Voting Rights Act

Jeffrey Rosen’s op ed piece in the New York Times over the weekend, The Trial of John Roberts, echoes a theme noted by a number of commentators, one on which I posted last week: that the Supreme Court’s decision to open up long-settled law with respect to regulating corporate expenditures in candidate elections in the recently argued Citizens United case is a quintessential exercise in judicial activism. And it’s the kind of judicial activism that then nominee John Roberts pretended to foreswear through his claims to be an umpire, simply calling balls and strikes.  

Where I part company from Rosen, however, is in his analysis that Chief Justice Roberts “deserves credit for trying” to forge a broader consensus on narrower grounds, citing, in particular, last term’s Voting Rights Act case.  The cynic in me says that the decision was 8-1 to uphold Section 5 of the Voting Rights Act and not 5-4 to overturn it, because the Chief Justice simply did not yet have the votes to do so. And Rosen’s reliance on greater unanimity on the Court with respect to upholding business interests – according to the Chamber 79% of these cases decided on margins of 7-2 better – is not, in my view, a reflection of Chief Justice Roberts’ forging consensus on narrow grounds. It’s a reflection of how conservative this Court really is, why the judicial philosophy of the next nominee to the Supreme Court really matters, and why it’s important to begin having that discussion now.

This morning the Supreme Court heard oral argument in the case of Northwest Austin Municipal Utility District Number One v. Eric Holder, a case involving a small municipal district in Austin, Texas seeking to invalidate a key provision of the Voting Rights Act of 1965 - one of the most important civil rights laws in American history.

With the passage of the Voting Rights Act, Congress finally acted to prevent discriminatory tactics designed to prevent minorities from exercising their fundamental right to vote. Section 5, in particular, is the centerpiece of the Act, and requires certain covered jurisdictions where voting discrimination has been the most flagrant to seek a preclearance from the Justice Department or a three-judge panel of the federal court in DC for any voting related changes. According to the statute, preclearance will be given as long as the proposed change does not have the purpose or the effect of denying or infringing on the right to vote because of one’s race or color.

In this case, the party seeking to invalidate Section 5 is a municipal utility district in Travis County, Texas, that conducts elections to select the members of its board of directors. Because the State of Texas is a covered jurisdiction, the district is subject to the preclearance requirements of Section 5, and sought relief under the Act’s bailout provision in federal court in the days following the reauthorization of the Act in 2006. Alternatively, the utility district sought to invalidate the provision if it could not bailout from its requirements. It failed on both counts in the courts below.

Today’s arguments confirm that Justice Kennedy again holds the deciding vote on whether the Court will weaken or invalidate a provision upheld by the very same Court four times in the past.

To those who argue that Section 5 is no longer needed because racial discrimination no longer exists, as evidenced by the election of the country’s first African American president, look at the facts. Because of Section 5’s sunset provisions, Congress was required to re-examine whether the statute is needed and last conducted an examination of this type in 2006. The House and Senate Judiciary Committees held a combined 21 hearings over 10 months and received testimony from over 90 witnesses, including state and federal officials, experts and private citizens. And although they concluded that significant progress had been made, they recognized that “[d]iscrimination today is more subtle than the visible methods used in 1965” and concluded that discrimination continues to result in “a diminishing of the minority community’s ability to fully participate in the electoral process and to elect their preferred candidates of choice.” Congress voted 390-33 in the House and 98-0 in the Senate that, among other things, Section 5 was still necessary.

We hope that Justice Kennedy will remember the extensive record finding Congress performed in 2006 and remember his words earlier this year when he wrote in Bartlett v. Strickland, “Still, racial discrimination and racially polarized voting are not ancient history. Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions. . .”

Deborah Liu is General Counsel to People For the American Way, which is a defendant-intervenor in the case.

Twenty four hours after thousands celebrated “Bloody Sunday” earlier this week – a voting rights march from Selma to Montgomery where civil rights marchers including Rep. John Lewis (D-GA) were attacked and brutally beaten by Alabama state and local police, but ultimately led to the historic passage of the Voting Rights Act of 1965 – the Supreme Court undermined some of the enforcement mechanisms of the Voting Rights Act.

I was troubled, in particular by this reference in a NY Times article about Richard Pildes, an expert whose views the Justices relied on in Mondays’ decision, who, according to the Times, “said that current events, including the fact that both major political parties are led by African-Americans, had complicated the legal landscape, creating ‘tremendous pressure on a statute that was primarily structured for an earlier era in which blacks were completely excluded from office.’ “

There’s no disputing the fact that much progress has been made, but even today, we’re a far cry from the post-racial world that MLK described in his famous I Have a Dream speech. To it's credit, even the Supreme Court recognized that racial discrimination and racially polarized voting are not ancient history. This issue is not simply about having an African American President or leader in the Republican Party. This is a larger issue of opportunity for all citizens and one federal election has not summarily changed the reality existing in this country still. There’s no African American representing an overwhelmingly white district in the House, and no African American governors representing a Southern state (there’s only been one in history – Douglas Wilder of Virginia).

