Anyone Think The Supreme Court Will Revisit A Recent Ruling And Admit They Got It All Wrong?

I suspect Sammy Alito, Antonin Scalia, John Roberts, Clarence Thomas and Anthony Kennedy don't read The Nation. That's a shame, because if they did, they might not have made a grievous error last June when they struck down Section 4 of the Voting Rights Act, the provision that enables Section 5 to require states with the worst history of voting discrimination to preclear their voting changes with the Attorney General.

A longtime, slimy little right-wing operative, now known as Chief Justice John Roberts, wrote at the time, “Nearly 50 years later, things have changed dramatically. Largely because of the Voting Rights Act, ‘[v]oter turnout and registration rates’ in covered jurisdictions ‘now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.’ The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years. Yet the Act has not eased Section 5’s restrictions or narrowed the scope of Section 4’s coverage formula along the way. Instead those extraordinary and unprecedented features have been reauthorized as if nothing has changed, and they have grown even stronger…. 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.”

Perhaps Roberts and his cronies could take a look at Ari Berman's piece in The Nation, North Carolina Shows Why the Voting Rights Act Is Still Needed, if they're interested in correcting the great injustice they themselves perpetrated last June. The moment the Supreme Court signaled that excluding minorities from the electoral process, extreme right-wing Republicans in North Caroilina were ready to roll. And they did. "[I]n July 2013," wrote Berman, "the North Carolina legislature passed the country’s worst voter suppression law, which included strict voter ID to cast a ballot, cuts to early voting, the elimination of same-day voter registration, the repeal of public financing of judicial elections and many more harsh and unnecessary anti-voting measures." Republican legislatures across the country are using North Carolina's new racist anti-democracy laws as a model.

Ironically, it took the North Carolina legislature less than a month to approve the law, but it will take a year before an initial hearing on it and two years before a full trial. That’s because in June 2013 the Supreme Court invalidated Section 4 of the Voting Rights Act, which meant that previously covered states like North Carolina, with the worst history of voting discrimination, no longer had to clear their voting changes with the federal government.

North Carolina passed its new restrictions a month after the SCOTUS decision, making the legislation as draconian as possible because it no longer needed federal approval. The state is crystal-clear evidence of why SCOTUS was wrong to gut the VRA and to treat voting discrimination as a thing of the past. It also shows why Section 2 of the VRA is no substitute for Section 5.

Under Section 5 of the VRA-- which SCOTUS paralyzed by invalidating the states covered under Section 4-- North Carolina would have had to prove to the Justice Department or a three-judge court in Washington that its new law was not discriminatory. The burden of proof would have been on the state and the law would have been frozen until DOJ or the courts weighed in. Given the clear evidence of disparate racial impact in this case-- African-Americans are 23 percent of registered voters in the state, but made up 29 percent of early voters in 2012, 34 percent of those without state-issued ID and 41 percent of those who used same-day registration-- the law would have almost certainly been rejected.

Instead, voting rights groups had to sue North Carolina under Section 2 of the VRA, which applies nationwide but is much more cumbersome than Section 5. Now the burden of proof is on the plaintiffs to show evidence of discrimination and the law is in effect until the courts block it. Unless a federal judge in Winston-Salem grants a preliminary injunction in the summer of 2014, the new restrictions will be in place during the 2014 midterm elections (except for voter ID, which goes into effect in 2016). Those who have been discriminated against will have no recourse until after the election has been decided, when there’s a full trial in 2015, on the fiftieth anniversary of the VRA. (A challenge to Texas’s voter ID law under Section 2 of the VRA will go to trial in September 2014.)

Meanwhile, Boehner and Cantor have prevented Congress from fixing the problems the Supreme Court claimed to have found with the Voting Rights Act, in effect, legalizing discrimination against American citizens at the polls. The proposals by the Congressional Black Caucus would pass the House with some GOP support but not enough GOP support to trigger Boehner-- who invokes the Hastert duke whenever he feels like it and ignores it when he doesn't-- bringing it up.

Rep. Marc Veasey, D-Fort Worth, is one of several plaintiffs in the lawsuit against Texas’ new voter identification law. The law requires voters to present a photo ID, and plaintiffs argue that black and Hispanic voters are disproportionately affected. Republicans defend the law, saying it is race-neutral.

The Justice Department has joined the suit on the plaintiffs’ side, and in a separate lawsuit, over the Legislature’s recent redistricting, it has aimed to have the state placed back under preclearance requirements.

Some experts say that lawsuits like Veasey’s prove preclearance isn’t needed to police discriminatory laws. But such suits are expensive and take months. Veasey’s is unlikely to be decided before Texas’ March primaries.

Under the voting rights law, “states had to consider the racial impact of their laws and then had the burden of proof to show that their laws were nondiscriminatory,” Veasey said in a written statement. “With preclearance gone, victims of discrimination now have to shoulder the burden-- time and financial-- of litigating cases.”

While larger issues like the voter ID laws for Texas and North Carolina have drawn lawsuits, smaller concerns-- like moving a polling location from a convenient place to a more remote one-- might not be noticed or be too expensive and time-consuming to fix.

Myrna Pérez, deputy director for the democracy program at the Brennan Center for Justice, a nonprofit group that studies and advocates on electoral issues, said the time-consuming and costly nature of legal challenges forces smaller issues to fall through the cracks in places like Texas, her home state.

“We have a very recent history of racial discrimination in voting,” Pérez said. “And the tool that was the most effective and efficient way of combating that no longer exists.”