The Supreme Court ruled this morning that a key component of the 1965 Civil Rights Act is unconstitutional. Specifically, the court threw out a long-standing formula for determining which states and local governments need pre-clearance before making changes to their voting procedures. A panel of experts discusses the Supreme Court decision on the Voting Rights Act and implications for U.S. election process.

Guests

  • Stuart Taylor author and journalist.
  • Jeffrey Rosen president and CEO, The National Constitution Center; professor at George Washington University Law School; and legal affairs editor of The New Republic, and author of "The Supreme Court: The Personalities and Rivalries that Defined America" and co-editor of "Constitution 3.0."
  • Ron Elving senior Washington editor for NPR.
  • Paul Butler professor at Georgetown Law School.

Transcript

  • 11:06:56

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. The U.S. Supreme Court this morning struck down a key provision of the Voting Rights Act. In a five to four decision, the court ruled the long-time formula Congress used for oversight of election procedures is unconstitutional.

  • 11:07:18

    MS. DIANE REHMNow it's up to Congress to come up with new procedures. Joining me in the studio to talk about the implications of the ruling is author and journalist Stuart Taylor, joining us by phone Jeffrey Rosen of the George Washington University and Paul Butler of Georgetown University.

  • 11:07:42

    MS. DIANE REHMAnd from a studio here in Washington is Ron Elving of NPR. I look forward to hearing your reactions, 800-433-8850. Send us an email to drshow@wamu.org. Follow us on Facebook or send us a tweet. Good morning to all of you.

  • 11:08:07

    MR. STUART TAYLORGood morning.

  • 11:08:07

    REHMAnd let's see. Is Jeffrey Rosen with us?

  • 11:08:11

    MR. JEFFREY ROSENYes, I am. Hi, Diane.

  • 11:08:12

    REHMHi, and Paul Butler?

  • 11:08:15

    MR. PAUL BUTLERGreat to be here, Diane.

  • 11:08:16

    REHMOkay. And we're waiting for Ron Elving. Stuart Taylor, explain the court's ruling today on the Voting Rights Act.

  • 11:08:26

    TAYLORWell, it's long, complicated and huge. This will be banner headline material. The Voting Rights Act of 1965 is the most important piece of civil rights legislation ever passed, the most effective at least.

  • 11:08:40

    TAYLOROne of its provisions, Section 5 together with Section 4 puts a special burden on the Southern states where discrimination against Blacks and voting in particular was most extreme. It requires them to go to the Justice Department before they change any of their rules about elections or voting, whether it's redistricting or moving a polling place or having a voter ID law.

  • 11:09:05

    TAYLORAnd this was a very extraordinary remedy then for an extraordinary abuse. The question the court disagreed on, 5-4, the five more conservatives over the four more liberals, is that Chief Justice Roberts' majority opinion said, you're still -- that when Congress reauthorized this law in 2006, they were acting as though it's still Selma in 1964.

  • 11:09:28

    TAYLORThey didn't take account of the radical and dramatic changes in voting. For example, originally low registration, very low among Blacks, was part of the formula they used to decide which states would be covered. Well, now it changed so much that a lot of these states -- there a higher percentage of Blacks than of Whites are registered.

  • 11:09:49

    TAYLORAnd using this and other data, the court said it violated a principle, the law now violates a principle it calls the equal sovereignty of the states, which is not a very familiar principle and not a very deeply-rooted principle. But the court hangs its hat and part from that, i.e. let's say Ohio, which is not covered by the Voting Rights Act, doesn't have to go to the Justice Department and say, mother, may I, whereas Georgia does and there's no basis in the Constitution for that distinction.

  • 11:10:14

    TAYLORThat's the heart of the majority opinion. The dissent, which is long and strong, written by Justice Ginsburg who read portions of it from the bench as she did yesterday, showing how strongly she feels about it.

  • 11:10:30

    TAYLORThe heart of the dissent is, I'll read one of her phrases. "This strikes at the heart of the nation's signal piece of civil rights legislation."

  • 11:10:38

    REHMAnd here is a tweet from Jeff Zeleny who is the ABC News senior Washington correspondent. "John Lewis, Congressman John Lewis said what the Supreme Court did was to put a dagger in the heart of the Voting Rights Act." Jeffrey Rosen, do you agree with that?

  • 11:11:06

    ROSENIt has put a dagger into the heart of the Voting Rights Act as Justice Ginsburg explains in her passionate and comprehensive dissent. Section 5 was the mechanism by which second-generation voting discrimination was avoided. It's true that people can still bring suits after the fact under Section 2, to challenge discriminatory practices but Congress compiled exhaustive findings to conclude that it was only by forcing the jurisdictions that had discriminated in the past to get federal approval that the problems could be avoided.

