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Doug Kendall

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While Politicians Run, Conservative Judges Stand for Voting Rights

Posted: 12/19/2012 2:32 pm

In a speech at the John F. Kennedy Library last week, U.S. Attorney General Eric Holder made an impassioned case for the present amd continuing need for the Voting Rights Act, in particular the Act's Section 5, saying," "This provision has consistently enjoyed broad, bipartisan support - including, most recently, in 2006, when an overwhelming Congressional majority joined with President Bush to reauthorize its protections."

He's right. It is almost hard to believe now, but just six years ago Republicans and Democrats came together in both chambers of Congress to reauthorize the landmark Voting Rights Act by overwhelming majorities -- 98 to 0 in the Senate, 390-33 in the House. The 25-year reauthorization of the act was signed into law on July 27, 2006 by President George W. Bush.

The story of how quickly conservative politicians abandoned their support for the iconic Voting Rights Act is one of the most depressing examples of the toxic brand of politics that has broken out on the far right. Just as important, though lesser known, is the support for this critical statute provided by lower court federal judges from across the ideological spectrum. Indeed, judges appointed to the bench by President Bush have been among the most powerful advocates for the constitutionality of, and continued need for, the Voting Rights Act.

Whether the conservative majority on the Roberts Court will follow the political winds on the right, or hew to the legal analysis of conservative judges on the lower courts, is one of the critical backstories in Shelby County v. Holder, a blockbuster challenge to Section 5 of the Voting Rights Act -- a critical part of the law -- that will be decided by the Court this spring.

On the political front, the floor debate over the 2006 reauthorization of the act stands as a striking example of how quickly Washington has changed for the worse in recent years. In 2006, Republican lawmakers were tripping over themselves to voice their support for the Voting Rights Act.

For example, Senator Chuck Grassley, citing his own remarks during the previous reauthorization vote in 1982, said "the Voting Rights Act is a key tool -- perhaps the key tool -- in eradicating any remaining vestiges of racial discrimination." Senator Mitch McConnell reminded his colleagues: "We have, of course, renewed the Voting Rights Act periodically..., overwhelmingly, and on a bipartisan basis, year after year after year because Members of Congress realize this is a piece of legislation which has worked." Republican Judiciary Committee members touted the eight months of studies and markups that went into the final bill. Southern senators spoke powerfully on how the civil rights movement had touched their lives. Lawmakers from covered jurisdictions gamely affirmed that the law had had a positive impact in their states. To be sure, there were some Republicans who were sharply critical of the act, including several Senators who signed an extraordinary post-passage Judiciary Committee Report, but by and large, Republicans in 2006 agreed with President Bush that "[i]n four decades since the Voting Rights Act was first passed, we've made progress toward equality, yet the work for a more perfect union is never ending."

In 2012, the political landscape looks very different. Following a dramatic overreaction to a handful of "studies" on voter fraud that have been thoroughly debunked, Republican legislatures around the country passed harsh new restrictions on voting and registering, including strict photo ID laws, which not one state had on the books prior to 2006. Crass calculations about demographics appear to have fed the trend. Famously, one overly candid lawmaker crowed that new voter ID laws would "allow Romney to win the state of Pennsylvania." Just last week, a GOP consultant suggested that long lines at the polls represented an advantage for Republican campaigns. That's sickening.

Correspondingly, it's very hard right now to find a conservative politician willing to defend the Voting Rights Act, even though most voted for reauthorization just six years ago. One of the few exceptions is Representative Jim Sensenbrenner, who recently told NPR: "I'm proud of this law... Going up to the Supreme Court, saying that the court should make findings that are opposite of the findings that Congress made after extremely extensive deliberation, I don't think is the way the system ought to work." Sadly, Sensenbrenner is a rare and courageous voice in the conservative wilderness.

The remarkable thing is that this willful amnesia about the wisdom of the Voting Rights Act does not seem to have filtered into the federal courts, where conservative judges have been quite adamant in explaining the continuing need for the act and the constitutionality of the challenged provision: Section 5, which requires that jurisdictions with a history of discrimination get "preclearance" from the federal government before changing voting rules. As these judges have recognized, once you read the Constitution, it is clear that Congress has the power to eliminate the scourge of racial discrimination in voting.

Indeed, perhaps the single most powerful defense of the constitutionality of Section 5 was penned by District Judge John Bates, a George W. Bush appointee, who wrote a 151-page opinion rejecting the challenges brought by Shelby County. Another George W. Bush appointee, Judge Thomas Griffith, joined an opinion by the D.C. Circuit Court of Appeals affirming the ruling by Judge Bates. Conservative judges also wrote or joined a number of other very important opinions earlier this year that employed Section 5 to prevent some of the most disturbing efforts by states to make it more difficult to vote from ever going into effect.

This sets the question as the Shelby County case is heard by the Supreme Court: will the Court's conservative majority, including President George W. Bush's two appointees to the Court, Chief Justice John Roberts and Justice Samuel Alito, follow the conservative political winds or the well-reasoned opinions by conservative judges? One of our nation's most important and successful statutes hangs in this balance.

This piece was written with CAC's Emily Phelps and will be cross-posted on CAC's blog Text and History.

Learn more about the fight to defend voting rights.

 
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