Activision

It’s not a video game! It’s the new U.S. legislature with the voice of a very few! Five right wing judges who have adopted a legislative role as super-judicial activists. They are having a thrilling time ignoring constitutionally-supported statutes and even their own precedents. They are going out of their way to create new laws allowing corporations and unions virtually unlimited rights to finance political campaigns as long as such financings are not controlled by the actual candidates themselves (Citizens United). Wink, wink! They just sent the heart of a law back to Congress because it needs updating (Shelby County vs Holder), a power that the Supreme Court has never had before. They say that Congress was still relying on information generated four decades ago… even though Congress, in its legislative capacity, had four chances to review the underlying research… four amendments later… including the last amendment/extension under the Bush administration in 2006. Hmmmm… that would be… let’s see… er… seven years ago?

Passed in 1965, the Voting Rights Act targeted states with a long history of both low voter registration and erecting barriers that effectively discriminated against certain classes of minorities. “Echoing the language of the 15th Amendment, the Act prohibits states from imposing any ‘voting qualification or prerequisite to voting, or standard, practice, or procedure ... to deny or abridge the right of any citizen of the United States to vote on account of race or color.’” Wikipedia. Maybe the majority justices know if they send something back to our do-nothing, deadlocked Congress for new findings, they have effectively reversed and repealed that law.

Guess they didn’t like the law and really had no justifiable basis for overturning the operative provisions that Congress has been reviewing with rather consistent frequency over the years. Swing note Anthony Kennedy made the difference in this narrow 5-4 decision. The only African American on the panel, Clarence Thomas, wrote a separate opinion which would invalidate the entire Voting Rights statute. To illustrate the volatility of the Roberts court, the next day, Associate Justice Kennedy moved to the other side and cast the vote (and wrote the majority opinion in Windsor vs. United States) that invalidated the sections of the 1996 Defense of Marriage Act that stopped the federal government from recognizing same sex marriages. The court (in Perry vs. Hollingsworth), citing procedural reasons, also refused to overturn a lower court invalidation of a California ballot initiative – the infamous Proposition 8 – that banned such same sex unions.

Specifically on the Voting Rights Act, the court struck down section 4 of the act, the provision that defines the states to which the provision of the act applies, and while they didn’t overturn the operative section 5 of the act, without section 4 to designate the criteria and the states, section 5 is now meaningless. Literally hours after SCOTUS released its decision, Texas reinstated its voter photo ID law.

So why was that law necessary? “The 15th Amendment, ratified on February 3, 1870, provided that, ‘The right of U.S. citizens to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.’ Additionally under the Amendment, the Congress was given the authority to enforce those rights and regulate the voting process…

“Soon after the end of Reconstruction, starting in the 1870s, Southern Democratic legislators found other means to deny the vote to blacks, through violence, intimidation, and Jim Crow laws. From 1890 to 1908, 10 Southern states wrote new constitutions with provisions that included literacy tests, poll taxes, and grandfather clauses that permitted otherwise disqualified voters whose grandfathers voted (thus allowing some white illiterates to vote), some with the aim and effect of re-imposing racially motivated restrictions on the voting process that disenfranchised blacks. State provisions applied to all voters and were upheld by the Supreme Court in early litigation, from 1875 (United States v. Cruikshank) through 1904…

“During the early 20th century, the Supreme Court began to find such provisions unconstitutional in litigation of cases brought by African Americans and poor whites. States reacted rapidly in devising new legislation to continue disfranchisement of most blacks and many poor whites. Although there were numerous court cases brought to the Supreme Court, through the 1960s, Southern states effectively disfranchised most blacks.” Wikipedia. So racism is dead, and voting laws aimed at limiting minority access to the vote aren’t needed anymore. The case was brought in Texas to fight a voter ID law that particularly burdened lower-income minorities. But let’s say that racism is dead (Not!)… why does this court have the right to implement that assumption?

Bottom line: this was a fully constitutional statute, passed or extended with Democratic and Republican support, even Presidential signature from both parties. But this court didn’t like that law, and made a decision that is such a departure from Supreme Court protocol and precedent that it seriously jeopardizes the credibility of this court in just about any decision it might make. Whether you like the law or not, the proper venue for reversal - given the court’s own reasoning - is Congress… not the court!

I’m Peter Dekom, and this is a profoundly dangerous precedent.