  • 11:11:43

    ROSENYou know, Justice Ginsburg, she's had a remarkable week by the way. Yesterday she had those three incredible dissents in the Fisher affirmative action case and in two employment discrimination cases but this is really a sustained dissent of judicial restraint and what she seems most indignant about is the idea that the framers of the 14th and 15th Amendments expected Congress, not the courts, to be the primary protector for voting rights.

  • 11:12:09

    ROSENShe quotes scholars like Michael McConnell, the distinguished conservative, former appellate judge who had exhaustive historical evidence that the framers thought that Congress should have this broad discretion and then she just describes with very specific, empirical detail all the evidence that Congress had before it to find the jurisdictions in Texas and in Alabama and elsewhere who are still discriminating on the basis of race prompting FBI sting operations and illegal activities.

  • 11:12:38

    ROSENAnd she just criticizes the majority for its abstraction in inventing almost as she puts it, this new doctrine of, you know, equal sovereignty of the states. It's much like the one that was sort of produced in Bush v. Gore to talk about the equal sovereignty of the ballots and using it to second-guess Congress' judgment so it's really a remarkable debate between the majority and the dissent.

  • 11:12:58

    REHMJeffrey Rosen, he's president and CEO of The National Constitution Center. He's joining us from Philadelphia. Paul Butler, professor at Georgetown University School of Law, what's your reaction to the decision?

  • 11:13:20

    BUTLERWell, if we think of two main issues in the case, one is how much racial progress have we made since 1965? Is the Voting Rights Act, especially its very powerful requirements of federal oversight, is that still necessary in a time when we have an African-American president? That's one issue.

  • 11:13:43

    BUTLERAnd the other issue is who gets to decide about racial progress? Is it the Supreme Court or is it the Congress? And in both those issues we have very different points of view. So Justice Roberts, the Chief, thinks that there's been major progress and he thinks that we don't need the same kinds of laws covering the same states now that we did back then.

  • 11:14:05

    BUTLERAnd he also believed that, and we heard more of this from Justice Scalia that Congress itself just isn't going to ever make that judgment. Justice Scalia had this famous line in the oral argument about racial entitlements and that about once there is a racial entitlement established by Congress they're never going to get rid of it.

  • 11:14:27

    BUTLERJustice Ginsburg in her dissent she obviously disagrees. She doesn't find all that much progress, at least not to the point where we can talk about anything like racial equality and voting.

  • 11:14:41

    BUTLERAnd as Jeff Rosen says, she provides lots of evidence that there hasn't been that kind of progress that moreover Diane, really important constitutional issue, the most important thing, the most serious thing that the Supreme Court can do is to overturn an act of Congress and that's what the court did today.

  • 11:15:00

    REHMAnd Ron Elving, you're with us now?

  • 11:15:02

    MR. RON ELVINGYes, Diane.

  • 11:15:03

    REHMTell me what you think this ruling is going to mean. How will states be affected in the short-term?

  • 11:15:15

    ELVINGWell, Texas, for example, has a voter ID law which it has recently enacted and which was blocked by the Justice Department using this Section 5 power that is imposed by the Section 4 that Chief Justice Roberts has knocked out today.

  • 11:15:36

    ELVINGSo we have an action by a state trying to change the voter ID requirements that would make it a little bit more difficult for people to vote and the Department of Justice blocked that using the authority of the 1965 Voting Rights Act that we're talking about here.

  • 11:15:56

    ELVINGAnd this is a case where the State of Texas is now going to say, well gee, we shouldn't have been included in that at all because this formula is invalid so we don't think that we need to pre-clear with the Justice Department anymore. We're just going to go ahead and enforce our voter ID law one suspects.

  • 11:16:15

    ELVINGAnd the Justice Department may very well say, well at the time you initiated this action you were still included. The Section 4 formula was still in effect so we're going to tell you, no, you can't and that would be one prospective way that this would start to bite. And it's going to bite many, many, many times because the nine states that are fully covered and the seven states that have some coverage jurisdictions have seen many, many efforts in very recent times, past months and years, to in one sense or another change their voting laws.

  • 11:16:50

    REHMStuart Taylor, what about Paul Butler's statement that here is the court overturning a law made by the Congress?

  • 11:17:03

    TAYLORWell I think that is very significant. I think he put the point very well and that is the reason, the need for deference to Congress particularly on an issue as historically-freighted as this one, racial discrimination and voting. The need for deference to Congress is at its maximum in a case like this and the court did not defer.

  • 11:17:25

    TAYLORThe court looks at a lot of evidence and says, there isn't that much discrimination anymore. It's dramatically different than it was in the past. Congress and the dissenters looked at the same evidence and they say, well there has been dramatic progress. There has been dramatic progress but not enough to stop needing this extraordinary remedy.

  • 11:17:43

    TAYLORWhat the disagreement comes down to is whether you think the residual racial discrimination which happens in states that are not covered by the Voting Rights Act provision as well as the states that are, whether the residual discrimination can be handled by old fashioned regular lawsuits under Section 2 of the Voting Rights Act. But whether you need this...

