- Published Date
- Written by Roger Clegg
This month marks the fiftieth anniversary of the Voting Rights Act, and I was asked by the National Constitution Center to write something on that topic for them, which I was happy to do:
Let’s Keep the 1965 Voting Rights Act Focused on Actual Racial Discrimination
The 1965 Voting Rights Act was passed because of the appalling denial to African Americans of the right to vote in, especially, the Deep South. There was and is an overwhelming national consensus that such discrimination is wrong, and this consensus was and is bipartisan. Indeed, it’s interesting that Republicans voted in favor of the 1965 act more solidly in both houses of Congress than did the Democrats. The act has transformed the American political landscape, and has been remarkably effective in halting racial discrimination in voting.
Some problems with the act have emerged over time, to be sure, largely as a result of bureaucratic overreaching. Whenever efforts are made to address those excesses, the Left likes to assert that the basic principle of nondiscrimination is being challenged, but this is not true.
Subsequent disputes over the act have involved only two things: the use of the “disparate impact” approach to its enforcement (that is, using the act to challenge racial disproportions of one kind or another even if those disproportions are not the result of actual discrimination); and whether there is any longer any justification for Section 5 of the act (involving “preclearance” of state and local voting changes by the federal government). The Left favors the two because they provide an easy way to promote the racial gerrymandering it likes and to block the election integrity measures (like voter ID) it doesn’t. But the race-based decision-making encouraged by “disparate impact” claims is bad for any number of reasons, and the Supreme Court was quite right to rule two years ago that, indeed, the preclearance formula of Section 5 can no longer be justified.
The racial gerrymandering and segregation fostered by the “disparate impact” approach is pernicious. The Supreme Court has warned about the unconstitutionality of racial gerrymandering in a number of decisions; the practice encourages racial balkanization and identity politics; and, in addition, the segregated districts that gerrymandering creates have contributed to a lack of competitiveness in elections, districts that are more polarized (both racially and ideologically), the insulation of Republican candidates and incumbents from minority voters and issues of particular interest to minority communities (to the detriment of both Republicans and minorities), and, conversely, the insulation of minority candidates and incumbents from white voters (making it harder for those politicians to run for statewide or other larger-jurisdiction positions). As Chief Justice Roberts wrote, it is, indeed, “a sordid business, this divvying us up by race.”
There are efforts in Congress now to resurrect Section 5 after the Supreme Court essentially struck it down two years ago, but such legislation in unnecessary and unwise.
The fact is that Section 5 was an extraordinary provision. It said that nine entire states and parts of seven others could not make any change — no matter how small — in any voting practice or procedure without getting advance permission from the federal government. And it basically put the burden of proof on a state or local government to establish its innocence — not only of disparate treatment, but also of anything with a disproportionate racial impact.
Now, this was a good idea in 1965, although even Chief Justice Earl Warren twice called the provision “stringent” in upholding it. At that time, whole swaths of the country were systematically and blatantly denying people the right to vote because of race. But now there are no large sections of the country like 1965 Mississippi. I very much doubt, in fact, that there is any single state or local jurisdiction that is like 1965 Mississippi.
But what if there were? Well, then you have Section 3 of the act, which allows a judge to put a jurisdiction that denies or restricts voting rights into this kind of “preclearance” receivership. It’s been done. For other instances of racial discrimination, you have Section 2 of the act, which applies to the whole country. Remember that the only provision the Court struck down was the coverage formula for Section 5; the rest of the act is untouched.
Indeed, these other provisions are now being used, aggressively, by the Obama administration and liberal civil-rights groups, and there is no evidence that they need more weapons in their arsenals. If they can prove their cases in court, they will win — the way it works with every other civil-rights law — but with Section 5 they have gotten used to winning without having to prove anything, and that’s the only reason for the efforts to bring back Section 5.
In particular, reasonable people can differ about how to strike the balance between ensuring that eligible voters are able to vote and ensuring that ineligible voters do not. If those efforts are motivated by race, they should be struck down — but by producing evidence of that discrimination in court, not at the whim of some bureaucrat.
We don’t need Section 5 anymore. If it weren’t for the fact that, once upon a time, we did have states that made Section 5 necessary, and that over the years this unique provision has made life much easier for some lawyers, does anyone really believe that a provision like Section 5 would, in 2015, be drafted and given serious consideration? Of course not.
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Two related voting-rights items. First, here’s a long New York Times Magazine article that ran over the weekend, purporting to tell the story of “a largely Republican countermovement of ideologues and partisan operatives who, from the moment the Voting Rights Act became law, methodically set out to undercut or dismantle its most important requirements.”
But actually, as I explained above, the most important requirement of the Voting Rights Act has always been its prohibition of denying anyone the right to vote because of race, and in recent years there has never been any significant movement — Republican or otherwise — to the contrary.
Second, because the Left continues to push bad legislation to resurrect that obsolete and pernicious part of the Voting Rights Act — and because this month marks the 50th anniversary of the Act — I can just see it coming up at the Republican presidential candidate debate on Thursday. So, as a public service, here’s a suggested Q&A for the participants:
Q: Do you support legislation to update the Voting Rights Act, since the Supreme Court gutted it two years ago?
A: No, I do not. No new legislation is needed. The Supreme Court struck down only one provision in the Voting Rights Act, and there are plenty of other voting-rights laws available to ensure that the right to vote is not violated. Those laws require people who think there is discrimination to prove it in court before they can get relief, which is only fair and which is the way that every other civil-rights law works.
