The Supreme Court's decision in Shelby County v. Holder will roll back the impressive gains made by Latinos in Section 5 jurisdictions. The Court leaves jurisdictions with histories of voting discrimination with free reign to enforce changes to their election procedures without federal preclearance review. By finding Section 5's coverage formula for preclearance antiquated the Court says things are different today when it comes to voter discrimination.
Inexplicably, the Court dismissed 15,000 pages of testimony in one of the most extensive congressional records ever to support federal legislation, in a brazen act of judicial activism. Congress and President George W. Bush extended Section 5 overwhelmingly in 2006 in a rare act of bipartisanship. And yet this didn't matter to five justices.
It was that compelling and exhaustive Congressional record that was the focus of an amicus curiae brief submitted to the Supreme Court by attorneys from the Mexican-American Legal Defense Fund, LatinoJustice PRLDEF, and the firm of Sidley Austin on behalf of national Latino organizations stating: "The journey for Latinos towards equal voting rights has been beset by persistent and intentional racial discrimination... Latino voters continued to suffer racial discrimination in voting even after the VRA's passage particularly in the Southwest and Northeast."
There is another layer of incongruity here in the Court's decision: it was Alabama that has now stopped the strongest section of the most effective piece of civil rights legislation in our lifetimes; the law that stopped Jim Crow and that altered inexorably and for the better, voting procedures for Puerto Ricans in New York City and for Mexican-Americans in Texas.
Justice Ginsberg couldn't help but note that Alabama violated voting rights on the basis of race more frequently than nearly all other states. Indeed, she noted, in a FBI investigation of Alabama legislators, some of whom were wired, they referred to Blacks as "Aborigines" and opposed putting a gambling referendum on the ballot because then "[e]very black, every illiterate..." would be bused to the polls, these legislators warned. And as the Justice noted, these racist comments were not made yesteryear, they were made in 2010.
For Latinos in Alabama this rings in shades of their own vilification in the legislative well of the Alabama capitol when HB 56 the state's anti-immigrant law was passed in 2011. Legislators at that time said: "The [Hispanics] I have a problem with are the ones that come here and create all kinds of social and economic problems"... "I saw them ["illegals"] about 30 of them get out of a car one day...I thought it was circus"... "the people I saw when I went to visit the chicken houses [were] 4-foot Mexicans in there catching them chickens."
These comments and other factors leading to HB 56 led one federal judge to conclude that in the Alabama legislative debates "illegal immigrant" was simply code for "Latino or Hispanic." Now this Southern state argues to the Supreme Court that it no longer needs to have its election changes reviewed under Section 5.
Section 5 protections exist in the largest four states with Latino populations: California, Texas, New York and Florida. Make no mistake about it. This decision rolls back these protections at a time when the mid-term elections in 2014 will be another signal of the growing political clout Latino voters will exercise. We will now have to prepare to fight off multiple attempts to stop and derail the Latino vote. For example, in Texas they're preparing to dust off a voter ID law that Section 5 halted; in Alabama they held a voter ID law in abeyance until this decision; and in New York City, a switch back to mechanical lever vote machines -- a bane in minority communities historically -- is now paved without preclearance review.
What now? First, President Obama and Attorney General Holder must invest additional resources to ward off what an avalanche of regressive voting laws. State Attorneys General that stood with us to support Section 5 must help stop these proposed laws. Indeed, in some cases we have to follow the model of California and Washington State and secure state-based Voting Rights Act legislation. Finally, we call upon Congress to re-energize its efforts to secure amendments necessary to overturn this decision.
But ultimately, the dangers of a conservative, activist court that refuses to accept Congress as a co-equal branch of government lies in the appointment of federal judges, and here the President has to play hard ball. As Justice Ginsberg noted in dissent the question is who decides whether Section 5 is viable? The Supreme Court "or a Congress charged with the obligations to enforce the post-Civil War Amendments 'by appropriate legislation.'"
Now it is time to find alternative ways to protect the vote in those jurisdictions -- until Congress acts to restore these Voting Rights Act protections.