  • 11:18:01

    REHMBut it can take a lot longer to have each of those dealt with by a lawsuit?

  • 11:18:09

    TAYLORYes, it would take longer, but there are plenty of people to bring these lawsuits and courts can issue preliminary remedies so it's not as though you have to wait five years for the lawsuit to be finished before you can fix the problem, if there is a problem. But I think there is something eating at the majority here that's not been talked about and I'll talk about it if you want me to.

  • 11:18:28

    REHMAll right, and first we'll take a short break. When we come back, we'll continue our discussion of the Supreme Court's ruling today striking down a key provision of the Voting Rights Act.

  • 11:20:04

    REHMAnd just before the break, as we're talking about Supreme Court's 5-4 decision striking down a provision of the Voting Rights Act, You, Stuart Taylor, wanting to talk about the issue of racial gerrymandering.

  • 11:20:24

    TAYLORThat's right. This is the issue that I think's eating the majority as Justice Scalia's earlier argument remarks suggested, that it's not directly present in the case. So it's not a basis for striking a law down but I think it's part of why they hate it so much. And it's something that moderates and even liberals I think could understand.

  • 11:20:40

    TAYLORThe Justice Department's role has been to use the Voting Right Act as an engine of racial gerrymandering of election districts. States propose elections districts, the Justice Department says no, you have to have more black majority and Hispanic majority jurisdictions to ensure safe seats for blacks and Hispanics.

  • 11:21:01

    TAYLORNow so far that may sound good if you're in the moderate or liberal side. But the flipside of that is the surrounding districts get bleached. They tend to be white. The black districts tend to have representatives who are way to the left of center of the public. The white districts have representatives who are way to the right of the center of the public. And the combination is polarization. It's a major force of polarization.

  • 11:21:26

    REHMAll right. I want to hear Jeffrey Rosen on this.

  • 11:21:31

    ROSENI'm struck, Stuart, by just how remarkably aggressive the court has been in policing voting rights. You know that the framers of the Fourteenth Amendment didn't expect it to cover political rights at all. And just as Felix Frankfurter warned about the dangers of intruding into the political thicket by second guessing voting arrangements, now we have--and you seem to be justifying--a decade starting in 1995 of the court second guessing Congress' decision to draw voting districts for the benefits (unintelligible) which was passed in 1982.

  • 11:22:02

    ROSENAnd basically having judges acting like politicians in deciding which shape looked nice and like Goldilocks, which one didn't look nice. And you've got a series of justices who are almost ready to strike down those 82 amendments to the Voting Rights Act. And then you combine that with this remarkably aggressive decision today striking down Section 4 of the Voting Rights Act of 1964. And I find myself asking as a defender of judicial restraint, how can you justify the idea that judges are second guessing the decisions of elected politicians.

  • 11:22:34

    ROSENThese may or may not be good policy decisions. They may help or hurt Democrats or Republicans. But judges were never equipped, as Justice Frankfurter warned, and also as we saw in Bush v. Gore to be making these sort of remarkably aggressive and minute decisions. And that's why I think one of the strongest parts of Justice Ginsburg's descent is her defensive judicial restraint. And there's a slight act of -- an err of defensiveness at the end of Chief Justice Roberts' majority opinion.

  • 11:23:01

    ROSENHe said striking down an act of congress is the gravest and most delicate duty the court is called to perform, quoting Justice Holmes who he also quoted in the health care decision when he justified his decision to uphold the health care mandate. He says we don't do so lightly but here we have no choice. So I really think that the legacy of the Robert Court in this area is going to be one of extreme interventionism when it comes to political rights.

  • 11:23:24

    REHMAnd Paul Butler, I'd like to hear your comment.

  • 11:23:28

    BUTLERYou know, there's an irony, Diane, because the court in the majority opinion points to all this progress in race relations in electoral politics. And that progress has largely been accomplished by having more African Americans in elected office, including in congress. And that in turn has been accomplished by drawing voting districts in ways that don't discriminate against blacks and Latinos, and in fact, enhance their chances of getting elected.

  • 11:23:58

    BUTLERSo the court -- the Voting Rights Act has created this progress and then the court uses its own success against it. But at the end of the day that's a policy decision. And Stuart may be right that ultimately that's not in the best interest of African Americans and Latinos because it creates too much racial polarization. The Supreme Court however, is a constitutional court. It's not supposed to decide these principles of policy and what's in the best interest electorally for African Americans, or anybody else.

  • 11:24:33

    BUTLERSo if we look at the kind of claims that the conservative justices usually make about their values against judicial activism and in favor of separation of powers, we just don't see those values in the majority (unintelligible) . Again, this is right wing judicial activism. It's not respecting the separate constitutional duties of congress and the supreme court. And, you know, if this were, you know, some case about some inside baseball doctrine, it'd be one thing. But, in fact, what the court has done is taken the teeth out of the most effective civil rights law in history.