[And if the candidate really wants to do his homework, he can add this to his response:]
The law that was struck down really was unconstitutional, and is no longer necessary. Liberals like it because it actually encourages race-based decisionmaking, including racial gerrymandering and segregation of voting districts, and because it makes it easier to block voter ID requirements and other ballot security measures — all at the whim of a federal bureaucrat.
- Published Date
- Written by Roger Clegg
Two observations on Hillary Clinton’s voting-rights speech last Thursday:
First, it contained the predictable race-baiting demagogy — e.g., “what is happening is a sweeping effort to disempower and disenfranchise people of color . . .” No, what is happening is the usual effort to strike the right balance between facilitating voting by eligible voters and preventing voting by ineligible voters. If there is evidence of racial discrimination, the courts are open for business.
Second, she showed, again predictably, her impatience with constitutional limits on federal power, in this case by endorsing federal legislation that would force states to allow felons to vote. Not only is automatic felon reenfranchisment a bad idea, but it is beyond Congress’s authority to pass such a law.
And speaking of the Constitution, she also endorsed efforts to overturn the Supreme Court’s decision two years ago in Shelby County v. Holder, which struck down as unconstitutional one section of the Voting Rights Act. But that decision was correct, and the bill that has been introduced to overturn it contains its own constitutional infirmities — in addition to being bad policy and unnecessary — as discussed here and here and here and here and here and here and here.
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There are a couple of other items on the felon-voting front, both involving proposed bills at the state level to allow felons to vote when they are still on parole or probation.
Maryland’s governor Larry Hogan vetoed a bill last month that would have reenfranchised felons on the day they walk out of prison — even if the parole/probation part of their sentences had not been served. Good for him.
As I and other conservatives had pointed out to him, such automatic reenfranchisement is “premature and unwise.”
To elaborate: If you aren’t willing to follow the law yourself, then you can’t demand a role in making the law for everyone else, which is what you do when you vote. The right to vote can be restored to felons, but it should be done carefully, on a case-by-case basis after a person has shown that he or she has really turned over a new leaf, not automatically on the day someone walks out of prison — let alone when parole/probation have not even been served. After all, the unfortunate truth is that most people who walk out of prison will be walking back in.
The only bad news is that there may be a serious attempt to override the veto. Here’s hoping the votes are lacking in the Maryland state legislature.
And in Minnesota, the bill failed to pass the state legislature at all. Here again, though, the struggle is not over, because the governor has asked that the bill be among those on the agenda he’s proposed for a special session of the legislature later this year.
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“The Case for Black Doctors”: That’s the title of a recent New York Times op-ed by Dr. Damon Tweedy. But his arguments in favor of racial preferences are unpersuasive, as discussed in my response:
Dr. Tweedy offers only two justifications for racial preferences in med school admissions: that many black patients prefer black doctors, and that African-American doctors are more likely to work in underserved areas.
Both are shaky as an empirical matter (see Sally Satel’s book PC, MD on the first, and the second was rejected by Justice Powell in his Bakke opinion), and both are shaky as a matter of policy (we wouldn’t indulge nonblack patients’ reluctance to have a black doctor, and there are more direct ways to improve service in underserved areas than the convoluted one of admitting doctors we hope might someday practice there).
But even if there is something to them, they would not justify the many costs of racial discrimination in university admissions — the unfairness, divisiveness, stigmatization, “mismatch” problem leading to lower graduation rates, and on and on. And in particular in this context, there is the cost to future patients of turning down the most qualified applicants and instead admitting less qualified individuals to become doctors. Is that ultimately a good thing for black patients? No wonder Dr. Tweedy admits finally that he is “ambivalent” about race-based affirmative action!
- Published Date
- Written by Roger Clegg
The Supreme Court granted review this month in Shelby County v. Holder, a case challenging the constitutionality of Section 5 of the Voting Rights Act. The Center for Equal Opportunity helped write and joined an amicus brief urging the Court to take the case.
- Published Date
- Written by Roger Clegg
Predictably, the Left has tried to use the Selma anniversary, along with the Oscars, to push its very bad amendments to the Voting Rights Act. Thankfully, there does not seem to be much interest, and rightly so.
No new legislation is needed. The Supreme Court decision that the bill supposedly addresses struck down only one provision in the Voting Rights Act, because it was indeed unjustified and outdated; there are plenty of other voting-rights laws available to ensure that the right to vote is not violated. And indeed there is no shortage of lawsuits being filed. If plaintiffs can prove their case, they can and should win, but the point is that they should have to prove their case — a requirement the amendments would eliminate.
In many other important respects, too, the bill that has been drafted is bad legislation. For example, it does not protect all races equally from discrimination; it contains much that has nothing to do with the Supreme Court’s decision; and it itself violates the Constitution by using a “disparate impact” approach and prohibiting practices that are not actually racially discriminatory but only have racially disproportionate effects.
And despite the disingenuous claims of its proponents, the bill is also not really bipartisan. At Senate hearings last year, it was clear that no Republican would favor it, because it is designed to give a partisan advantage to the Left. There are still no Republican sponsors in the Senate, and only a handful of misguided Republican sponsors in the House.
Here’s a piece on this bad bill I wrote for National Review Online last year, just before those hearings; the last paragraph has links to a number of other pieces that spell out just how bad this bill is.
The Los Angeles Times published my letter making these points last week, by the way.
