Congress is seeking to violate the Constitution on voting rights–and doing so in a bipartisan manner. If this violation of the Fifteenth Amendment passes Congress and goes back to court, America may have to wait through another two years of legal battles that will feed a partisan frenzy.
Breitbart News extensively covered the Supreme Court oral argument, and later explained the Court’s decision, in Shelby County v. Holder, where in 2013, the justices struck down part of the Voting Rights Act of 1965 (VRA).
VRA was passed pursuant to the Constitution’s Fifteenth Amendment, which protects against violating voting rights on account of race. VRA Section 2 forbids any government officer abridging anyone’s ability to cast a ballot based on race anywhere in the nation.
But for states plagued in the 1960s by widespread and systemic racial suppression in voting, VRA also created a preclearance system. Section 5 requires that any jurisdiction subject to preclearance cannot change its voting laws or procedures unless first approved by the U.S. Department of Justice (DOJ) or a federal three-judge panel in Washington, D.C. Section 4 provided the formula to determine which states or parts of states are subject to preclearance. And Section 3 empowers courts to order new states into preclearance if they develop severe racial voter suppression problems.
In Shelby County, the Supreme Court struck down the formula in Section 4 because it was based on voter turnout data from the 1960s and 1970s, which was completely obsolete long before 2013. The Court noted that while the problematic states were in the South in the past, today, the state with the worst record is Massachusetts (which has a black governor), and many states with the best records are southern states.
The Supreme Court upheld the rest of the VRA. It also held that Congress could pass a new law with a new formula, as long as the data for that formula was based on modern voting statistics. The Court did so seemingly confident that this would end preclearance, since modern data is clear that no one state has any sort of systemic voter suppression anymore.
The political left was apoplectic regarding the decision. This frenzy was fueled by President Obama and Attorney General Holder, who led the charge to mischaracterize the decision as having eviscerated VRA protections nationwide.
Perhaps fearing they would otherwise be called racist, some Republicans joined Democrats in attempting to reenact the invalid part of Section 4. The new bill is H.R. 3599, introduced by Rep. James Sensenbrenner (R-WI).
The bill would change the Section 3 power to force states into preclearance from its current requirement of proving that the state intentionally discriminates on account of race. Instead, it would allow merely a statistical showing that there are differences in voter turnout along racial lines, empowering a court to order preclearance.
The bill would also expand the preclearance system in terms of duration, and also how it defines violations. For example, low minority turnout in a state would trigger preclearance, even if there was no misconduct on behalf of the state. It also establishes racial quotas that would lead to the redrawing of legislative districts.
H.R. 3599 also imposes heavy burdens on election officials on reporting to the federal government, and it creates a new standard to empower federal courts to easily issue injunctions against states if someone claims they experienced “hardship” in voting.
Furthermore, it would dramatically increase the power of the U.S. attorney general to get involved in legal fights on a wide range of election issues. Holder has repeatedly shown how far the DOJ can go against the states, even under current law.
The Supreme Court had to strike down the obsolete part of VRA because it became clear that politicians were voting to reenact provisions that they knew were completely out of place in modern America, where Sen. Tim Scott (R-SC) is perfectly safe in his statewide election as a black man in a Deep South state like South Carolina.
The Fifteenth Amendment only empowers Congress to pass voting rights legislation that is proportional to actual voting discrimination. This legislation would be a severe infringement on state sovereignty during a time of unprecedented federal expansion–and a setback for true racial equality in voting rights.
National conservative leaders–including former U.S. Attorney General Edwin Meese and former Ohio Secretary of State Ken Blackwell–have sent Rep. Eric Cantor (R-VA), who is the House majority leader, a letter strongly opposing this legislation and asking for a meeting to discuss it. They express serious concern regarding Cantor’s not making clear whether he supports or opposes the bill, saying, “your ambiguity on a bill that is so clearly and deeply flawed is troubling to say the least.”
See this letter in its entirety below.
Ken Klukowski is senior legal analyst for Breitbart News and a fellow with the American Civil Rights Union. Follow him on Twitter @kenklukowski.