  • 11:25:15

    REHMAll right. And Ron Elving, I wonder how you see the public reacting to this?

  • 11:25:25

    ELVINGCertainly parts of the public are going to be outraged by this decision. They're going to be shocked by it. They're not going to understand why something that's been so effective in pursuing its aim since 1965 and that has been renewed a number of times by congress. And as recently as 2006 it was renewed unanimously by the Senate. And with 390 votes to just 33 no votes in the House, that's just a few years ago by a Republican majority in the House and Senate. It was renewed by that kind of overwhelming approval.

  • 11:25:57

    ELVINGAnd now we have a closely divided 5 to 4 court saying no, no, no, we had no choice but to throw out that extraordinary piece of consensus legislation that was passed just seven years ago by a majority of Republicans in the House and in the Senate. That seems rather extraordinary to a lot of people. At the same time there have always been Americans going back half a century who did not approve of the 1964 civil rights act or the 1965 Voting Rights Act and thought that they went too far and that they were unconstitutional from the beginning.

  • 11:26:29

    ELVINGAnd that point of view has been slowly gaining more acceptance in the justices who have been appointed over the ensuing decades. And they've reached now the five votes that Chief Justice Roberts didn't feel like he had last time.

  • 11:26:42

    REHMStuart Taylor.

  • 11:26:43

    TAYLORI'd like to respond to Jeff's characterization of my position, which might lead you to think that I had said previously that I applauded the court's decision and it was a correct constitutional judgment. In fact, I said the opposite. I said that the court should've deferred to congress in this case and -- which is exactly the point Jeff made -- or one of the points Jeff made. And that the decision was probably a mistake.

  • 11:27:06

    TAYLORNow the additional remarks I've made have been designed to say, you know, there are two sides to this argument. Before we all leap to the conclusion that this is the most outrageous thing any court ever did, let's hear both sides of the argument. The one side that I've been eluding to does have a large element of policy to it without as much roots in the Constitution. Guess what? A lot of Supreme Court decisions that are applauded I expect by everyone else in this conversation are in the same boat.

  • 11:27:39

    TAYLORThe abortion decisions, for example. The court, you know, often does -- legislates when I think it should defer to congress and to the state legislatures. And I think the abortion decisions were a case like that and so is this one.

  • 11:27:53

    REHMBut, Jeffrey Rosen, considering the strong majority in the congress that Ron Elving referred to, do you think this will go back to the congress for new legislation?

  • 11:28:14

    ROSENIt can go back to the congress for new legislation. Chief Justice Roberts explicitly said that Congress may draft another formula based on current conditions, such a formula is an initial prerequisite to a determination that exceptional conditions still justify this sort of race conscious action. Only Justice Clarence Thomas would have refused that option and not allowed congress to make a new determination.

  • 11:28:38

    ROSENBut the truth is, politically -- and Ron Eldridge (sic) will understand the politics far better than I -- there was a bipartisan majority to reauthorize the 1965 formulas. But I imagine that it would be a political bloodbath to try to single out which states are deserving of special preclearance today and which ones should be absolved from that responsibility. I can't imagine, in fact, that a majority of congress could converge around a handful of states that are the worst offenders, point the finger at their colleagues and say, you guys are much worse than we are, and therefore you alone need preclearance on practice.

  • 11:29:16

    ROSENThis is an example of the court abstractly saying, sure congress, if you can get your act together, you're welcome to change the formula. But in practice it won't do so. And we know that because the court, just a few years ago when it considered the Voting Right Act previously, basically issued a similar invitation to congress. It said, we have serious questions about this act but if you can change the formula than maybe it'll be in the clear. Congress did nothing in between that opinion and this one. And it's unlikely to be able to find a similar political will to act going forward.

  • 11:29:46

    REHMPaul Butler, do you believe that this action on the part of the Supreme Court is going to keep minority voters away from the polls?

  • 11:30:01

    BUTLERWell, one of the things that the majority pointed to is that there are no longer significant problems with minority turnout and minority registration. Again, that's one of the successes of the Voting Rights Act leading to the fact that in the 2012 elections there was a higher African American turnout than there was a white turnout.

  • 11:30:26

    BUTLERThe problem, Diane, isn't so much turnout now, is that states come up with -- and localities come up with various other ways to prevent African American voters from voting. So now we have these voter ID laws in places like Texas that courts have found are designed to lower minority turnout. So, you know, one of the problems with allowing individual suits is that the law and the litigators can't keep up with these thousands of jurisdictions that are responsible for designing laws.

