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Later sessions of Congress extended the Voting Rights Act again and again. In 2006, conservatives offered new resistance, but the act was renewed by a healthy margin for another 25 years. Racial discrimination in voting would not be allowed.
When the Supreme Court recently decided that parts of the long standing Voting Rights Act were no longer constitutional, it was because it violated a standard of equality. It wasn’t that every voter should be considered equal. In fact, that original intent of the Voting Rights Act was pretty much bypassed. The standard was rather that every state should be considered equal.
That wasn’t a new idea. One of the objections that conservatives angrily raised back in 1965 was that the Voting Rights Act was unfair to states. The burden of proof before 1965 was on anyone who wanted equal rights. Local politicians lost records and insisted that coincidence accounted for those disparities that remained. Local judges were often hostile to minority rights. Foot dragging meant that years could pass before burdens of proof could be met.
In 1903, in Giles v. Harris, the Supreme Court ruled that it was illegal to enforce amendments to the constitution that were supposed to prevented voting discrimination. It was a violation of states’ rights to force registrars in the south to process voting registrations.
The provision of the Voting Rights Act to which conservatives objected the most named specific states, and specific parts of other states, those with the most vicious history of voting suppression, for special supervision. Conservatives thought that was unfair. Discrimination should be proven at every election cycle, not presumed because of past history.
In 2013, the Supreme Court agreed that the provision was unconstitutional. The reasoning was split, but two lines of logic seemed to prevail.
One was a new principle of “sovereign equality” which held that no state should be held to special scrutiny without meeting a standard of proof. The standard was that specific intent of racial discrimination had to be proven. So we were back at the beginning.
The other line of reasoning was a sort of Catch-22. Justice Antonin Scalia suggested that the fact that the Voting Rights Act was passed, passed so many times, passed by increasing margins, was proof that the Voting Rights Act was no longer needed. That made it unconstitutional. A law popular enough to be passed repeatedly was too popular to be legal.
Racial discrimination in voting was now legal as long as racist intent was not proven. Oops became a viable defense. But, in Texas, something interesting happened. Emails surfaced showing that, sure enough, legislators had deliberately made voting really hard for Hispanic voters. And they had made it hard simply because those voters were Hispanic. Oops was not oops after all.
Federal officials pushed for more evidence. Texas legislators adopted a none-of-your-business principle. They wanted official emails, official notes, and other official correspondence to be off limits. Courts looked at the evidence, saw clear racial intent, and ruled that Texas had to stop discriminating against Hispanic voters. The oops defense had failed.
In Georgia, a citizens group had gathered thousands of new voter registrations and turned them in. That’s harder than you might think. There are a ton of restrictions.
In some past cases, conservatives had gotten minority voter registrations. New voters got to the polls and discovered they were not registered after all. The conservatives had thrown away the registrations rather than turn them in.
So registrations are now tracked. The law pretty much everywhere says you have to turn in every voter registration you take out. If someone signs a phony name or a joke name you have to turn it in.
The group in Georgia policed the registrations and were careful not to allow jokesters to mess around with the process. They turned in tens of thousands of new registrations on time and in due order. When a Republican official in Georgia didn’t process the new registrations, the group sued.
Conservatives have been justifying their harsh new voter restrictions as preventing voter fraud. The problem with that argument is that intense efforts to track down examples of voter fraud have produced so few cases in lots of years, it has become kind of a silly excuse. So the conservative definition of voter fraud is expanding.
In Arizona, a young Hispanic man delivered a whole lot of absentee ballots. It is a practice exercised legally by conservative groups around the country all the time. But his group has been accused in conservative circles of ballot stuffing.
A get-out-the-vote party in Wisconsin is the target of angry conservatives who are calling fraud. “They’re dragging people to the polls offering them BBQ and smokes.”
The right to vote is increasingly referred to as a privilege. That hostile reasoning is permeating through legislatures. It seems to be settling on the courts as well.
The Supreme Court has overturned district jurists in Texas. The state can discriminate against Hispanic voters after all. In Georgia, a district judge has ruled that the court can’t force the state to process those thousands of legitimate voter registrations.
So . . . we are now back to 1903 and Giles v. Harris.
After all, states do have rights.