A Philosopher's Blog


Posted in Ethics, Law, Politics by Michael LaBossiere on June 26, 2013
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The Voting Rights Act of 1965 was critical in making American democracy a reality. Before the law passed, disenfranchisement was the order of the day in some states and the law was intended to prevent citizens from being unjustly denied their right to vote.

On 6/25/2013, the Supreme Court voted 5-4 and ruled that Section 4 of the VRA is unconstitutional.  Section 4 specifies which states must get federal preclearance  before making changes to voting procedures. Not surprisingly, the states covered by Section 4 were predominantly southern states with an established history of disenfranchising minority voters.

Chief Justice Roberts’ main argument against Section 4  focused on his claim that it is “based on 40-year-old facts having no relationship to the present day.” Roberts does accept that Congress can determine which states require preclearance, but this must be based on current data. The court left Section 5, which defines the preclearance requirement, intact. However, by striking down Section 4 the court has neutralized Section 5.  This is because Section 5 now applies to no states. Congress can, however, pass a new bill to replace Section 4.  Justice Thomas wanted to strike down Section 5 as well and it seems possible that if congress did pass a new bill to replace Section 4, then the court would strike down Section 5 as well (assuming the make-up of the court remains the same). However, it seems unlikely that this will happen-given the nature of congress, the chance of such a bill passing is rather low.

By striking down Section 4, the court has not given states a free hand to do whatever they wish in regards to voting.  That is, all the other laws governing voting rights remain intact. The main impact is that the states once covered by Section 4 no longer need to get federal approval to make changes in regards to such matters as voter ID requirements or early voting. Such changes can, obviously enough, still be challenged-but only after the changes have taken place. The obvious concern is that this opening will be used to disenfranchise voters using methods that will be found to be illegal, but only after the damage is done.

Roberts’ line of reasoning does have a certain appeal. The gist of his argument is that the federal intrusion into the states in question is based on old data (from 40 years ago) and this data fails to warrant such an intrusion. Somewhat ironically, those who agree with Roberts’ point to the election of Obama (especially the turnout of black voters in the states in question) as evidence that there is no longer  a need for Section 4. The court has previously upheld the VRA on the grounds that it was needed to address the efforts of Southern officials to disenfranchise black voters. Since, according to Roberts, there is only old data to support this need, the intrusion is no longer warranted. Crudely put, the argument is that since the South has changed, there is no longer a justification for treating it as if it was acting in the old, bad ways.

However, there are some concerns with Roberts’ reasoning. One obvious point of concern is that Roberts’ argument seems to be that since the data is old, we should assume that the Southern officials no longer have any intention to disenfranchise minority voters. Thus, Section 4 is unconstitutional.  However, it is rather a leap from the data being old to the inference that the VRA has permanently solved the problems it was created to address. Also, given the attempts to disenfranchise voters it seems reasonable to think that the problem still remains.

A reasonable reply to this is that it does not need to be assumed that the South is fully reformed in terms of voting rights. What is needed is merely the fact that the data is out of date and hence can no longer warrant a continued disparity between the states. If a bill can be passed using current data, then the intrusion could be justified once again.  However, it seems likely that no such bill will be passed and thus this aspect of the VRA has been nullified.

My own view is somewhat conflicted. On the one hand, having a disparity between the states in terms of what they can and cannot do without federal approval seems unfair. After all, one may ask, why should Massachusetts have more liberty than Texas? On the other hand, there is the principle of relevant difference: if a state is significantly different from another state in regards to voter disenfranchisement, then a difference in treatment can be justified on this ground. While the notion of states’ rights does have some appeal, it seems self-evident that an appeal to states’ rights cannot be used to warrant denying an individual his or her legitimate individual rights. That is, a state does not have the right to deny the rights of individual citizens just because it is a state.

As might be guessed, I tend to favor having a consistent system in regards to voting rights that does not single out states but, at the same time, guarantees that individuals will not be robbed of their right to vote. To this end, having nationwide laws about relating to voting would seem to be sensible. As far as the justification, the obvious approach would be to focus on the federal elections-this would warrant a national approach. I also agree that legitimate concerns about voter fraud should be addressed by such a nationwide policy.

Getting back to the main issue, I am rather concerned about the impact of the ruling. In general, I suspect the effect will be a significant increase in efforts to disenfranchise voters in various ways (as we saw with the voter ID proposals and related endeavors to suppress voting). While these efforts will be met with after the fact law suits, this will involve fighting a multitude of small battles after damage has already been done. This ruling, I think, is a bad one for those who value the right of all citizens to vote.

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14 Responses

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  1. drewdog2060drewdog2060 said, on June 26, 2013 at 8:51 am

    How exactly where people disenfranchised? It isn’t at all clear from your post how this happened. Perhaps being a UK citizen I am not aware of facts which you, as an American would take for granted. Thanks, Kevin

    • WTP said, on June 26, 2013 at 4:33 pm

      In Mississippi. Back in 1965. Kinda like when the Germans invaded Poland in 1939. You just don’t let s**t like that go. It’s good to the last drop.

    • Michael LaBossiere said, on June 27, 2013 at 11:57 am

      Do a Google search of Jim Crow and you’ll see how it was done.

