"Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet."
U.S. Supreme Court Justice Ruth Bader Ginsburg, dissenting in the voting rights case Shelby County vs. Holder.
First things first. On last week's court opinion striking down a key part of the Defense of Marriage Act: Wow. What a watershed moment for civil rights.
But as Ginsburg's quote suggests, there is rain on this gay pride parade. By eviscerating the Voting Rights Act of 1965, the court produced a major storm cloud.
Married gays and lesbians should enjoy their new raft of federal benefits — Social Security survivorship benefits, added federal employee perquisites, etc. Just remember, for gay and straight alike, government benefits and protections are only as secure as the next federal election. And the Supreme Court's voting rights case decided Tuesday makes it harder for progressive and minority candidates to win.
Chief Justice John Roberts' majority opinion blames Congress for the court's decision to neuter the preclearance enforcement mechanism in the Voting Rights Act. It's an understandable feint. Who wouldn't try to deflect blame for dismantling the most effective tool against election bias in the nation's history?
You would have to be intentionally blind, as Roberts and Co. choose to be, not to see the ongoing danger to minority voting strength in the vast majority of the nine states and dozens of localities — mostly in the South — subject to preclearance before Shelby County.
Texas, a preclearance state, already announced that it was putting into effect a strict voter ID law that federal judges in Washington had blocked as an example of "intentional discrimination" against minorities.
Under preclearance, states such as Alabama, Georgia, Mississippi and Louisiana, with an ignoble history of racial animus in voting, were required to get changes pre-approved by the federal government. But Roberts redeemed them all in one swoop (including five counties in Florida), freeing them of federal oversight because Congress had failed to take account of "current conditions."
Really? In its 21 hearings and 15,000-page legislative record on whether to reauthorize the law in 2006, Congress missed that bit?
Not at all. Congress recognized there has been significant progress on voting rights in the South, largely because of preclearance under the Voting Rights Act. It knew there were flaws in the preclearance formula, with under-inclusiveness and overinclusiveness issues, but Congress renewed it as an essential tool to prevent backsliding.
Among the "current conditions" Congress considered, Ginsburg's dissent points out:
• Between 1982 and 2006, the Justice Department blocked more than 700 voting changes in preclearance jurisdictions, a majority of which were "calculated" to keep minority voters from participating in the political process.
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• And nearly four times as many successful lawsuits finding discriminatory voting practices occurred in preclearance jurisdictions than in the rest of the country.
Under the law's escape valve, nearly 200 jurisdictions have been released from preclearance requirements by demonstrating compliance for 10 years. This is not a law frozen in time, as Roberts implies.
Huge obstacles still exist that make it harder for African-Americans and Hispanics to vote in places where Republicans are the ruling party and voting patterns are highly racially polarized, which they disproportionately are in preclearance states and counties.
Discrimination takes subtler forms now, such as state-issued voter ID requirements that poor people have a hard time meeting, but the result is the same.
Roberts, who was on the losing side of the DOMA case, has sacrificed historic voting protections and the court's reputation. The result could be a more conservative Congress down the road that would be less receptive to progressive federal benefits for all.