- Published on Thursday, 29 September 2011 09:30
- Written by Roger Clegg
Last week, federal district court judge John Bates issued a decision in Shelby County v. Holder upholding the constitutionality of Section 5 of the Voting Rights Act, which requires some jurisdictions (mostly but not exclusively in the South) to get permission from the federal government before making any change, no matter how trivial, in practices and procedures related to voting.
This was disappointing but not surprising. It would take a very brave federal judge to stick to rule-of-law principles and find Section 5 unconstitutional. Such action would bring a torrent of hysterical wrath from the media and the professional grievance industry that makes up much of the civil-rights community these days.
There’s another consolation: The court’s decision is not of great import, since one way or another the issue is headed to the Supreme Court. The Justices ducked the Section 5 constitutional question in 2009 in a Texas case. They should not be surprised to see the issue before them again in a year or two.
Most of Judge Bates’s 151-page opinion was a review of the record Congress concocted (and we use that word advisedly) in 2006 to justify extending the statute. Section 5 was originally—and, at the time (1965), quite justifiably—enacted for only five years. There was no deep investigation by the judge into the credibility of that record—just a recitation of it.
The court was also wrong to say that the “central question posed by this case . . . [is] does the 2006 legislative record contain sufficient evidence to justify Congress’s decision to subject covered jurisdictions to section 5 preclearance for another twenty-five years?” The real question before Judge Bates was whether the record showed that there was intentional discrimination in the covered jurisdictions (compared to noncovered jurisdictions) that can be addressed only by imposing a remedy: (a) even where there has been no actual, intentional racial discrimination (which is all Congress has authority to ban), but only a disproportionate racial “effect,” (b) that subjects state and local jurisdictions to the very intrusive “mother-may-I” preclearance process, which is an extraordinary intrusion into state sovereignty at odds with the federalist structure of the Constitution, and (c) that will require, as a practical matter, that local governments frequently engage in actual disparate treatment—that is, politically correct racial segregation in drawing voting districts during the redistricting process.
Indeed, it can be argued that this legislation should be held to strict scrutiny or something very like it given the intentional discrimination that it requires of local governments. This is an issue that the Supreme Court will have a hard time avoiding when these cases come before it. One hopes that this time the Court will toss out an antiquated statute that a timid Congress was unwilling to scrap in 2006, decades after its legal justification (and its constitutionality) had expired.
One last note on this topic: Anyone interested in these issues should read CEO board member Abigail Thernstrom’s wonderful book, Voting Rights—and Wrongs: The Elusive Quest for Racially Fair Elections.
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A couple of followup items to the Center for Equal Opportunity’s trip to Wisconsin earlier this month. Below are three YouTube links you might enjoy. The first two are fairly short clips from my debate at the University of Wisconsin; the third is the first in a series that captures the whole debate. (Warning: The sound quality is pretty uneven.)
As I wrote last week, the bottom line of our trip—with the protestors, politically correct university officials, and media excitement—was great: CEO’s studies got lots of publicity, and the issue of racial and ethnic admissions preferences is on the front burner in Wisconsin (a state legislator has already announced that he plans to have hearings on whether the university is violating the law). Our opponents have been revealed as intellectually bankrupt, if not downright thugs.
The only bad news, but it’s important bad news: For the Center for Equal Opportunity to continue doing this kind of work, we need your support now. In the struggling Obama economy, our funding support is way down. So we know that times are tough—but fighting racial and ethnic preferences is not a task that can be put off. Please send your fully tax-deductible contribution to the Center for Equal Opportunity today!