  • 11:31:01

    BUTLERSo at the end of the day I think that this is inconsistent with the spirit of the Fifteenth Amendment which is designed to allow equal -- equality in voting. I think that African American turnout hopefully will continue to remain high. We have this unfortunate history in the United States of impediments to minority voting participation. The Voting Rights Act effectively dealt with those, and now it's been declawed.

  • 11:31:33

    REHMRon Elving, what's your thinking?

  • 11:31:36

    ELVINGI think the Chief Justice understands well that if you ask the congress to devise a new formula rather than approve an old one. It's going to be much more difficult for them to do it. So what he has chosen here is the rapier as opposed to the blunter sword. He has chosen a more skillful way of eviscerating the law by going after the part of it that he finds most defensive, which is the penalty box based on 1972 voting behavior.

  • 11:32:02

    ELVINGAnd so he has gone after that and by taking that out, he doesn't need to take out Section 5 as Justice Thomas said he would do. He doesn't need to do that because without the formula you're not going to be able to make Section 5 operative. So he knows exactly what he's doing and he know that congress back in 2006 could not have so overwhelmingly approved this bill if they had had to get down into the dirty work of deciding how the formula should be rewritten and how big the penalty box needed to be. How many states needed to be in it, how many jurisdictions outside those states needed to be in it.

  • 11:32:34

    REHMAnd you're listening to "The Diane Rehm Show." Going to open the phones now. First to Birmingham, Ala. Good morning, Antonio.

  • 11:32:50

    ANTONIOGood morning, Diane.

  • 11:32:51

    REHMHi there.

  • 11:32:51

    ANTONIOFirst time caller, long time listener.

  • 11:32:53

    REHMI'm so glad.

  • 11:32:55

    ANTONIOYes. My name is Antonio Muger (sp?) . I'm from Birmingham, Ala. And I think that they were very premature striking down the rule because of the simple fact that some might say that President Obama was elected now and that's a good reason that this can be struck down now. But if you look at where he was elected from, none of these states are included in the election for -- being the cause of electing Obama.

  • 11:33:24

    ANTONIOI think that -- take Alabama as being one of the most polarized states in the nation and probably the most polarized state in the nation where 98 percent of African Americans voted for the president. And 90 percent of everybody else voted against him. So I think that it's very premature to start down this road.

  • 11:33:46

    REHMStuart Taylor.

  • 11:33:47

    TAYLORWell, it is true that President Obama who won the election I think by -- you know, he did better than his previous nominee had done nationally and in some of the Southern states. But they're Republican states and by and large they were going to vote Republican. I think the real test of whether this is going to be as damaging, as everyone else in this conversation seems to be, is what happens in future voting changes, future voter ID laws for example?

  • 11:34:15

    TAYLORThe Texas law, which was struck down under Section 5, from what I know about it, it had some problems. There was some ugly history that suggested racial animus underlies it. The Indiana law, also a voter ID law that was upheld by the Supreme Court a few years ago in an opinion by the most liberal justice at the time, Justice Stevens, that seems pretty clean. So you find that case by case.

  • 11:34:38

    TAYLORThe question is whether those who feel aggrieved by voting changes, in the Southern states in particular, will be able to get adequate remedies through filing individual lawsuits, which is an option they've always had and they will still have.

  • 11:34:54

    REHMJeffrey Rosen, do you want to comment on that?

  • 11:34:58

    ROSENWell, only to say that Justice Ginsburg found that the covered jurisdictions under Section 5 actually had a much higher rate of success of Section 2 lawsuits than did non-covered jurisdictions. So she believed congress was correct...

  • 11:35:13

    REHMExplain.

  • 11:35:15

    ROSEN...to conclude that these individual lawsuits without preclearance would not be adequate protection.

  • 11:35:22

    REHMAnd Ron Elving, do you want to comment?

  • 11:35:25

    ELVINGIt just seems as though it is going to be a much more difficult proposition for all of the aggrieved parties down to small towns and Alabama. And sometimes it does come down to very small jurisdictions. And this case that was before the court came from Shelby County in Alabama. And it's going to be difficult for anyone who feels aggrieved in these situations to bring those suits. And it's going to take time and it's going to take money.

  • 11:35:51

    ELVINGWith the preclearance system, which granted is an extreme system, it put an enormous amount of presumption on the part of any jurisdiction that was trying to restrict or change voting laws at all, that they had to follow 1965 Voting Rights Act standards and they had to tow the line or they were going to have trouble with the federal Justice Department. This is going to be a very different system.

  • 11:36:16

    REHMAll right. To Annapolis, Md. Good morning, Nelson.

  • 11:36:22

    NELSONMy comment was already made. I was going to say in response to one of your panel that the states involved I didn't think had anything to do with the election of a black president. And someone just called and made that point, I think, pretty clearly.

  • 11:36:42

    TAYLORWell, they didn't and my point on that was that they're Republican states. And the black candidate was a Democrat. And so it's a little bit -- it might be a little hard to sort out party preference from race when you make that decision. But I think that most of the comments rest on an assumption that I question. I do think the court made a mistake by not deferring to congress.