* * *
The Washington Times reports that a high-school principal in Oak Park, Illinois, is stubbornly standing by his decision to hold an event for black students only, so that they could safely discuss race issues without the presence of white people. Principal Nathaniel Rouse hosted a “Black Lives Matter” event exclusively for black students last month. He says he hopes to have similar events for whites, Hispanics, and Asians, and then a school-wide event.
So, the way to fight racism is to underscore racial differences by having segregated events premised on the inability of different racial groups to deal respectfully and honestly with each other — I get it.
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The U.S. Equal Employment Opportunity Commission has been on a well-deserved losing streak lately, and that streak continues now with a good decision by the U.S. Court of Appeals for the Fourth Circuit, discussed here. The case involves the EEOC’s disparate-impact challenge to a company’s use of criminal background checks.
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I’ve noted from time to time the misguided approach to civil-rights enforcement in school discipline by the Obama administration, namely its use of the “disparate impact” approach, equating racial disproportions to discrimination. Recently there was an excellent article in the New York Post on the results of this nonsense — read it here.
The particular agency at fault, by the way, if the Education Department’s Office for Civil Rights — which is the same agency for which the administration has requested a 31 percent budget increase! Read all about that here.
And — last point on this — even liberal Representative Joe Kennedy (D-Massachusetts) et al. were pushing for only a 5 percent increase.
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- Written by Roger Clegg
Usually my weekly emails to you are my own writing, but this week I'm going to send you an excellent column by Perry Pendley, head of the Mountain States Legal Foundation. And I think I have three good reasons for doing so. First, as I said, it's an excellent column, and it's even better because it draws on the fine work done by the Center for Equal Opportunity's chairman Linda Chavez, who has told Congress repeatedly that it should get rid of its offensive requirement that ballots be printed in foreign languages. Second, Mr. Pendley and his organization are longtime allies of the Center for Equal Opportunity, and we are delighted to be making common cause with him again on this issue. And, third, I've been on the road the last couple of weeks, speaking at several law schools and other venues, and relying of Perry here will make that week a little less hectic. Enjoy!
CENSUS BUREAU RUSHES UNCONSTITUTIONAL BALLOT DEMAND
In mid-October, the Obama Administration, through the U.S. Census Bureau, put three states and 248 counties in 25 states on notice that the election materials they provide must be printed, not only in English, but also in 68 additional languages. The mandate is not new—its announcement is required upon completion of the decennial census; however, what is new is the speed with which it was issued after the 2010 Census. The Bush Administration published its Federal Register notice regarding the 2000 Census in 2002.
Cynics may suggest that the announcement has something to do with the 2012 elections, but the focus should be on the remarkable requirement that, in a country where English language fluency is necessary for citizenship, ballots must be in a variety of foreign languages and the insult that demand gives to the Constitution, as well as its public policy failings, including, that it: imposes a costly unfunded federal mandate in the middle of a recession; Balkanizes the body politic; and contributes to voting fraud. Little wonder that, with the Census Bureau’s announcement, many are asking, “Why are we doing this?”
In 1975, Congress amended the Voting Rights Act of 1965 to require that ballots be prepared in languages other than English in jurisdictions where more than 5 percent of the voting-age citizens are members of a particular language minority, if their illiteracy rate is higher than the national illiteracy rate. The reason: “unequal educational opportunities which language minorities have suffered at the hands of State and local officials.” Although the Congressional Record references “evidence,” it cites only statements by three Representatives who supported the amendment. Enacted as “temporary,” Section 203 was extended: in 1982 for 10 years, in 1992 for 15 years, and in 2006 for 25 years.
Even if Section 203’s “evidence” were true in 1975, which is doubtful, Congress may not interfere constitutionally with the right of State and local officials to conduct elections by imposing a prophylactic remedy—non-English ballots—unless it has evidence of discrimination and enacts a remedy that is “congruent and proportional,” in the words of the U.S. Supreme Court, to the offense. Because “disparity” does not mean “discrimination,” let alone the intentional discrimination by State and local officials that allows extra-constitutional action by Congress, Section 203 is unconstitutional, if not in 1975, then certainly in 2011, given Congress’s rote reauthorization of the provision over the decades.
Experts such as Center for Equal Opportunity Chairman Linda Chavez argue that, even in 1975, lack of English language fluency was likely not the result of discrimination but factors such as growing up in a home where English is not spoken enough. Furthermore, how likely is it that the English language deficiencies Congress “found” in 1975 exist four decades later? If not likely, why are hundreds of jurisdictions still covered? Because the Census Bureau labels those who say they speak English “Well” (as opposed to “Very Well”) with those who say “Not Well” or “Not at All” as having “Limited English Proficiency” (LEP) and covered by Section 203.
That citizens do not need non-English ballots was demonstrated by a 1986 General Accounting Office (GAO) study, which found that over half of the reporting jurisdictions said no one used the bilingual materials. In 1996, a Yuba County (California) official reported that, in 16 years, only one person requested bilingual materials, yet the county spent $30,000 a year preparing them. In May 2011, Cuyahoga County (Ohio) spent $100,000 for bilingual ballots in a “light” primary season. Bilingual ballots create another concern for election officials: their ability to prevent fraud. As Ms. Chavez puts it, the only people who need bilingual ballots are non-citizens who want to vote.
Sadly, this costly, useless federal mandate, which undermines national unity, facilitates voting fraud, and violates the Constitution, is likely with us forever. That is, unless a courageous election official asks the Supreme Court to strike it down.
