Ironically, the furor over voter ID will make it hard for Supreme Court conservatives to justify striking down one of the Act's key provisions.
One year ago, maybe even six months ago, conventional wisdom had it that a key provision of the Voting Rights Act was in jeopardy, susceptible to another aggressive ruling by a very conservative United States Supreme Court. The five Republican-appointed justices would rule, the theory went, that there was no longer a need for local lawmakers to "pre-clear" voting laws or gerrymanders with federal officials, because Section 5 of the Voting Rights Act had been so successful since its implementation that it was no longer necessary to protect minority rights.
Justice Clarence Thomas, a black man who grew up in Georgia, one of the states "covered" by the Voting Rights Act because of its long history of racial discrimination, said so himself just a few years ago. In Northwest Austin Municipal Utility District v. Holder. a 2009 decision in which the Court uneasily upheld the Voting Rights Act, Justice Thomas declared, as the lone dissenter, that:
The extensive pattern of discrimination that led the Court to previously uphold §5 as enforcing the Fifteenth Amendment no longer exists. Covered jurisdictions are not now engaged in a systematic campaign to deny black citizens access to the ballot through intimidation and violence. And the days of "grandfather clauses, property qualifications, 'good character' tests, and the requirement that registrants 'understand' or 'interpret' certain matter," are gone. There is thus currently no concerted effort in these jurisdictions to engage in the "unremitting and ingenious defiance of the Constitution," that served as the constitutional basis for upholding the "uncommon exercise of congressional power" embodied in §5 [citations omitted by me].
So when a live challenge to Section 5 was turned back this May by the D.C. Circuit Court of Appeals, when the judges there noted the provision's viability in yet another decade of election strife, many people reckoned the Court would take the case styled Shelby County v. Holder, overturn the lower court, and narrow or strike down outright the contested statutory provision. These folks may yet be proven right. The Supreme Court still has not decided whether it will accept for review the Shelby County (Alabama) case. We should know in about a month.
MORE ON THE VOTING RIGHTS FIGHT
But whether the Court does or does not seek to re-enter this battlefield, none of the justices, including Justice Thomas, will be able to say with a straight face that Section 5's usefulness has come and gone. Over and over again in the past few months, in states covered (Texas, Florida, and South Carolina) and not covered (Ohio, Wisconsin, and Pennsylvania) by the Voting Rights Act, the statute has been cited, and relied upon, to successfully block partisan voting laws designed to make it harder for minorities to vote or to have their votes counted.
The image of the statute's usefulness -- its necessity, really -- has been bolstered by zealous GOP lawmakers (and their ALEC sponsors) who have overreached with new voter ID, early voting, and registration laws. The purpose of the laws, the legislative history that preceded them, and the trial testimony that followed them, vitiate the argument that "patterns" of official racial discrimination no longer exist. Yes, the laws on their face are racially neutral. But, as one court after another has noted, the laws' disparate impact upon minority voters is clear.
So Justice Thomas can no longer say, even in a lone dissent, that "covered jurisdictions" under Section 5 "are not now engaged in a systematic campaign to deny black citizens access to the ballot" or that there are "currently no concerted effort in these jurisdictions to engage in the 'unremitting and ingenious defiance of the Constitution.'" For what are these new state voting laws but "unremitting and ingenious" efforts by Republican lawmakers to make it harder, or impossible, for some registered voters to vote?
What else do you call restrictive voting laws that do not prevent the problem (in-person voter fraud) that they purport to prevent? What else do you call restrictive laws that are enacted by legislators who believe that the ill and the elderly, the poor and the dispossessed, who do not have new state-issued photo identification cards, are "lazy" for failing to get them? What else do you call restrictive voting laws whose sponsors proclaim in public that they are designed to ensure election success for one candidate over another?
These laws are "ingenious" in the sense that they are based upon a lie -- the lie that registered voters don't already have an obligation to identify themselves when casting an in-person ballot. The vast majority of those registered voters who would have been disenfranchised by these measures without Section 5 haven't been voting illegally or inaccurately over the decades. Instead, they've shown up at polling stations, proven who they are to the satisfaction of election officials, and then voted. They already do show ID.
These voter suppression laws also are "ingenious" because they are effectively a poll tax without saying so. A poll tax not only in the sense that they require registered voters to spend money to obtain a new state document they've never before needed, but also in the sense that they require these voters to undertake an effort to do so. The laws divide America into the car-driving faction (who already have a state photo ID) and the non-car-driving faction (who do not). Guess which voting group is more likely than the other to vote against Republicans?
Justice Thomas is right about one thing. In America's voting wars this year there has been no violence, at least not yet. Gone are the marches and the dogs and the fire hoses. Let's hope it stays that way through November 6th, and especially on that day, when some citizens try to stop other citizens from voting. It all depends, I suppose, upon what your definition of voter "intimidation" is. Want to bet Justice Thomas defines it differently than, say, Rep. John Lewis, the Georgia Democrat, battered and bruised icon of the civil rights movement?