  • 11:37:06

    TAYLORBut the assumption is that voting -- that purposeful discrimination, or at least effective discrimination against blacks is still pervasive in the Southern states. That it's going on almost everywhere all the time. And that to control it you have to have the Justice Department doing a minder role that it's never done in history to any other state except here. I question that. I think the -- there's been a whole lot of progress.

  • 11:37:32

    REHMStuart Taylor, Jeffrey Rosen, Paul Butler, Ron Elving. We'll take more calls when we come back.

  • 11:40:02

    REHMAnd we're back. Jeffrey Rosen, I want to ask you first, whether there are any Section 5 cases pending in federal court, and if so, what happens to them now?

  • 11:40:20

    ROSENThat is a very good question. It has a technical answer that I think some of my colleagues may be better equipped to answer than I, but my sense is that there certainly would be Section 5 cases pending in federal courts. And they would have to be put on hold in some sense until and unless Congress revisits the formula, because the formula can no longer be applied because it's now been struck down. But again, other people may have some better thoughts.

  • 11:40:45

    REHMDo we know that the courts decisions would be retroactive, Stuart?

  • 11:40:52

    TAYLORI think we don't know that. Now, the nature of Section 5, I think, is that there aren't many Section 5 cases that end up in federal courts. There are thousands processed by the Justice Department. And they throw out a very tiny percentage of the state changes, but they don't usually end up in court. States have the option of going to the court if they object to what the Justice Department does, but they don't do it very often.

  • 11:41:15

    REHMAnd, Paul Butler, can the Department of Justice bring a new Section 5 challenge?

  • 11:41:25

    BUTLERWell, the Court pretty much decided the case. It signaled in a 2009 case that it thought that -- then it said Section 5 was unconstitutional. It did a little kind of run around here by finding Section 4 unconstitutional, but it virtually has the same affect. So I think any constitutional challenge will be a nonstarter. You know, the Court kicks the ball to Congress, but, you know, if you think of all of the issues that Congress is facing now, immigration, the economy, homeland security, and how hard it is to get any movement on those issues, the idea that it would wait until this extraordinarily racially and politically charged area of voting rights is raised, it's just hard to imagine that's going to happen.

  • 11:42:16

    REHMOkay. And here's an email from John, who says, "The Court struck down the formula for determining which states are subject to scrutiny. Why can't the Justice Department apply this scrutiny to all states until a new formula is passed? It doesn't seem right to me that political conservatives basically get free reign to make voting rights changes in states that were not covered." Jeffrey Rosen?

  • 11:42:58

    ROSENThe basic thought from Congress was that there were certain states that really had such a history of discrimination that they needed to be treated differently than other states. And despite current evidence suggesting that there was some non-covered states that actually were worse off, Congress believed that keeping the formula in place was fair and the dissenters thought that was irrational judgment.

  • 11:43:24

    ELVINGAnd there was also a bailout provision, by which a state that could show or a jurisdiction that could show that it had a clean record, if you will, for 10 years, could bail out of coverage and get out of the Section 4 formula. And a number did. So this was a remedy that was available already under the VRA.

  • 11:43:44

    REHMAll right. Let's go to Cleveland, Ohio. Good morning, Bob.

  • 11:43:49

    BOBYeah, I'd like to talk about portioning of election districts to favor, you know, black candidates. I live in a district now -- I used to be represented by Dennis Kucinich. Now, I'm represented by Marcy Kaptur. And it's very disturbing to me, not because she's black, but because she has the Congressional Black Caucus. And that's a para-government group that doesn't restrict white members, but bars white people from belonging to it. So I feel now that I'm being represented by a racist who has no interest in the, you know, needs and welfare of her white constituents.

  • 11:44:34

    ELVINGI don't -- can I just interrupt the caller for a moment?

  • 11:44:35

    REHMSure.

  • 11:44:36

    ELVINGI think you may be mistaken. If your representative is Marcy Kaptur, she is not an African American.

  • 11:44:42

    BOBI'm sorry, not Marcy Kaptur. Marcy Fudge. Marcy Fudge.

  • 11:44:47

    ELVINGMarcia Fudge.

  • 11:44:48

    BOBYeah, Marcy Fudge. She's the head of the Congressional Black Caucus, which bars white members of Congress from belonging. You know, this is racist stuff back to the '60s.

  • 11:44:59

    REHMAll right. Paul Butler?

  • 11:45:02

    BUTLERYou know, one of the reasons that race is a consideration sometimes when electoral districts are drawn is that there's a long history of African Americans and Latinos not being voted in unless there's a majority of people of their same race in their district. So now, in the Congress we have over 40 African American representatives and that's almost 10 percent. So that's near what the African Americans here or the population is. With Latinos it's not as good, but it's getting better, again, in large part because of the Voting Rights Act.