I recognize that there’s been much progress, but there’s more work to be done and vital protections such as those in the VRA are still necessary.
 

I’ve seen some concerns expressed about the possible nomination of Mark Gitenstein to head the Justice Department’s Office of Legal Policy, including questions about whether he’s sufficiently committed to protecting the rule of law to serve in the position at Justice involved in selecting and vetting potential federal judicial nominees. I want to weigh in on this conversation because I know Mark well.

I worked very closely with him when he was serving as Senator Biden’s Chief Counsel on the Senate Judiciary Committee and I was counsel to Senator Howard Metzenbaum. If you’re looking for someone committed to the rule of law, no need to look further. Mark can claim a lifetime of service to advancing the cause of civil rights and civil liberties in this country. As chief counsel to Senator Biden, Mark fought against the confirmation of federal judicial nominees who were not committed to protecting the civil rights and individual liberties of all Americans. He worked tirelessly in his position with Senator Biden to help protect the Civil Rights Commission and to extend the Voting Rights Act.

As counsel on the Senate Intelligence Committee he played a leadership role in the oversight investigation of the FBI abuses in the illegal surveillance and intimidation of Dr. Martin Luther King, Jr. and other civil rights and anti-war activists. He played a key role in the development of FISA, which grew out of that investigation.

As an advisor to Senator and presidential candidate Biden, Mark helped focus on the plight of the shrinking middle class advancing measures such as reforming health care to permit middle class and disadvantaged families to buy into the same health care insurance program available to members of Congress and expanding the availability of health insurance for children and expanding employer based retirement programs.

Mark has the smarts, integrity and values that we need in someone heading this critical office.

In Washington, we're hearing rumblings that the Right may be looking to start a fight over Attorney General nominee Eric Holder, whose confirmation hearing will be in early January. It's tough to imagine the kind of audacity it would take to challenge Holder's nomination after Attorneys General Ashcroft and Gonzales.

After eight years of being dominated by politicization, cronyism and extremism, the Department of Justice is in desperate need of a good housecleaning. The Department, like the Attorney General, is supposed to defend the rule of law and Americans' constitutional rights. But under the Bush administration, the DOJ has been used as a weapon against constitutional values, used to fight the administration's ideological and political battles.

In the wake of 9/11, John Ashcroft's Justice Department led the Bush administration's relentless assault on civil liberties. The DOJ was on the forefront of the draconian expansion of surveillance and police powers, and contributed heavily to post-9/11 era of extreme government secrecy. Career lawyers at the DOJ were subtly -- and not so subtly -- pushed out in favor of attorneys more politically and ideologically aligned with the administration. The Civil Rights Division was completely politicized and instead of using its resources to protect voters' rights (by enforcing the Voting Rights Act among other things), the DOJ waged an attack on voting rights by supporting disenfranchising policies like Georgia's restrictive voter ID law. The Department also exploited the 'widespread voter fraud' myth for politically motivated witch hunts -- part of a larger trend of selectively targeting political and ideological opponents for investigation and prosecution.

And how can we forget the Gonzales era at the DOJ! The Attorney General is supposed to be the people's lawyer, but Gonzales was more the president's bag man. The problems that existed under Ashcroft continued or got worse. As more and more news came out about the NSA's illegal warrantless spying on Americans, the torture of U.S. detainees, legally questionable military tribunals and other subversions of the rule of law, we found out that the DOJ had expressly signed off on these administration policies and in some cases even supplied the legal and intellectual underpinning out of the Department's Office of Legal Counsel (OLC). And when a scandal broke over the firing of U.S. attorneys, it became clear exactly how politically motivated hiring and firing practices had been at the DOJ, which evidently was staffed with a disproportionate number of graduates of Pat Robertson's law school (including one of the people tasked with the hiring/firing)!

Attorney General Mukasey has been arguably better than his two predecessors, but following the records of Ashcroft and Gonzales, that's not very hard. Eric Holder is a stellar choice: smart, capable and able to lead the DOJ in a new direction. But he will have his work cut out for him and he'll need help from people like you and me. First, we need to make sure he's confirmed, and that could mean a campaign to defeat whatever attacks right-wing senators throw at him. Then, because of the politically skewed hiring practices, he's going to need the support of the people to make dramatic changes at one of the government's most important agencies.

For eight years, the Department of Justice -- a government agency with a rich history of enforcing civil rights and the rule of law -- has served the worst ideological and partisan impulses of the Bush administration. The era of overzealous ideologues and partisans like Ashcroft and Gonzales is coming to an end.

Thank goodness.

But now it's time to dig in our heels and do our part to put the justice back in the Department of Justice. I hope you don't mind if I call on you for help in the coming months.