1960s. Yet, in the oral argument in /Shelby/, 
> she questioned the whole notion that race relations in the region have 
> been transformed.
>
> Whatever the rates of black political participation in a covered 
> jurisdiction, however many blacks are elected to legislative office, 
> the liberals on the court were not likely to be satisfied. In the oral 
> argument, a skeptical Justice Stephen Breyer drew an analogy between 
> the problem of voting discrimination and a state whose crops had a 
> plant disease in 1965. But "the disease is still there." No 
> statistical evidence could possibly convince him that what he believed 
> to be true was in fact false.
>
> Justice Roberts gave full credit to the 1965 law for the progress he 
> noted. The Voting Rights Act "has proved immensely successful at 
> redressing racial discrimination and integrating the voting process," 
> he said. It was an important statement—an acknowledgment of the 
> efficacy of the act in the years it was so badly needed.
>
> As for the coverage formula of Section 4—which was originally only 
> supposed to last five years—the justice made clear that even if it 
> could no longer be justified, it should never be forgotten. In 1965, 
> Southern blacks were still in political chains, and the hold of whites 
> on political power made all other forms of racial subjugation 
> possible. It was part of a law that was an indispensable, beautifully 
> designed and effective response to a profound moral wrong—Southern 
> black disfranchisement that persisted 96 years after passage of the 
> 15th Amendment.
>
> Justice Roberts's opinion for the court is a celebration of the Voting 
> Rights Act—and of a nation that made it work and outgrew its 
> most-radical provisions.
>
> /Ms. Thernstrom is an adjunct scholar at The American Enterprise 
> Institute and vice-chairwoman of the U.S. Commission on Civil Rights. 
> She is the author of "Voting Rights—and Wrongs" (AEI Press, 2009)./
>
> A version of this article appeared June 27, 2013, on page A21 in the 
> U.S. edition of The Wall Street Journal, with the headline: A 
> Vindication of the Voting Rights Act.
>
>
>
> On Thu, Jun 27, 2013 at 9:09 AM, Abigail Thernstrom 
> <thernstr at fas.harvard.edu <mailto:thernstr at fas.harvard.edu>> wrote:
>
>
>             Me on Shelby in the WSJ.
>
>     http://online.wsj.com/article/SB10001424127887323873904578569453308090298.html?mod=ITP_opinion_0
>
>             Rick, would very much appreciate it if you could post.
>
>             (My little Mac Air in badly wounded condition, so using
>     old laptop and my Harvard email address, which it recognizes.)
>
>             thanks for posting!
>
>             all best, Abby
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