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- Written by Roger Clegg
It’s being widely noted that this week, on July 2, we’ll be celebrating the fiftieth anniversary of the signing of the 1964 Civil Rights Act. Below are excerpts from my discussion, posted earlier this month on the Liberty Forum website, of why “the approach taken in the bill was a conservative one, that it ought to be updated to strengthen and clarify that essentially conservative approach, and that it is the Left that has strayed from the Act’s principles and that now wants to repudiate them.”
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The Civil Rights Act of 1964 banned much government and private-sector discrimination, mostly on the basis of race and ethnicity (“color” was specified in addition to “race,” and “national origin” was the term used instead of the now-more-common “ethnicity”), but often on the basis of religion, too, and sometimes on the basis of sex as well.
There were eleven titles in the 1964 Act. The key ones were Title II (public accommodations), IV (school desegregation), VI (federally funded programs), and VII (employment). The others were I (voting), III (public facilities), V (expanding the U.S. Commission on Civil Rights), VIII (compilation of voting data), IX (facilitating intervention by the Justice Department and federal jurisdiction in some trials), X (establishing the Community Relations Service), and XI (regarding criminal contempt).
A Restricted Measure
The 1964 Civil Rights Act was ambitious, but it was not untethered, either in the areas it covered or in the kinds of discrimination it banned. It did not, to give just one example, require wedding cakes and photographs to be made for same-sex marriages. And the relief that it made available was carefully limited, too. There was no provision for the award of comprehensive, let alone punitive, damages in the original statute, for example.
Some libertarians might still object to this bill. But no less a libertarian than Richard Epstein said that, if he had to make an up-or-down decision, he would have voted for it in 1964. The Act addressed both public and private discrimination; and, in some areas regulated by the Act (for example, public accommodations) public and private discrimination had become hopelessly intertwined.
Conservatives, of course, treasure Richard Epstein but they adore Edmund Burke, so the more salient question for them is whether Burke would have voted for the Act. I think he would have. The Act was certainly a reform, but then Burke was a reformer, and these reforms were actually in line with fundamental American precepts – with the “American creed,” as Gunnar Myrdal put it, and E pluribus unum, our original motto. The rhetoric of the Civil Rights Movement, it is often now forgotten, stressed patriotism and was unabashedly religious; it is not surprising that it is now conservatives who are most likely to quote Dr. Martin Luther King’s dream of children being judged by the content of their character rather than the color of their skin, emphasizing both the “character” part and the “color” part. This spirit is in the Act, even if some liberty is sacrificed to it.
Conservatives want society to be cohesive, and it is hard for a multiracial and multiethnic society to be cohesive if it is endorses irrational and unfair discrimination on the basis of skin color and national origin. Such a society cannot be meritocratic or honor a natural aristocracy, let alone the self-evident truth that all men are created equal.
A higher percentage of Republicans than Democrats in both houses voted for the 1964 Civil Rights Act. Yes, in some respects the Act diminished the freedom of companies, but it’s at least arguable that the Act actually made markets freer and more efficient and improved the environment for business. I’ll conclude this discussion on a point related to this, noting that when I went from being a deputy in the Justice Department’s civil rights division to being a deputy in its environment and natural resources division, I was immediately struck by how much shorter and clearer the statutes were for the former than the latter. A low bar, but still.
The Turn to Federally Sponsored Race Discrimination
It is astonishing, in light of all the Act achieved, that the federal government has at the Left’s bidding since 1964 come to endorse a great deal of racial discrimination. A 2011 report by the Congressional Research Service catalogued literally hundreds of government programs that included some form of racial discrimination.
If Congress wants to do something about it, and drastically reduce the amount of discrimination that goes on, it should look carefully at the bills that the Center for Equal Opportunity and the Heritage Foundation recently drafted. (The bills are described in detail here.)
The most straightforward way Congress could act is by banning racial preferences in all federally funded programs — public employment, education, contracting, etc. — and in federal civil-rights protections. Federal law — including the words of the 1964 Civil Rights Act that courts and bureaucrats have mangled — frequently states that the government may not discriminate based on race, but plenty of other federal statutes explicitly do so.
Likewise, the “disparate impact” approach to civil-rights enforcement results in race-based preferential treatment — often intentionally so. Eliminating such claims is therefore another way to help curb the use of racial and ethnic preferences, and our second model bill has this aim.
In brief, an action that has racially disproportionate results is considered to have an illegal disparate impact, even if the action is neutral on its face, in its intent, and in its application. This is not racial discrimination by any reasonable definition, and it forces employers, landlords, schools, and others either to discard legitimate criteria and selection procedures (for example, a physical or written test for firefighters or police officers); or to avoid racial disproportions by hiring, leasing, or disciplining (or designing tests and other selection criteria) with an eye to skin color; or both. The Obama administration loves this approach, alas.
Fortunately, most civil-rights laws – again, including the 1964 Civil Rights Act, as originally written – have no such “disparate impact” provisions; rather, they prohibit actual discrimination (“disparate treatment”). The laws were expanded, however, through agency interpretation and activist court rulings to include “disparate impact.” Again, the Left sacrificed the Act’s guarantee of equal opportunity in order to achieve equal results instead.
Bell Curve Consequences
And finally — having addressed conservatives, libertarians, and liberals — let me also say a word to those who ask: What if it turns out that there are genetic differences in cognitive abilities among different groups?
