Ever heard the quotation, "Past is prologue"? The U.S. Supreme Court apparently hasn't, and its ruling Tuesday on the Voting Rights Act virtually assured that we're doomed to repeat history. In an incredible sweep, the majority chucked the nearly unanimous, bipartisan will of Congress and dismantled the preclearance measure of the law, which requires jurisdictions with a history of discriminatory voting laws (like basically all of Texas) to first clear proposed changes with the Department of Justice.
Now, only lengthy litigation can remedy racially minded Texas redistricting maps and other tools of voter suppression, like the voter ID law, which, by the way, Secretary of State John Steen just announced is now in full effect. Lawyers rejoice! Texas Attorney General Greg Abbott has already announced the legislature's redrawn 2011 electoral map -- which federal judges called intentionally discriminatory -- will take effect immediately. Defenders of Tuesday's ruling will no doubt argue that as a country we've gone post-racial. They'll say that in an age when our president is black, these laws are anachronistic throwbacks to darker days.
But there's a prologue to this story, and it matters. Let's start in 1927, when Texas barred blacks from voting in primaries. Or in 1944, when a court had to strike down a tweaked but largely identical law. That's when Congress started figuring out that tamping down racist voting laws was like whack-a-mole. So, with the passage of the Civil Rights Act in 1957, 1960 and 1964, Congress eventually authorized the U.S. Attorney General to seek injunctions against state and local attempts to interfere with minority voting. These lawsuits, of course, took thousands of man hours to prepare. Litigation was slow-moving; voting officials could seek continuance after continuance; and even when the Feds won, the states would change up their tactics, evade court orders or freeze the voting rolls.
This wasn't working. A century had passed, and still the promise of the Fourteenth and Fifteenth Amendments to the U.S. Constitution had not been delivered.
The answer was the preclearance measure in the 1965 Voting Rights Act. Nearly as many blacks registered to vote in the five years after its passage in Alabama, Mississippi, Georgia, Louisiana, North Carolina and South Carolina as had in the previous century.
That doesn't mean the Department of Justice wasn't forced to continue batting down discriminatory voting laws. The laws simply evolved, got smarter. Because preclearance jurisdictions couldn't outright deny access to the polls, they gerrymandered districts to weaken the voting power of minorities. They instituted at-large districts, so that overall majorities, usually white, selected each city council member, even in towns with strong minority districts. For a local example, think Farmers Branch (until recently).
Congress got wise to this, and reauthorized the Voting Rights Act for five years in 1970, seven years in '75, 25 years in '82. Starting in 2005, the House and Senate held nearly two dozen hearings, heard testimony from scores of witnesses and amassed volumes of evidence consuming some 15,000 pages. They discovered that there were more objections to discriminatory voter laws by the DOJ between 1982 and 2004 than there were between 1965 and 1982. Since '82, they found evidence that 800 proposed changes made by preclearance jurisdictions were altered or withdrawn to avoid a formal objection from DOJ. They commissioned a study that found that although these jurisdictions held only a quarter of the U.S. population, they were host to more than half of all successful legal challenges to discriminatory measures between 1982 and 2004.
Everything Congress learned convinced it to reauthorize the law in 2006 for another quarter century. In the House, there were only 33 nays. The Senate reauthorized the Voting Rights Act unanimously.
If there was ever an example of legislating from the bench, it can be found in Tuesday's opinion. The catch-22 the dissenting justices identify in the majority ruling is glaring, and it can be boiled down to this: If the Voting Rights Act worked, there would be less evidence of discrimination. What need would there be to continue if the law had done its job? Of course, if it didn't work, why bother perpetuating a failed policy?
Justice Ruth Bader Ginsburg laid example after example of contemporary attempts to suppress minority voters. There is the 2006 Supreme Court ruling holding that Texas redrew its congressional map, effectively diluting the voting strength of Latinos in District 23, which includes San Antonio and El Paso. Governor Rick Perry responded by attempting to curtail early voting. The Court blocked him.
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In 2004, in Waller County, outside of Houston, two black college students who announced their intention to seek office were threatened with prosecution. District Attorney Oliver Kitzman claimed they didn't enjoy the presumption of residency status like others in the county. Then the Waller County Commissioners Court decided to reduce the number of early voting days at a polling station near Prairie View A&M, a historically black college.
But the U.S. Supreme Court has decided these dark days are over. They write about the Voting Rights Act as though it's some rigid, eternal regime that can never be escaped. Yet there is a "bailout provision" that allows jurisdictions to shed the preclearance requirement. And do you know what they have to do to "bailout"? Not enact discriminatory voting laws for 10 years! It's telling that only two districts in Texas -- the Jefferson County Drainage District around Baytown and the Northwest Austin Municipal Utility District -- have strung together enough years to bailout. There are 200 other bailout districts in states covered by preclearance.
That's the prologue to Tuesday's news, and I'll end it with Justice Ginsburg's words:
"After exhaustive evidence-gathering and deliberative process, Congress reauthorized the [Voting Rights Act], including the coverage provision, with overwhelming bipartisan support. It was the judgment of Congress that '40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution."