Saturday, December 6, 2014


In 2013, in a 5-4 vote, the Supreme Court struck down the heart of the 1965 Voting Rights Act. To help justify wiping away the core of the VRA Chief Justice John Roberts cited voter registration differences between 1965 and the 21st century. Referring to the 2012 election Chief Justice Roberts wrote, "African-American voter turnout exceeded white voter turnout in 5 of the 6 states" covered by the VRA. This helped Roberts to claim, "Our country has changed."

In doing so Chief Justice Roberts was suggesting that - after President Obama won the presidency a second time in 2012 - race is not as big an issue in America as it was in the past. Hence, we didn't need all of the Section 5 provisions that required several states to get federal approval when they wanted to change their voting laws.

Did Chief Justice Roberts and his 5-4 majority ever get it wrong.

Specifically, we need to acknowledge that Chief Justice Roberts and his 5-4 majority were swayed by enthusiastic African-Americans turnout in 2012. This convinced them that 2012 turnout was a new norm. It wasn't.

Worse, they ignored how eliminating impediments like the poll tax with the VRA may have increased voting access, but that access had been diluted by what Associate Justice Ruth Bader Ginsberg called "second-generation barriers." These barriers include racially infused gerrymandering (redrawing districts to favor specific groups), among other efforts.

Immediately after the Supreme Court's 5-4 decision Republican-led states began making arrangements to implement "second-generation barriers" that Associate Justice Ginsberg referred to - like requiring voter IDs to fight voter fraud. They did this in spite of the fact that voter fraud is virtually non-existent in America.

Indeed, you stand a greater chance of being hit by lightening or by being attacked by a porpoise than you do of uncovering a case of voter fraud (it accounts for a paltry .0004 to .0007 percent of all voter activity).

Numerous states also began blocking or turning back efforts designed to expand voter turnout. This is troublesome because middle-class and working Americans benefit the most from efforts that encourage early voting, same-day registration, and out-of-precinct voting.

Politically driven efforts designed to require voter IDs and stifle voter turnout made it clear that Chief Justice John Roberts, and his 5-4 majority, got it wrong. Race is still an issue in America.

How can I make this claim, you ask? Simple. Federal judges in Arkansas, Pennsylvania, Texas, and Wisconsin have ruled that requiring voter IDs disproportionately impact people of color - and women, since they are most likely to change names after getting married/divorced - because IDs are costly, and can't always be accessed. Federal judges in these states ruled that requiring a voter ID card, in effect, amounts to a new poll tax that prevent people of color from voting.

As well, all the evidence makes it clear that people of color are negatively affected when early voting efforts are curtailed. It's the same story when same day registration and out-of-precinct voting are banned. This is exactly what Republican-led states set out to achieve once the Roberts Court ruled against the VRA.

These are inconvenient facts that Chief Justice Roberts and his colleagues did not anticipate, or chose to ignore. The end result has been voter suppression efforts across America.

What these voter suppression tactics help us see is there are still many Americans who want to keep an entire segment of America on the bubble of our democracy. What distinguishes contemporary efforts from previous voter suppression is that today's "second-generation barriers" aren't as blatant, or in your face as they were during the Jim Crow era. They're camouflaged, with an Orwellian flair: We are told that voter ID laws and early voting limits are necessary to protect the integrity of our democracy.

But we all know better.

The reality is manipulating districts, requiring voter ID, and limiting voting opportunities are pursued with the goal of making it more difficult for people of color to vote. The fact that people of color (and women) disproportionally vote Democratic is, of course, just a coincidence - according to proponents of the new voter suppression laws.

Undermining the integrity of democracy in America by making it harder for people of color to vote is just one example of how wrong Chief Justice Roberts was on the issue of race in America.

To be sure, there have been notable advances. But in numerous ways our country has not changed.

Events in Ferguson, Missouri, Cleveland, and New York demonstrate that America really hasn't evolved sufficiently when it comes to issues of trust built around race. But this shouldn't come as a surprise. Consider what black Americans see happening in their communities.

A white candidate with a criminal record still stands a better chance of being employed in a job that's pursued by a black youth with no criminal record. As well, according to the FBI, even though African-Americans, Latinos, and whites dabble in specific drugs at the same rate, people of color are arrested and incarcerated at double and triple the rates of drug users in the white population.

Then we have an ugly statistical reality that was played out in the streets of Ferguson, Missouri.

According to data drawn from the FBI's Supplemental Homicide Report, the chances of a young black male in America being shot by law enforcement are 21 times greater than if they were a young white male. Specifically, blacks from the ages of 15 through 19 "were killed at a rate of 31.17 per million" by police officers, while white males in the same age range are killed by police at a rate of 1.47 per million.

These realities are not new. While black communities across America may not be able to cite FBI statistics, they understand what's happening in their neighborhoods. In turn they ask, with legitimate frustrations, "What is it about young black men that make them scarier to some police officers"?

Still, Chief Justice Roberts and his colleagues chose to ignore these realities when they suggested that America "has changed."

Wherever you stand on the events in Ferguson, Missouri, what African-American communities see are a few professionally trained officers claiming that "their emotions" got the best of them. For people of color, they see a world where saying, "I feared for my life" (or some variant of this claim) is now every police officers de facto "Get Out of Jail Free" card if they kill an unarmed black man.

Whether you're black or white, this is one big emotional slippery slope that undercuts law enforcement's legitimacy in the eyes of black communities across America, and it needs to be addressed.

At the end of the day, recent voter suppression efforts and evolving Ferguson-like events tell us that the Supreme Courts 2013 logic on the Voting Rights Act was wrong. Big time. Specifically, it tells us that - contrary to Chief Justice Roberts' assertion after the Supreme Court's 5-4 VRA decision - the racial undercurrents of our nation have not changed as much as we would have liked.

We can continue to stick our head in the sand, and pretend that business as usual is what's needed. Or we can take a look at why so many people of color in general, and African-Americans in specific, are being locked up or shot by law enforcement at rates that far outpace white America. This is what's undermining the integrity of law enforcement for many African-American communities across our nation.

Ignoring our emerging realities will not make them go away. Opening legal doors that undermine the integrity of democracy in America is not the path we want to take. Allowing a small group of trained police professionals to embrace their fears, while dismissing the concerns of people of color as foolish paranoia is also not the path we want to take.

One thing's certain. We shouldn't look towards the Supreme Court for guidance on this issue.

- Mark 

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