This morning, the Supreme Court decided 5-4 that a central piece of the Voting Rights Act of 1964 (or VRA) is unconstitutional.
Pretty much anyone who cares about equality has called the decision a travesty. But the person who has written the most excoriating take-down of the Justice's faulty reasoning is their colleague and American hero, Ruth Bader Ginsburg.
The VRA laid out the legal groundwork for fighting the race-based voter discrimination that plagued many parts of America since the end of the Civil War. A piece of the federal policy maps out areas of the country—including much of the South and parts of California—that have a history of racial discrimination and requires the federal government to review all new election laws in those areas before they're enacted just to make sure they won't lead to discrimination. This is the part of the law that five conservative Supreme Court justices decided is unconstitutional.
The justices who decided in favor of gutting the act make the classic "post-racial" America argument: Things aren't perfect now, but they're certainly much less racist than they were in the sixties. Look! African-Americans vote much more now than they used to and Southern states have elected some people of color. Therefore, racism is no longer a problem. The federal government needs to butt out.
Ginsburg calls bullshit on this in her brilliant dissent, written on behalf of herself and the three other justices (Justices Kagan, Breyer, and Sotomayor) who sided in favor of keeping the VRA intact. Racism has become less obvious, writes Ginsburg, but it hasn't disappeared—racial bias continues to infect our systems and institutions in insidious ways.
Her dissent is a take-down that should be required reading for anyone who claims America has moved past race.
The justices who argue that the VRA is unconstitutional use say that evidence of voting discrimination is outdated. Pointing to stats that show voter registration among white and African-American citizens in the South is now almost equal, the justices argue that it's not fair that certain parts of the country should be subject to federal oversight just because they used to be racist.
As they write:
"In 1965, the States could be divided into those with a recent history of voting tests and low voter registration and turnout and those without those characteristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were."
The justices then compare the days of the Civil Rights movement to the quieter times of today. Their argument recalls "Bloody Sunday" in Selma, Alabama in 1965, when police used tear gas and beat nonviolent civil rights protesters and the 1964 "Freedom Summer" when three men registering voters in Mississippi were murdered. Now, they write, both areas have elected African-American mayors.
Ginsburg throws the idea that Alabama's racism has been solved back in the faces of the court.
Her dissent notes that although things have improved in Alabama since Dr. Martin Luther King Jr's march to Selma, in recent years, Alabama was found to have denied the voting rights "on account of race or color" more frequently than any other States in the Union, besides Mississippi, which is also singled out by the VRA.
We don't see the firehouses and batons in Selma today, but Ginsburg spells out the "second-generation barriers to voting," that show how racism isn't due to one bad police department, but an entire political system built and sustained by white people who want to keep power.
"The evolution of voting discrimination into more subtle second generation barriers is powerful evidence that a remedy as effective as preclearance remains vital to protect minority voting rights and prevent backsliding," explains Ginsburg.
In other words: the election of African-American mayors in Alabama does not mean the people in charge of the voting system have stopped systematically discriminating against people of color.
Ginsburg lists out numerous examples of local Alabama districts trying to subvert federal law to create "monolithic white voting blocks" for the sole purpose of "minimizing future black voting strength." One example she mentions is an FBI investigation in 2008 that secretly recorded legislators and their allies discussing how to keep a certain measure off the ballot, because if it went to a vote, "'every black, every illiterate' would be 'bused [to the polls] on HUD financed buses.'"
Ginsburg goes on to point out that anyone in the country can file a complaint that they have been discriminated against during an election. If the areas singled out for federal oversight really had improved, then the rate of voters complaining about discrimination should be relatively equal across the country, right?
Instead, a 2005 study found that racial discrimination complaints in voting remains concentrated in the very areas called out by the 1965 law for special attention. While those districts account for only 25 percent of the country's population, they're home to 56 percent of the nation's successful discrimination-in-voting lawsuits.
So instead of disappearing, the look and impact of racism in America has changed, as shown by numerous complaints and lawsuits, the disenfranchisement of felons, and the spread of voter ID laws.
But the anti-VRA contingent on the court says it's high time for Congress to go back and look for new data to rewrite the law.
In response, Ginsburg points out that in 2006, Congress had to decide whether to renew the Voting Rights Act, nix the law, or change it. Congress held months' worth of hearings and assembled a 15,000-page report. Their conclusion: Yep. Racism is still a problem in our political process. In a notoriously partisan Congress, the voting rights act reauthorization passed by 390-33.
Demanding a record of racial discrimination as bad as the situation in 1964 is an impossible "catch-22," says Ginsburg. If the law was working, there would be less evidence of discrimination, so opponents can argue that it doesn't need to be renewed. In contrast, if the law wasn't working, there would be plenty of evidence of discrimination, but no reason to renew a law that doesn't work.
The dissent points out a couple real examples of this new kind of discrimination that that VRA stopped in its tracks:
- In 2001, the mayor and all-white five-member Board of Aldermen of Kilmichael, Mississippi, abruptly canceled the town's election after "an unprecedented number" of African-American candidates announced they were running for office.
- In 2006, this Court found that Texas' attempt to redraw a congressional district to reduce the strength of Latino voters bore "the mark of intentional discrimination" and ordered the district redrawn.
- In 1993, the City of Millen, Georgia, proposed to delay the election in a majority-black district by two years, leaving that district without representation on the city council while the neighboring majoritywhite district would have three representatives.
These are just three of numerous examples of systemic discrimination.
"A governing political coalition has an incentive to prevent changes in the existing balance of voting power," explains Ginsburg, in her best PoliSci 101 voice. "When voting is racially polarized, efforts by the ruling party to pursue that incentive will inevitably discriminate against a racial group. Just as buildings in California have a greater need to be earthquake proofed, places where there is greater racial polarization in voting have a greater need for prophylactic measures to prevent purposeful race discrimination."
When all other words fall short, Ginsburg quotes Shakespeare. "The Court criticizes Congress for failing to recognize that 'history did not end in 1965.' But the Court ignores that 'what's past is prologue,'" she writes, citing The Tempest, then quotes George Santayana: "Those who cannot remember the past are condemned to repeat it."
Sadly, Shakespeare was right. Just two hours after the Supreme Court issued its decision, Texas moved to roll out voter ID laws that have been proven to discriminate against Latino voters.