The issue whether there are racial differences in IQ is, it seems to me, of an intricacy disproportionate to its interest, at least for those of us who think that sound law and policy require judging people as individuals, without regard to race. In short, even if such genetic differences can be proven to exist, it would not provide a convincing rationale to refrain from re-instilling the sound law and policy of requiring citizens to be judged as individuals, without regard to race. Were science to prove somehow that the average white’s IQ is 12.03 higher than the average black’s, there will still be plenty of blacks smarter than plenty of whites, and plenty of mixed blacks/whites/others.
In the civil-rights context, the science here is important only to those on the far Right who would defend racial discrimination, and — especially — those on the far Left who insist that, since culture of course also cannot be blamed for racial disparities, they must all be a result of discrimination. The quota mongers have to deny unequal distributions of talent, interests, and ability, since their whole approach hinges on an assumption that proportionate representation is what a meritocratic system, sans discrimination, would produce. It is only to people who want to make racial generalizations and to people who believe that, absent discrimination, every university and workplace would “look like America” that race and IQ is of great importance.
I, on the other hand, am happy to be agnostic: Just choose the best qualified people, and don’t worry about getting your numbers right. For us colorblind conservatives, who think people should be treated as individuals regardless of race and who don’t think that racial disparity equals racial discrimination, the connection between race and IQ doesn’t matter in this arena. The 1964 Civil Rights Act, as originally written and understood, makes sense for a multiracial and multiethnic society, whether or not there are genetic differences among different groups.
Discrimination on the basis of race and ethnicity is inconsistent with the 1964 Civil Rights Act, unconstitutional when the government imposes it, and a bad idea, yet the practice is now rife throughout federal law and government programs. Jobs should go to the most qualified individuals; contracts should be awarded to the lowest bidders who are qualified; the students who are most likely to excel academically should be admitted to taxpayer-funded universities; and all should be protected equally from discrimination.
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- Written by Roger Clegg
Last Friday, Virginia governor Terry McAuliffe signed an order that reenfranchised over 200,000 felons in that state. This week I’m devoting my email to two pieces I wrote in response, one for the New York Times (addressing the issue of felon voting in general terms) and the other, with Hans von Spakovsky, for National Review Online (which focused on Virginia in particular).
First, here’s what I said in the New York Times:
We have certain minimum standards of responsibility and commitment to our laws before entrusting someone with a role in the solemn enterprise of self-government. People who commit serious crimes against their fellow citizens do not qualify.
The right to vote should only be restored to felons on a case-by-case basis after a person has shown that he or she has truly changed.
More succinctly, if you won’t follow the law yourself, then you can’t make the law for everyone else, which is what you do – directly or indirectly – when you vote.
The right to vote can be restored to felons, but it should be done carefully, on a case-by-case basis after a person has shown that he or she has really turned over a new leaf, not automatically on the day someone walks out of prison. The unfortunate truth is that most people who walk out of prison will be walking back in.
The arguments in favor of automatic felon voting are unpersuasive. The fact that a disproportionate number of felons at some point in time belong to a particular racial group does not make disenfranchisement racist, just as most felons being male and young does not make these laws sexist or ageist. And while a disproportionate number of felons are black, their victims likewise are disproportionately black, so minimizing the consequences of crime and empowering criminals also has a disparate impact on their law-abiding African-American neighbors.
If there were any evidence that a state’s disenfranchisement law is truly discriminatory, it would be considered unconstitutional under Supreme Court rulings. The fact that it has been years since such laws have been successfully challenged in court – despite there being no shortage of organizations, starting with the Obama administration’s Justice Department and the Democratic Party, that would be eager to do so – shows this evidence is nonexistent.
It’s claimed that, once released, felons should be re-enfranchised because they have “paid their debt to society.” But this phrase is misleading, since in many respects we don’t ignore a criminal past – for example, in allowing someone to buy a gun.
Finally, it’s argued that re-enfranchisement may speed the reintegration of felons into civil society. But automatic re-enfranchisement actually misses the opportunity to do so.
A better approach is to wait some period of time to ensure that the felon has actually turned over a new leaf. At that point, a ceremony – rather like a naturalization ceremony – where he is congratulated in front of friends and family and re-enfranchised would be moving and meaningful.
And here’s my piece for National Review Online:
In what is likely an unconstitutional state action seemingly calculated to ensure that the purple state of Virginia goes blue in the November election, Governor Terry McAuliffe (D.) signed an order on Friday restoring the voting rights of 206,000 ex-felons in Virginia, including those convicted of murder, armed robbery, rape, sexual assault, and other violent crimes. The order also restores their right to sit on a jury, become a notary, and even serve in elected office.
McAuliffe believes that ex-felons can be trusted to make decisions in the ballot booth and the jury box but apparently not to own a gun. He draws the line at restoring their Second Amendment rights; that would be a bridge too far. His order specifically does not restore their “right to ship, transport, possess, or receive firearms.” And while his order requires that felons complete probation and parole before enjoying restoration of their rights, it applies regardless of whether they have paid any court fines or restitution to victims.
What McAuliffe entirely dismisses is the principle that if you won’t follow the law yourself, you can’t demand a role in making the law for everyone else, which is what you do when you vote. Restoring a felon’s right to vote should be done not automatically, as soon as he has completed his sentence, but carefully, on a case-by-case basis, after he has shown that he has really turned over a new leaf. The unfortunate truth is that many people who walk out of prison will be walking back in; recidivism rates are high. We have both testified before Congress and written about this problem. Governor McAuliffe may be happy as long as the ex-felons who can now vote just don’t walk back into prison before November.