  • 11:45:42

    BUTLERIf we got beyond our history where whites proved that they were willing to vote for non-whites we wouldn't need the Voting Rights Act, but we're just not there yet.

  • 11:45:54

    REHMAll right. To Miami, Fla. Good morning, Lucas. Lucas, are you there?

  • 11:46:03

    LUCASYes.

  • 11:46:04

    REHMGo right ahead, sir. Lucas, go right ahead, please.

  • 11:46:10

    LUCASYes. (unintelligible). Sorry, I didn't hear you.

  • 11:46:13

    REHMI'm sorry. We're going to have to go to North Carolina and Marie. Good morning to you.

  • 11:46:19

    MARIEGood morning. Am I on the air?

  • 11:46:22

    REHMYou sure are.

  • 11:46:22

    MARIEThank you. Good morning, everybody. According to the NAACP recent report, North Carolina is one of the worst and the most recent offenders when it comes to restricting voting rights. A just-signed law there could disenfranchise nearly one-third of the registered African American voters and has already ended Sunday voting. We've haven't even had Sunday voting in Baltimore.

  • 11:46:55

    REHMRon Elving?

  • 11:46:57

    ELVINGThere are laws that are under consideration and have actually been enacted in a number of states that will change the conditions under which people vote. I don't think there's any question that North Carolina's state legislature has been one of the most assertive in this respect, but this is really throughout much of the country, between voter I.D. laws and so forth, which are applied in different ways. Not all voter I.D. laws are the same. But in many cases they do have the effect of making it somewhat more difficult for older people or for people without a driver's license for whatever reason to register to vote.

  • 11:47:33

    ELVINGWhether or not that literally disenfranchises people is another question, but it certainly does make it more difficult for them to effectuate a vote.

  • 11:47:43

    ROSENDiane, this is Jeff Rosen. Could I just jump in?

  • 11:47:44

    REHMSure.

  • 11:47:45

    ROSENIt's Jeff. If I could just jump in one point here, of course it was the effort to allow Sunday voting for military voters, but not for anyone else right before the last presidential election that led a federal appellate court to strike that down as a violation of the rights recognized in Bush v. Gore. So that reminds us that even though the voting rights act may not be vibrant, there are other doctrines that will still allow it.

  • 11:48:08

    ROSENPlease forgive me, Diane, I have to leave you right now. President Clinton is coming to the National Constitution Center to give a speech. We're very excited about it and I'm going to go greet him upstairs.

  • 11:48:19

    REHMWell, Jeffrey…

  • 11:48:20

    ROSENI'm delighted to be part of this conversation.

  • 11:48:21

    REHMThank you so much for joining us.

  • 11:48:25

    ROSENThank you so much, as well. Bye.

  • 11:48:26

    REHMAll right. And, Stuart, you wanted to add something?

  • 11:48:28

    TAYLORYeah, as to Marie's description of discrimination in North Carolina, I don't know the facts. Let's assume there's some terrible things going on in terms of discriminatory laws being passed. I'm confident that the various civil rights groups can bring lawsuits under Section 2 of the Voting Rights Act. And I would think they would get effective remedies. I just want to make the point that although I do think this decision was a mistake, it's not like it removes all protection from black and Hispanic citizens in the states that used to be covered. It gives them the same protection that you have in the other 40 states or so of the country.

  • 11:49:07

    REHMPaul Butler, would you agree with that?

  • 11:49:10

    BUTLERI wouldn't, Diane. Justice Ginsburg points out, in her dissenting opinion in this case, it's about 6,000 lawyer hours that are required to see a voting rights case through from beginning to end. I think that all of the people on this panel are very committed to fairness and voting rights. We're all lawyers, but I think if one of so many from North Carolina gives us a call and asks us to take on one of those cases, I'm going to say no. I don't have the expertise and I don't have the time. So I wish it were true that there were all these people out there willing to represent folks who feel like their voting rights are being violated, but I just don't think that's the case.

  • 11:49:53

    REHMI want to read an email for you from Mike, who says, "The Supreme Court's decision to strike down vital portions of the Voting Rights Act strikes me as the very act conservatives say they abhor, interpreting the Constitution as a living, breathing document. Assuming the section struck down on enforcement were previously appealed and found constitutional, if the five-person conservative majority on the Court has found circumstances have changed, negating the need for those provisions, they are essentially adopting the liberal theory of constitutional interpretation." Stuart?

  • 11:50:50

    TAYLORI think that's a very provocative and plausible comment. One of the reasons, frankly, kind of a real politic reason why I think it was a mistake for the Court to do this, that they should have deferred to Congress, is that Mike's opinion will be widely shared by a lot of people. Not only liberals. It will be shared by a substantial number of moderates. The conservative Justices and others have, for many decades, faulted liberals for inventing the Constitution as they go along. Liberals are now more and more turning that argument against the conservatives and a case like this, just given its appearance, whatever you think about the deep realities, is just going to increase that line of criticism.

