Strike DOWN Section 5 of the Voting Rights Act!

[A previous version of this essay was published in my Feb. 28 miscellany post.The vast majority of my more than 1500 posts are in my signature miscellany format. I've sometimes talked of reorganizing some of my content like my webpage of original blog quotes, e.g., a page of my "political humor" ad libs or repackaged one-off commentaries, which may have "lost" among other segments. The piece was not intended to be a full-length commentary--or I would have started it as a one-off to begin with, but as many writers will tell you, sometimes their work starts to write itself. If George Will had written this piece, I would be quoting it; even if you disagree with my point of view, I believe that it makes for an interesting read. Non-Catholics may have overlooked the essay because of my opening tribute to Pope Benedict, the first pope to resign in six centuries.]

As a self-described libertarian-conservative, I take individual rights (including the right to vote) as well as the the historical principles of federalism and equal protection very seriously. I have worked with a number of professional woman, people of color, Asian immigrants (especially Indians, a few from Pakistan and one from Bangladesh (at NASA-Clear Lake City: he had family issues because he was the only one in his family to stop his education with an MS--everyone else had an MD and/or PhD), and Latinos. I attended a high school in south Texas with many Latino students and faculty. OLL is situated in a barrio in southwest San Antonio; I didn't have wheels: my very first date involved visiting a popular taco stand off campus. One client manager (at a prominent management consulting company) observed Ramadan during the project tenure; I also worked closely with a Jewish project manager, a good friend.

If you looked at my family, we seemed like any other white family: 3 of my sisters are natural blondes; we are all blue-eyed (except one sister has green eyes). (A number of Franco-Americans have brown-eyes and are less fair-skinned, probably more southern than northern European origin.) But my mom still remembers being teased in early school over her "accented" English. And an influx of job-taking French Catholic immigrants whom allegedly didn't know how to control their breeding made a number of Northeast WASPs very unhappy; the KKK in particular terrorized New England Franco-Americans early in the twentieth century.(Immigration of course on both borders tapered off by the Depression; my ancestors immigrated during the nineteenth century.)

I don't speak for all Franco-Americans; but I don't think you saw comparable initiatives designed to allocate a quota of Franco American lawmakers or establish bilingual education in the public schools. When I started kindergarten, French was my dominant language; the public school system didn't teach me English; my mom did, and I quickly picked it up to keep on track in school.

Most Catholics have a keen moral sense of equal protection; what some Southern states were doing wasn't simply a matter of federalism (states' rights); states were violating individual rights. Majoritarian abuses of power are no more acceptable at the state level than at the federal level, i.e., the Ninth Amendment. The ultimate defense of individual liberties is the courts, not the legislature. However, voting, like many government-sponsored operations is implemented on the local level. The problem with section 5 of the Voting Rights Act is that it arbitrarily subordinates local administration of elections to the Feds; for example, the Feds could veto a local change allowing more at-large officeholders or making certain elections non-partisan if the Feds believe it could result in fewer minority lawmakers, a de facto quota system. It seems odd this is necessary at a time a man of color won a majority of votes in 2 consecutive elections. By all accounts, minority groups heavily voted, if not disproportionately overperformed in those elections. CATO Institute has a good discussion of the clause 5 issue here. In brief, the original section 5 was upheld decades ago as an extraordinary mechanism in dealing with regionally pervasive issues that no longer exist. The 2006 Act extended this Federal oversight for another 25 years

What set me off on this rant was a snarky, amateurish, provocative Washpo op-ed  published yesterday where the author seemed to praise the bullying behavior of Obama-nominated Sotomayor ("Sotomayor is blunt and caustic, repeatedly interrupting. In an opinion this week, she harshly criticized a Texas prosecutor for a racist line of questioning.") and Kagan. whom is portrayed more like an elitist sniper, eager to mock allegedly hypocritical conservative "activists", on the bench with her or the lawyer for the Alabama county wanting section 5 struck. The author's scathing regard of "Nino the Terrible" Scalia is transparent, and she all but does a "you go, girls" over tag-teaming and putting Scalia and conservative attorneys in their place.

The funny thing, though, is the author doesn't make her point. It's clear she disagrees with Scalia's point of view, but he is not presented as engaging in boorish behavior, like Kagan and Sotomayor. I found even her presentation of him as funny, not judgmental and sarcastic, e.g., “Even the name of it is wonderful,” he said. “The Voting Rights Act: Who is going to vote against that?” SPOT ON, SCALIA! I have in recent posts spoofed the attempts of elitist progressives focusing more on gimmick names than serious public policy; I've said, "What's next? The I Love Moms, Babies, and Puppy Dogs Act?"

