Insufficient Attention or Hyperbole Alert? The Supreme Court and the Voting Rights Act

Andrew Cohen’s piece at the Atlantic on the VRA decision has the following headline:

On Voting Rights, a Decision as Lamentable as Plessy or Dred Scott

And no, it isn’t just the headline writer saying this since Cohen himself writes:

It will be viewed by future scholars on a par with the Court’s odious Dred Scott and Plessy decisions and other utterly lamentable expressions of judicial indifference to the ugly realities of racial life in America.

Really?  As lamentable?  On par?  I am not an expert on the legal issues involved and thus don’t have a strong or well-informed opinion of the case.  Given my knowledge of American history (and the fact that I’m a Yankee), I have a knee-jerk sympathy to the idea that southern states should be watched closely when it comes to civil rights issues.  But would even most critics of the Court’s decision really say it was “as lamentable” as – or “on par” with – cases that respectively: 1) “declared that slaves were not citizens of the United States and could not sue in Federal courts,” “declared that the Missouri Compromise was unconstitutional and that Congress did not have the authority to prohibit slavery in the territories,” and required two amendments to the Constitution to fix (Library of Congress); and 2) upheld the racist Jim Crow legal regime that allowed for segregation and created the awful “separate but equal” standard???

If Cohen is right, why are we talking about anything else since these are two of the most pernicious court cases in the history of the Republic?  Or is Cohen engaging in hyperbole that undermines the reality that Dred and Plessy were wayyy worse than anything contemporary courts would say or could get away with today?

6 thoughts on “Insufficient Attention or Hyperbole Alert? The Supreme Court and the Voting Rights Act

  1. I would argue it is a bit of hyperbole; not because Southern states won’t attempt to use it as an opportunity to disenfranchise minority voters (I believe they will), but because there are legal remedies available to check those attempts. I do think it 75 years, people will have a rather dim view of Roberts, Scalia, et al. based on this decision though.

    There is already talk of a backup plan which is litigate on anything. As opposed to the DoJ preclearing changes, the thought is to file suit on any change (e.g., moving the polling place across the street) and force counties to litigate. This was the strategy used to some extent in places not covered by the VRA. Counties would still face the same hurdles (e.g., disparate impact) for making their changes. The only risk is not getting an injunction during adjudication; given undoing voting is like unscrambling an egg, that seems unlikely. I’d say the most likely outcome is for the federal and state courts to get even more gummed up.

    Another point made in the NYT yesterday was that it further alienates minority voters (especially black voters) from the GOP. If Mitt Romney had merely done as well as Bob Dole among black voters and gotten a few to stay home (by not being so riled up about their franchise), he likely would be president now.

  2. The facts in evidence demonstrate that there is the least disenfranchisement in Mississippi and the most minority disenfranchisement in Massachusetts. The majority opinion merely states that Section five cannot be justified in the sixteen states subject to it, if it cannot be justified in Massachusetts either. If Congress wants to continue requiring preclearance then it needs to do it in all fifty states or demonstrate that it is justified in the states subject to it. I don’t personally have a problem with preclearance in Texas, where I live, as long as the residents don’t have a problem with preclearance there, in places like Massachusetts, where they live and there is clearly demonstrated minority voter disenfranchisement.

    To Michael and Grover, I say shame on you for your suspiciousness of southerners in the 21st century. Your suspicians say vastly more about you than about southerners. You either don’t know any modern southerners or haven’t been to the south lately.

    1. FYI, I live in Texas too. I used to live in Massachusetts (and Michigan and Minnesota). I can say without doubt that the views of the average person I come across in Texas makes me much more concerned about my franchise than in any of those other states. Now if you live in Austin or San Antonio, etc., I can see how you might have a different view. I don’t, so I don’t…

      Also, using voter turnout differences as evidence of disenfranchisement might make sense when it is 7% vs. 75% like pre-VRA Mississippi, but not so much when we are talking about a 14% (2008 data) difference in a state where most races (even low-level local positions) are decided during the primaries. There are also a lot of idiosyncratic problems with the MA voting data; if it were a generalizable point, Roberts (or the reps of Shelby County that he lifted it from) could have used Alabama and New York.

      1. I live in Houston. I don’t believe that there is such a thing as an average person, nor would I characterize a particular group of people as having a propensity to behave in a particular way. There is a word for people who make those types of meritless characterizations.

    2. You should look and note that I was very careful in my word usage. I did not say southerners as a class of people. I said “southern states” – that is a different thing (as my post today makes clear, there is a state-society distinction).

      1. A state is a legal fiction. It is not a real person. It can’t do things. People can do things. And people within the legal boundaries of states can do things.

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