In an odd coincidence, I’ve had to do some background research on section five of the Voting Rights Act while working on another story for the American Prospect. So I have some more to add to B-Serious’ post on the VRA challenge heading to the Supreme Court. I spoke to Kristen Clarke of the NAACP Legal Defense Fund yesterday, who gave me the story on the VRA’s renewal passed by Congress in 2006.

It’s mad important that Congress reviewed the preclearance provision of the VRA less than three years ago and passed it. That’s part of what makes the Supreme Court’s willingness to hear this case really suspicious, at least in my view. At the time,   the Republican Chairman of the House Judiciary Committee said “The need for the Voting Rights Act is as great now as it was 24 years ago”. Clarke  explained that both Houses of Congress heard hours and hours of testimony on both sides of the issue.  “The great weight of that evidence at the end of the day pointed to the very strong and continuting need to renew the section five preclearance provision,” says Clarke.  So after exhaustive research on whether or not preclearance was still necessary in those areas where it still exists,  Republican congress passed it, and it was signed by a Republican President.

What makes me nervous about the Supreme Court willing to hear this challenge to Section 5 is simply this: The argument being made here is no different than the one that was made in 1965, when black people simply weren’t allowed to vote in the south–that this is an infringement on state sovreignty and that it makes the states that have preclearance feel bad. I’m sorry, but people’s right to vote is more important than your feelings. From the New York Times:

There is no reason, the district’s lawyers told the justices, to presume “that jurisdictions first identified four decades ago as needing extraordinary federal oversight” today remain “uniformly incapable or unwilling to fulfill their obligations to faithfully protect the voting rights of all citizens in those parts of the country.”

No assumption need be made, because Congress investigated and found sufficient evidence of ongoing discrimination less than three years ago. The court won’t be doing any investigating, if anything they’ll be assuming that preclearance is no longer needed based on an argument that has been rebuffed before. They’ll be deciding whether preclearance is an infringement on states’ rights. 50 years of cases says it isn’t.

But of course if you came to John Roberts and told him that a black man had been shot by police while lying face down and restrained on the pavement he’d find it really offensive that you mentioned the man was black. 

 The reason why Republicans are excited about it is because preclearance prevents them from passing restrictive laws in southern states. Whereas this election year, you saw voting rights groups basically filling the role of the Bush Justice Department in protecting our right to vote by litigating cases all over the country, preclearance prevents costly litigation in those areas where discrimination is most likely to occur. Also, while voting rights groups gather evidence to prepare their cases, the descriminatory laws stay on the books. 

I’ll say this: there should be a way for states to get off preclearance, to prove that they can be trusted. But the Court, if it decides preclearance is unconstitutional, won’t be doing that. They’ll be removing 50 years of voter protections wholesale, just a few years after Congress renewed them. That’s called legislating from the bench.

We know how the GOP plays the game. They push for the kind of restrictive election laws that will push down black and Latino votes, because we’re more likely to vote for Democrats. Removing preclearance will make all that easier. Which is why they want it gone.

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