Having a waiting period, examining each ex-felon’s application for restoration of rights carefully and individually, and differentiating between violent and nonviolent crimes is exactly the system that Virginia had — at least until Friday’s order. In a three-page summary released by the governor’s office, McAuliffe asserts that any claim that he doesn’t have the authority to grant a blanket restoration of rights is “far-outside the weight of constitutional authority across the nation and would read into the text of the Virginia Constitution words that simply are not there.” This is just legal gibberish — the weight of constitutional authority “across the nation” has no bearing on interpreting the Virginia constitution. McAuliffe is reading into that constitution authority he does not have.
That isn’t just our opinion; it is the opinion of prior governors and attorneys general of both political parties. For example, on January 15, 2010, Mark Rubin, the counselor for former Virginia governor Tim Kaine (D., now a U.S. senator), sent a letter on the governor’s behalf to the ACLU, saying that Kaine did not have the executive power “to grant a blanket restoration of voting rights,” which the ACLU had requested. Kaine supported restoration of voting rights but refused to act because his counsel’s view was that the “better argument” was that the powers in the Virginia constitutional provision on clemency (Article 5, Section 12) “are meant to apply in particular cases to named individuals.” In fact, “a blanket order restoring the voting rights of everyone would be a rewrite of the law. . . . The notion that the Constitution of the Commonwealth could be rewritten via executive order is troubling.”
Similarly, then–attorney general Ken Cuccinelli (R.) appointed the Rights Restoration Advisory Committee to examine this issue. The committee included not only several Commonwealth Attorneys (i.e., the district attorneys of Virginia counties) and a professor from George Mason University but also Ashley Taylor Jr., a former commissioner on the U.S. Commission on Civil Rights, and Paul Goldman, the former senior adviser to Doug Wilder (D.), the first African-American governor of Virginia.
On May 10, 2013, the committee issued a report concluding that the governor does not have constitutional authority to “institute by executive order” a complete “restoration of rights for all convicted felons in the Commonwealth of Virginia.” Why? Because his clemency power in Article 5 must be harmonized with Article 2, Section 1, which provides that “no person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored.” If, instead of acting individually to consider each “person” and “his civil rights,” the governor issues a blanket restoration, such “altering [of] the public policy of the Commonwealth as regards the disenfranchisement of persons convicted of felonies clearly would be a legislative act, not an administrative act.” It would be “difficult” for a court to “sustain a Governor’s exercise of [his] clemency power in so sweeping a manner that the Constitution’s general policy of disenfranchisement of felons is voided.”
Yet that is exactly what McAuliffe attempts to do through his executive order, in a violation of the separation of powers. He is acting like a superlegislator in voiding the policy that has existed in Virginia “in one form or another since the [Virginia] Constitution of 1830,” according to the Cuccinelli’s report. (The New York Times incorrectly reported that the policy dated only to the Civil War; the Richmond Times-Dispatch, to the state’s 1902 constitution. Conversely, the current constitution was actually written in 1971, and no evidence has been cited that there was any discriminatory intent in it.)
As was completely predictable, McAuliffe played the race card on Friday, saying he was rectifying Virginia’s “long and sad history” of suppressing African-American voting power. This is a bogus and demagogic claim about a policy that applies equally to all felons regardless of race and that was established when black Virginians couldn’t even vote. Similar false claims about the history and origin of felon disenfranchisement have been made in numerous discrimination lawsuits that have been filed under the Voting Rights Act but have been uniformly unsuccessful.
Supreme Court precedent is that such a provision can be overturned as unconstitutional if it was adopted or applied with a racially discriminatory intent. If evidence existed that the Virginia law was racially discriminatory in its origins or application, many well-funded civil-rights advocacy organizations, as well as the U.S. Department of Justice, would be eager to challenge it. The lack of successful challenges in Virginia indicates that such evidence does not exist. As always, liberals want to equate disparate impact with racial discrimination, and it just ain’t so.
It is estimated that McAuliffe’s action will add 3.8 percent to the 5.4 million registered voters in Virginia. That may not seem like a lot, but McAuliffe knows very well that Virginia today is a swing state with recent statewide elections that have been decided by a very small margin. In 2013, the current attorney general, Mark Herring (D.), won his race by only 907 votes. Former Virginia governor Bob McDonnell (R.) won his prior post as attorney general by only 360 votes in 2005. Even the Washington Post, which applauded McAuliffe’s action, acknowledged there is “no doubt” about the “political dimension” in this move by “a Democrat and longtime friend and fundraiser for Bill and Hillary Clinton” — namely, that it “grant[s] Democrats a crucial edge in a swing state ahead of November’s presidential election.”
McAuliffe is continuing a pattern. Last year he vetoed a bill that would have helped clean up voter-registration lists. The bill required county court clerks to send to local election officials information about individuals who were excused from jury duty because they were not U.S. citizens or were no longer residents of Virginia. McAuliffe seems intent on making sure that ineligible and illegal voters can continue to vote.
He is following the example set by President Obama: If you don’t like a law or a constitutional limit on your authority, just ignore it. Rewrite, change, or bend it. The New York Times inadvertently gave the game away when it said that McAuliffe’s “action effectively overturns a Civil War–era provision in the state’s Constitution.”
McAuliffe’s willingness to do anything (and to say anything) to achieve partisan political goals shows a complete contempt for the rule of law and for the constitutional republic that is the United States. What a sad day for the great state that was the home of Thomas Jefferson, Patrick Henry, James Madison, George Mason, and the father of our country, George Washington.