  • 11:51:33

    REHMAll right. To Albany, Ga. Good morning, Sam.

  • 11:51:37

    SAMGood morning.

  • 11:51:40

    REHMHi, there, sir. Go right ahead, please.

  • 11:51:44

    SAMYeah, well, to striking down of this Voter (sic) Rights Act and the State of Georgia, they have redistricted to benefit the Republican party. And my question is, how is this going to affect what, you know, what happens with the voting rights and the State of Georgia, where they can, you know, change the game on their own?

  • 11:52:13

    REHMSo I gather what he's asking is about redistricting.

  • 11:52:18

    TAYLORRight. What will happen now in any voting case, redistricting or otherwise, in Georgia is exactly what happens in Ohio and about 40 other states. Section 5 is only applied to the traditionally Southern states and a few other places. And the justification for keeping it is that those places are pervasively racist in a way that the rest of the country is not. There's a lot of evidence to suggest that racism isn't quite so region specific anymore, and isn't as large a force as it used to be.

  • 11:52:49

    REHMAll right. And Paul Butler, do you want to comment?

  • 11:52:53

    BUTLERWell, you know, again, when we look at voting patterns, we still see that race is a factor, but I think your caller's right, that there are all kinds of considerations that go into the drawing of electoral districts, including preserving the incumbents and enhancing their chances of getting elected. So what the Court is implying is that all of those are still feared considerations. The only thing that's off the table now is race.

  • 11:53:22

    REHMAnd you're listening to "The Diane Rehm Show." Let's go now to Indianapolis. Good morning, Greg.

  • 11:53:32

    GREGGood morning and thank you. If they're still fighting the Civil War in these states, what makes anyone, much less the Supreme Court, gain the misapprehension that circumstances have changed sufficient to lapse the protections on these disenfranchised, historically and repeatedly disenfranchised, voters?

  • 11:54:00

    REHMRon Elving?

  • 11:54:01

    ELVINGThat is another interesting and provocative way of looking at this. We are celebrating the 150th Anniversary, if celebrating is the right word, of the Battle of Gettysburg here next week. And a lot of people have been commenting on the degree to which the Civil War and its remembrance brings back the fact that so many of the issues raised by that war or that caused that war are still with us. And this decision, insisting that somehow something has changed and that magically a very large part of life in the South, and in other parts of the country as well, as Stuart has pointed out, 50 years ago are still part of life today.

  • 11:54:41

    ELVINGAnd that's really the question that's been raised here. And this is really what the Court has ruled on. The Court has really insisted that whatever might have been justified in 1965 is not justified today, in contradiction of what Congress has repeatedly ruled or Congress has repeatedly legislated to the contrary.

  • 11:54:59

    REHMStuart?

  • 11:54:59

    TAYLORI think Greg's statement, we're still fighting the Civil War, goes to the heart of what this agreement there is between the majority and the dissent and perhaps here. I don't think we're still fighting the Civil War in any part of the country. I think we've made gigantic racial progress. And then the question is whether a Voting Rights Act that presumes were still fighting the Civil War or something in that direction, in some states, but not in others, whether that's wise. I don't think it's particularly wise, but I do think the Court should have deferred to Congress.

  • 11:55:34

    REHMPaul Butler?

  • 11:55:35

    BUTLERYou know, I think the great thing about the Supreme Court's opinion in the affirmative action case yesterday is that it avoided all of this inflammatory rhetoric about whether or not we're fighting the Civil War. And it decided the case on narrow grounds. No one would have ever thought that we can get a seven-person majority in an affirmative action case, but somehow the Court was able to do that yesterday. It brought together the liberals, the moderates and the conservatives. And the problem with the voting rights case today is, as the earlier caller said, it's judicial activism. It's not consistent with the right wing or the conservative Justices' own ideas about how they should interpret the law. So I wish that the opinion today had been more like the affirmative action opinion yesterday.

  • 11:56:26

    REHMRon Elving?

  • 11:56:27

    ELVINGThat's right. The court yesterday, did a very different thing. But the Court, I think, yesterday in deferring the affirmative action collision that's coming, was essentially choosing a different ground on which to have that battle. And that different ground is going to come next year in the very next session. They've already agreed to take a case from Michigan, the Chute versus Supporters of Affirmative Action case. And that is probably going to provide an opportunity for them to make the kind of 5 to 4 decision next year on affirmative action that they made today on voting rights.

  • 11:57:00

    REHMAll right. And that is Ron Elving of NPR, Paul Butler of Georgetown University's School of Law, Stuart Taylor author and journalist, and with us earlier, the president and CEO of the National Constitution Center, Jeffrey Rosen. Thank you all. And that's for listening. I'm Diane Rehm.

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