  2. muggleinconverse said, on June 26, 2013 at 9:55 am

    Well said.

  3. T. J. Babson said, on June 26, 2013 at 10:00 am

    The entire Democratic party is stuck in a time warp from 1964. The country is no longer black and white but many shades of brown. Over 13% of the people living in the U.S. weren’t even born here. That number is nearly 30% in California, and nearly 20% in Texas. In a few years whites will drop to less than 50% of the population and will be just another minority.

    Another thing to watch out for is historical amnesia. People like Bull Connor who were intimidating voters in the South were by and large Democrats. The Ku Klux Klan was primarily associated with the Democratic party.

    • WTP said, on June 26, 2013 at 11:29 am

      But you’re giving us facts, TJ. What we really want is emotions. Strong feelings. That’s what gets out the vote. If this were about the Tea Party in some way, we’d see a different story.

    • Michael LaBossiere said, on June 26, 2013 at 12:56 pm

      You are right-the Democratic party was once the party of choice for racists. But, times change and now minorities tend to favor the Democrats on the incomprehensible grounds that the Democrats are more likely than Republicans to act in the interest of many members of said minorities.

      • T. J. Babson said, on June 26, 2013 at 1:16 pm

        So which party was doing the intimidating when the VRA was passed in 1965?

      • T. J. Babson said, on June 26, 2013 at 1:25 pm

        A strong argument can be made that the Dems are still the part of choice for racists, or at least racialists.

        Why price did Jessie Jackson pay for his “hymietown” remark? What price did O pay for his “typical white person” remark?

        The Dems see everything through the prism of race. They use it to divide the country.

        • Michael LaBossiere said, on June 26, 2013 at 2:09 pm

          An interesting point. There is certainly a form of racism that operates under the guise of being against certain forms of racism.

      • WTP said, on June 27, 2013 at 6:56 am

        Democrats are more likely than Republicans to act in the interest of many minorities…

        Much like campus radicals, per David Thompson

        Just as Pinocchio went off to school with high hopes, only to be waylaid by J. Worthington Foulfellow, minority students are met on the way to campus by hard-left radicals who claim to have the interests of the newcomers at heart but in reality prey on them to advance their own selfish interests. Of course, what black students need is the same solid traditional education that had raised Irish, Italians, and Jews to full equality. But that would not serve the campus radicals’ purpose. Disaffected radicals wanted to swell the ranks of the disaffected, not the ranks of the cheerfully upward mobile. Genuine progress for minority students would mean their joining and thus strengthening the mainstream of American society – the mainstream that campus radicals loathe…

  4. ajmacdonaldjr said, on June 26, 2013 at 11:06 am

    Modern day “progressives” are often revealed to be conservatives:

    “Keep the voting laws stuck in 1964 forever!”

    “Keep the abortion laws stuck in 1973 forever!”

    So much for progress, right? 😦

    Remember, the same Supreme Court that found “a right to privacy” in the US Constitution, in order to decide Roe v Wade in favor of Roe and abortion on demand, cares not that the NSA gathers-in and mines all our data.

    Keeping the voting laws stuck in 1866 forever?

    The Civil Rights Act of 1866 – Perhaps we should return to the Reconstruction Era and simply have the federal government make it so that only black representatives can represent those evil, racist Southerners, again? “In June 1866, Congress proposed the 14th Amendment to the Constitution, which gave citizenship to blacks. It also guaranteed that all federal and state laws would apply equally to blacks and whites. In addition, the amendment barred former federal and state officeholders who had supported the Confederacy from holding high political office again.” http://whgbetc.com/mind/reconstruction1.html

    VIDEO – The Rise of Congressional Power – http://youtu.be/69ZVflLas2o

    “Physical and social differences between North and South did not in themselves necessarily imply an irrepressible conflict. They did not mean that civil war had been decreed from the beginning by Fate. It came when problems arising from rapid growth and expansion got into such shape that they could not be solved by discussion, tolerance, and compromise…How this happened is not entirely clear. We only know that sectional rivalry in the nation turned into a struggle between…‘civilizations,’ between progress and backwardness, between right and wrong. Men ceased to reason, to tolerate, to accept compromise. Good men then had no choice but to kill and be killed.” ~ Avery Craven, The Coming of the Civil War (Chicago: University of Chicago Press, 1942, 1957, 1966; 1967) p. 1-2

    See: A superior culture cannot permit its foundations to be poisoned and destroyed – https://ajmacdonaldjr.wordpress.com/2013/06/01/a-superior-culture-cannot-permit-its-foundations-to-be-poisoned-and-destroyed/

  5. WTP said, on June 26, 2013 at 1:46 pm

    After all, one may ask, why should Massachusetts have more liberty than Texas?

    And with this sentence, Mike demonstrates that he has no understanding of our constitution. And he’s a PhD from Ohio State. In fact this whole paragraph is based on Mike’s feelings about what Mike thinks is “fair”.

    And the whole post ignores the fact that there is no right to vote in the constitution. The constitution only states that where rights exist, they may not be denied on the basis of race, sex, age, etc.

  6. WTP said, on June 26, 2013 at 1:55 pm

    And more for Mike to chew on, Massachusetts, of all places, is seeking a waiver from Obamacare…


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