- Published Date
- Written by Roger Clegg
Here’s a column by me recently posted on National Review Online:
Looking forward to her run for president in 2016 and in an effort to bolster her bona fides with key parts of the Democratic base, Hillary Clinton gave a speech earlier last week on voting rights. In it she made two points, both wrong.
Her first claim was that the Supreme Court erred in its ruling in Shelby County v. Holder, in which it struck down the coverage formula that is used for Section 5 of the Voting Rights Act. That formula is used to determine which state and local jurisdictions have to go through the extraordinary and constitutionally dubious process of getting advance approval from the federal government whenever they make any change in a voting-related practice or procedure.
The principal use of Section 5 has been to mandate racially gerrymandered and segregated voting districts, which is hardly a noble end, and indeed is flatly inconsistent with the ideals of the Civil Rights Movement. And the formula is based on data from elections in the Sixties and early Seventies, with Congress refusing to update it when it reauthorized Section 5 in 2006 (had it done so, no state except perhaps Hawaii (!) would have been covered). Congress, moreover, was warned by the Court in 2009 about the problems with its approach, and did nothing about it. The Court’s decision, then, was perfectly reasonable.
Mrs. Clinton’s second claim was that voter-ID laws will, as a result of the Court’s action, be adopted by states, and that the antifraud justification for these laws is phony and the real motivation is to keep racial minorities and others from voting. This claim is unpersuasive for a number of reasons.
To begin with, voter fraud is hardly a chimera, as John Fund and Hans von Spakovsky, among others, have persuasively documented and as the Supreme Court has recognized in upholding a voter-ID law. The lead opinion in that decision, by the way, was written by a liberal justice, John Paul Stevens, who — being from Chicago — knew that there actually is such a thing as voter fraud.
What’s more, if a state did pass or apply a voter-ID law with racial intent, there are plenty of other provisions in the Voting Rights Act that can be used to prevent such discrimination — provided, of course, the discrimination can actually be proved, in the same way that any other claim of racial discrimination (in employment, housing, etc.) must be proved. For example, a recently enacted law in North Carolina is being challenged; I doubt that the challenge is meritorious, but the point is that nothing in the Supreme Court’s Shelby County decision will prevent justice from being done there, or in Texas, or anywhere else.
This month will mark the 50th anniversary of the 1963 March on Washington that culminated in Martin Luther King, Jr.’s “I Have a Dream” speech. When one observes the gap between today’s racial rhetoric and our racial reality in 2013, it’s hard to know whether to laugh or cry.
Secretary Clinton’s speech is typical of the rhetoric we are hearing and which will build to crescendo later this month, with a refusal to let go of the race card, whether the context is alleged racial profiling, criminal sentencing, home loans, criminal background checks by employers, school discipline, or voting rights.
The reality is quite different. Racism (among all racial groups, by the way) can still be found and always will be, but it is nothing like it was in 1863 or 1963, and indeed it is legally proscribed in practically any public transaction, as well as being socially unacceptable. Opportunities are boundless for all, regardless of skin color, in any walk of life. Just ask our president. It’s not just that the glass is half full: Our cup runneth over.
Sad to say, the principal reason for the remaining racial disparities — and, consequently, for the racism that still exists — is the implosion of the black family. The resulting “tangle of pathology” was identified by Daniel Patrick Moynihan just two years after Dr. King spoke and when it was less virulent; believing that working and studying hard is “acting white” would have insulted Dr. King; I doubt he would have thought much of gangsta culture and its liberal enablers either, since he expected his children to be “judged by the content of their character.” It would be nice if Hillary Clinton gave a speech about all that, but I’m not holding my breath.
- Published Date
- Written by Roger Clegg
The Maryland state legislature is back in session, and the Democrats have announced that one of their priorities is overriding Governor Larry Hogan’s veto last year of a bill that would automatically re-enfranchise felons when they are released from prison, even if they are still on parole or probation (Maryland already automatically re-enfranchises felons once they are no longer on probation or parole). Governor Hogan is adamant that this is a bad bill.
And Governor Hogan is right, so here’s hoping that the scheduled veto-override effort fails in the state senate this week (alas, the override passed the house last month, with the bare minimum 3/5 majority required).
If you aren’t willing to follow the law yourself, then you can’t demand a role in making the law for everyone else, which is what you do when you vote. We don’t let everyone vote — not children, not non-citizens, not the mentally incompetent, and not felons — because we have certain objective, minimum standards of responsibility and commitment to our laws that must be met before someone is given a role in the solemn enterprise of self-government. People who have committed a serious crime against their fellow citizens don’t meet those standards.
The right to vote can be restored to felons, but it should be done carefully, on a case-by-case basis after a person has shown that he or she has really turned over a new leaf, not automatically on the day someone walks out of prison — let alone when parole and probation have not yet been served. After all, the unfortunate truth is that most people who walk out of prison will be walking back in. Deep down, the Left knows all this; that’s why, though it is happy to let felons vote, it is somehow reluctant to restore their Second Amendment rights.
The Maryland bill’s proponents can’t make the (lame) argument in this case that the felon has “paid his debt to society” because he hasn’t, so now they are arguing that re-enfranchisement leads to less recidivism. But there is no persuasive evidence that this is so, and in fact the claim confuses cause and effect. That is, the people who have turned over a new leaf do not commit crimes, and so they have had their right to vote restored and they vote; they do not decide to turn over a new leaf because their right to vote has been restored.
