Doug Kendall, founder of the Constitutional Accountability Center, wrote recently about "the deafening silence from conservative constitutional scholars" on a case before the U.S. Supreme Court in which Shelby County, Alabama is seeking to strike down Section 5 of the Voting Rights Act.
Now, that silence is broken. As Kendall explains here, an illustrious bipartisan group led by Dick Thornburgh, Attorney General under Presidents Ronald Reagan and George H.W. Bush, has issued an amicus brief that rather rudely destroys a previous brief arguing against the Voting Rights Act. The first brief was sent to the Supreme Court by a group of conservative Republicans, including Hans von Spakovsky, Chuck Cooper, and Roger Clegg, complaining that the Voting Rights Act, which requires the Justice Department to approve laws that would negatively impact the ability of people of color to vote, was getting in the way of their electoral strategy.
The bipartisan response reads:
The Voting Rights Act is hailed across the political spectrum as the crown jewel of American liberties and a monumental legislative accomplishment. Congress recently reenacted it with overwhelming majorities. Like any statute, it is not vulnerable to challenge on the basis of baseless speculation about potential misinterpretation or wrongful enforcement.
Far from raising constitutional concerns, the recent enforcement of Section 5 demonstrates its continued necessity and vitality. Recent preclearance denials include a jurisdiction with a large Hispanic population seeking to abandon professional Spanish translations of its election materials and reduce the number of bilingual poll workers; a state’s program purportedly designed to strike non-citizen voters from its voter rolls under a method disproportionately striking African-American and Hispanic citizens registered to vote; and a municipality that rescheduled its elections from high-turnout November to low-turnout July just as African Americans reached a majority of the voting-age population.
Petitioner’s amici ignore this record. Instead, they mischaracterize the Justice Department’s enforcement record with respect to voter ID laws and speculate that the Department will require minority-maximization redistricting. Contrary to amici’s assertions, when evaluating voter ID laws, the Justice Department has acted consistently with this Court’s holding in Crawford v. Marion County Election Board, 553 U.S. 181 (2008), focusing on the burden the law imposes on prospective voters and any provisions aimed at mitigating that burden.
If a matrix of laws designed to prevent minorities from voting is all that is needed to ensure white conservative rule, why didn't they think of it earlier? Oh, wait a second, they did.
Voter suppression was the centerpiece of the blood-drenched Jim Crow Era. After the Reconstruction Era had seen African American voter participation soar to 70%, voter suppression tactics such as "literacy" tests, poll taxes, violent thugs guarding polling places, and terrorists wearing hoods bought about a 100 years of white supremacy, based on electoral outcomes ensured by who was allowed to vote, and who was not.
White conservatives brutalized themselves back into power, but toward what end? The laws made by legislative bodies elected in this fashion were responsible for segregated schools and rest rooms, and a system of institutionalized racism that, yes, kept African Americans down, but also kept the rest of the world out. When immigrants and other job creators came to our shores, they steered clear of the segregated South, depriving it of the economic benefits of immigration.
The Voting Rights Act, and other laws passed during and since the Civil Rights Era, have started to change all of that. With their diversifying populations, southern states are also catching up to the rest of the nation in terms of innovation and economic growth.
So why, in the past four years, have we seen this panicked rush to change voting laws to disadvantage minorities? No doubt, there were extremists in America BEFORE President Obama was elected in 2008. But up until that election, principled conservatives had always blocked their path. In 2006, for instance, the Voting Rights Act was reauthorized with broad bipartisan support and signed by President G. W. Bush in a ceremony attended by Republicans and Democrats alike (do you recognize any in this photo?). Bush said that day:
The Voting Rights Act that broke the segregationist lock on the ballot box rose from the courage shown on a Selma bridge one Sunday afternoon in March of 1965. On that day, African Americans, including a member of the United States Congress, John Lewis marched across the Edmund Pettus Bridge in a protest intended to highlight the unfair practices that kept them off the voter rolls.
The brutal response showed America why a march was necessary. When the marchers reached the far side of the bridge, they were met by state troopers and civilian posse bearing billy clubs and whips -- weapons they did not hesitate to use. The images of policemen using night sticks on peaceful protestors were carried on television screens across the country, and they stung the conscience of a slumbering America.
So what's changed? What is it that hyper-partisans on the right find so hard to accept about the last few elections? Why must they reject the outcomes as "cheating?" Do they not believe that minority communities are growing? Do they not believe that, in this age of aggressive attempts to codify racism into our laws, minorities are registering to vote and voting in larger numbers? Do they not believe that increasing numbers of white Americans are rejecting the politics of division, such that ploys to foment racial antagonism provide limited upside and may even backfire? Or do they simply reject the right of We the People to elect a government that represents our interests, now that a politically significant number of us are non-white?
But most importantly, when will principled conservatives serving in the U.S. Senate, in the U.S. House, and in governors' mansions come forward to denounce this desperate, radical attack on voting rights breaking out like a rash across America?
Here is a complete list of signatories to the amicus brief quoted above:
Dick Thornburgh served as Attorney General from 1988-1991, under Presidents Ronald Reagan and George H.W. Bush. Preceding that service, he was Governor of Pennsylvania from 1979-1987.
Drew S. Days, III, served as Solicitor General from 1993-1996. He also served as Assistant Attorney General for Civil Rights from 1977-1980.
John R. Dunne served as Assistant Attorney General for Civil Rights from 1990-1993.
Bill Lann Lee served as Assistant Attorney General for Civil Rights from 1997-2001. Since his government service, he has chaired the bipartisan National Commission on the Voting Rights Act.
J. Stanley Pottinger served as Assistant Attorney General for Civil Rights from 1973-1977.
Paul F. Hancock served in the Civil Rights Division of the Justice Department for 27 years, including as director of the Voting Rights Act litigation program and later as Acting Assistant Attorney General for Civil Rights.
James P. Turner was an attorney in the Civil Rights Division from 1965-1994. He served as Deputy Assistant Attorney General for Civil Rights from 1969- 1994, and as Acting Assistant Attorney General for Civil Rights from 1993-1994.
William R. Yeomans served in the Justice Department from 1978-2005, with 24 years in the Civil