But my ultimate scorn is for this piece of nonsense: "Surprisingly, the five conservative justices seemed willing to strike down a landmark civil rights law (the provision that gives extra scrutiny to states with past discrimination) that was renewed with near-unanimous votes in Congress. Conservative jurists usually claim deference to the elected branches, but in this case they look an awful lot like activist judges legislating from the bench,"

Let me first deal with the disingenuous point of the Congressional Votes to renew the Voting Rights Act (98 to 0 in the Senate and 390 to 33 in the House). Sotomayor's suggestion that the Congress made a determination that ongoing discrimination exists, hence renewal is totally without foundation and I submit a departure from reality. First, the GOP was in control of Congress. A near-unanimous vote means that a measure wasn't seriously considered--like meaningless proclamations. Why? 2006 was going to be a challenging year for the GOP; they had to do do something on the issue and they didn't want to explain why they voted against the Voting Rights Act. Sotomayor knows well enough that the opinion of a majority is not relevant when it comes to violations of individual rights; that's what the courts are for. Scalia is right in his response to Kagan, as well. The GOP clearly concluded it was easier to go with the flow. don't sweat the small stuff, even at the expense of throwing local/state government in the South under the bus. When I hear the disingenuous solicitor general push back on Scalia's speculating on the motives of lawmakers, this is simply a matter of common sense and the nature of unanimous votes in a real democratic republic.

I especially despise Kagan's pointing out Alabama has no statewide elected blacks; it's a judicial cheap shot. Blacks make up about a quarter of the population of Alabama. Apparently the Kagan test is until a black is elected statewide local elections in a state are presumed defective. The success of Gov. Haley and Sen. Scott of SC prove that racially/ethnically diverse candidates with the right political message can win in the Old South.

But let me return to the ideological nonsense, the allegation that the conservative judges are hypocritical "activists"; first, the Supreme Court earlier specifically noted the extraordinary nature of Section 5; second, there is a question of whether certain states or regions are being discriminated against on arbitrary grounds; third, there's the Constitutional principle of federalism. Stare decisis is not a religion; just because past courts hadn't recognized that for-profit organizations have a right to free speech or the people have a right to defend themselves against violence, doesn't mean those rights don't exist. Here, the issue is whether localities are empowered to make electoral reforms without getting a sign-off from the Feds. If localities implement defective controls, those still can be challenged in court. It's unconscionable to tell people in Alabama, yes, you live in a democracy, but control over your own elections is ultimately held by the federal government. That is TYRANNY. The Court has been signaling for a while in other matters (e.g., affirmative action) that extraordinary measures have a limited shelf life. A good first step is for SCOTUS to strike section 5 of the Voting Rights Act.

[Ed 3/01/13]. I want to comment here further on this point of confusion of "legislating from the bench". In our version of a democratic republic, the majority rules, subject to certain constraints, some of which are procedural (think of the Senate filibuster) and others which are structural (judicial review and the separation of powers). I see the role of the court system as more normative or qualitative: it may determine that a certain policy materially violates individual/group (minority) rights. What I see as legislating from the bench is when judges go beyond their evaluative capacity and start dictating policy, e.g., raise taxes or design ballots. It's like the difference between a professor handing back a corrected paper to the student and saying 'Do it over' versus the professor personally rewriting the paper himself reflecting his own preferences. The judge rewriting policy is not accountable to the people through elections.

Social liberals want to go beyond simply ensuring the right to vote; for example, they might want to ensure certain outcomes, e.g., if people of color amount to 13% of population, at least 13% of legislators should be of color. This is going far beyond the initial problem: ensuring the right to vote.

We all learn "life isn't fair". Most attractive coeds in high school and college didn't seem to be aware of my existence. My parents are a couple of inches shorter than average, so I was never going to be tall, dark, and handsome; I didn't drive until I was 22, because Dad couldn't take the hit on his car insurance.. What I learned is that some women really like smart, funny guys whom listen and are able to carry on a decent conversation. 

I think in a democracy when you are in the minority (and I'm also referring to racially/ethnically diverse legislators representing impoverished districts) you similarly have to rely on the art of persuasion and the ability to negotiate and compromise. In IT projects I typically knew exactly what needed to be done, but I almost never had the formal authority to dictate a solution. It's clear that despite a more diverse Congress and throwing billions at troubled inner cities and morally hazardous domestic programs, we have not seen results. This is a center-right nation with overextended obligations and limited resources.

But returning to issues involving state/local violations of individual/group rights (decided  based, say, on the Fourteenth Amendment), I would think that the local authorities should be given sufficient initial opportunity to resolve specified findings through appropriate policy remedies. If the courts determine no good faith response, federal policies and/or enforcement efforts may be necessary. But any necessary intervention should be limited in nature and duration.