Thus, while it is frequently claimed that a Florida study supports re-enfranchisement, former attorney general Michael Mukasey has pointed out that this claim is flawed:
Florida has had, and indeed has broadened, a system that requires felons to go through an application process before their voting rights are restored. Obviously, those who are motivated to navigate such a process self-select as a group less likely to repeat their crimes. Suggesting that the automatic restoration of voting rights to all felons would lower recidivism is rather like suggesting that we can raise the incomes of all college students if we automatically grant them a college degree—because statistics show that people with college degrees have higher incomes than those without them.
Another claim being made by the bill’s proponents is that felons should be able to vote since they pay taxes. But this argument proves too much: Felons are subject to taxes (for example, on investments or other income) when they're in prison, too, and taxes are also paid by nonvoters like children, noncitizens, and the mentally incapacitated.
I have written more about this issue here. Hang in there, Governor Hogan!
Rand Paul on Drugs – At last week’s presidential debate in Iowa, Rand Paul said that, because people of different races use drugs at about the same rate but African Americans disproportionately make up people in prison for drug offenses, this suggests there is racism in the criminal-justice system. But this is wrong both factually and logically, as I discuss here.
And Equal Time for the Democrats – And at a recent debate among the Democratic presidential candidates,Hillary Clinton made disturbing remarks on race and crime. Her claims of “systemic racism” in our criminal justice system and suggestion that it has resulted in an open season on young black men is uninformed, divisive, and irresponsible. I would add that Bernie Sanders’s claim that there should be an attorney general’s investigation whenever anyone dies in police custody is eyebrow-raising, as is his demand that police forces reflect the demographic makeup of the citizenry (quotas, anyone?).
Let’s Make a Deal, Bernie – Free tuition at Harvard, in exchange for more transparency in admissions: with an eye, in particular, on stopping racial admissions discrimination. Read all about the intriguing new campaign in this New York Times article.
More about “What Candidates Can Do” – Peter Wood, who is president of the National Association of Scholars (and frequent ally of the Center for Equal Opportunity), recently encouraged the presidential candidates to opine – and opine wisely – on higher education issues. With regard to his Item #3 (“End higher education’s destructive focus on race”), I’d like to point out two specific proposals that have been made, along the lines of the legislation that Peter discusses.
First, Professor Gail Heriot, another CEO ally (who moonlights as a member of the U.S. Commission on Civil Rights), had an excellent Wall Street Journal op-ed last year that made two important points. The first is that the “mismatch” that results from racial preferences in university admissions is an important factor in the relative dearth of African American graduates in the STEM disciplines. But the second is that, while some of the pressure to use these preferences is self-imposed, a lot of it is not — and, in particular, much of it comes from accrediting agencies. She calls on Congress to step up to the plate and “prohibit accreditors from wading into student-body diversity issues.” Those interested in more information about what Congress should do on this can read Professor Heriot’s additional words of wisdom here and here.
Second, as long as university officials take race and ethnicity into account in admissions decisions, a bill requiring publication of the use of such preferences is necessary. Such a bill would require universities that receive federal funding to report annually and in detail on whether and how race, color, and national origin factor into the student admissions process. The Supreme Court has, alas, upheld such discrimination as constitutionally permissible, at least for now, but this is supposedly subject to numerous restrictions. So even if some insist that taxpayer-funded universities should continue to practice racial discrimination in admissions, there’s no justification for it being done secretly and illegally – that is, without public disclosure and without taking pains to satisfy the Supreme Court’s requirements. Senator Lamar Alexander (R-TN), who chairs the relevant Senate committee and is an outspoken critic of racial preferences, ought to be supportive; so should his House counterpart, Rep. Virginia Foxx (R-NC); the U.S. Commission on Civil Rights endorsed this approach, including “sunshine” legislation, as a recommendation to the President and Congress in a 2006 report; and Rep. Steve King (R–IA) has on more than one occasion introduced legislation like this. You can find a draft of the bill (the “Racial and Ethnic Preferences Disclosure Act of 2014″) and more discussion here.
Two Things – Two short items to wrap things up with.
First, the Chronicle of Higher Education has done all of us a great favor by collecting a baker’s dozen of its favorite Onion pieces on higher education topics. My favorite is #8: “Minority Student’s Perspective Better Be Pretty Goddamn Diverse If He Wants Full Scholarship.” Many a truth was spoken in jest, and many of the truths the Onion speaks here are politically incorrect.
On the other hand, Inside Higher Ed did no one a favor by printing yet another slam against what are called “colorblind” practices — and on Martin Luther King Day, no less. Here’s my posted response:
Three points. First, with regard to hiring and promoting faculty (as opposed to the admission of graduate students), it is almost always illegal to use preferences based on race, ethnicity, and sex. See here.
Second, while unfortunately such discrimination is allowed in student admissions, it is increasingly (and rightly) disfavored and will be barred sooner or later; and not only is the article correct in its concession that there has been no court decision banning admission practices that have only a “disparate impact,” it is extremely unlikely that any court would do so, since the Supreme Court has said that the applicable federal laws (the Constitution and Title VI of the 1964 Civil Rights Act), ban only “disparate treatment” and not mere “disparate impact.”
Third, it is laudable to be aggressive in rooting out actual discrimination, but discrimination against anyone because of race or ethnicity should be rejected; likewise, it is also fine to get rid of admissions criteria that eliminate students who are actually better qualified than those who are actually chosen, but those criteria should be eliminated because they are defective, not because they have a particular racial and ethnic result: If a criterion were disqualifying white or Asian students who were better qualified than black and Latino students who were actually chosen, that criterion should discarded, too.