Holder defends voting rights

The NC voter law challenged by DoJ eviscerates early voting. 70% of black voters in 2012 cast early ballots.

The Justice Department, stripped by the Supreme Court’s Republican caucus of its legislated power to pre-clear voting changes in states with histories of racial discrimination, still has the power to challenge discriminatory laws in court. Yesterday, Eric Holder announced that DoJ is going after North Carolina’s law – transparently designed to make voting harder, rather than to reduce fraud – using the state’s own data to show the law’s racial impact. Fun fact: 70% of African-Americans who voted in NC during 2012 voted early, so the Republican legislature decided to go after early voting.

Another provision disenfranchises anyone who mistakenly comes to the wrong polling place. In the absence of pre-clearance, there would be nothing simpler than running a bunch of last-minute precinct-line or voting-location changes in minority neighborhoods.

I wonder whether it will turn out that John Roberts and his co-conspirators did the Republican Party any favor by unleashing this issue.

Footnote To foreclose what strikes me as an especially stupid line of commentary: of course the Republicans don’t want blacks to vote primarly because blacks tend to vote Democratic. (They also want to keep college students, of any race, from voting.) And no, that doesn’t make a plan to disenfranchise blacks any less racist.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

26 thoughts on “Holder defends voting rights”

  1. To foreclose what strikes me as an especially stupid line of commentary: of course the Republicans don’t want blacks to vote primarly because blacks tend to vote Democratic … And no, that doesn’t make a plan to disenfranchise blacks any less racist.

    Absolutely true. Unfortunately, as a legal matter, that seems to be a critical distinction.

    1. I am not up on the law on this matter, but it would be incredible (which is not to say that I don’t believe it) if the law allowed discrimination on the basis of the party for whom people tend to vote. That is contrary to the purpose of having an election. Why not just ban voting for the Democrat in any election? There would be no difference in principle.

      If the law here is based on the fact that Democrats are not a suspect class, then the law is a bigger ass than Dickens (or whoever said it) imagined.

      1. It isn’t clear from his press release but it looks like Justice will be suing on the basis of those parts of the Voting Rights Act that haven’t yet been overturned. To the best of my recollection that means only attempts to burden the franchise based on race or color. That’s why, for example, Texas can defend itself in a lawsuit brought under the Voting Rights Act that it is discriminating against Democrats, liberals and others not on the basis of race but for the purpose of institutionalizing the political dominance of the Republican Party. However bad that might look, it is technically a legitimate defense under the Voting Rights Act.

        1. You’ve explained why discriminating against Democrats does not violate the Voting Rights Act, but why doesn’t it violate the Constitution? Is it because Democrats are not a suspect class and voting is not a fundamental right?

          1. I think there would be other analytical hurdles before you could even reach the question of what level of scrutiny would be applicable. As I read the press release, the government doesn’t seem to be making an constitutional claims but is instead going to sue under the Voting Rights Act and try to prove racial animus which for purposes of the act would mean (I think) simply an effort to burden the franchise of black people and not proof that the GOP hates them.

  2. I should say that’s more like “entirely”, (But omitting an accusation of racism would be a violation of the Democratic style book, I gather.) but it doesn’t change the fact that a lot of the changes you’re attacking as racist are already established as perfectly constitutional in uncovered jurisdictions. North Carolina is viciously, racistly, reducing early voting to more than many other states have. Seriously, how can it be a racist plot, and unconstitutional, to reduce a convenience many states don’t have at all, and which was practically unheard of a few decades ago?

    The Voting Rights Act was supposed to stop abuses, not force perfection.

    1. It’s a racist plot because it’s designed to have a disparate impact on one race. What other states do or do not do is irrelevant.

      1. It’s a partisan plot, because it’s designed to have a disparate impact on one party. And what other states do or do not do is quite relevant, when you’re discussing portions of the Voting Rights Act which apply to all states.

        Essentially the Justice department is trying to recreate preclearance by selective prosecution directed against only the formerly subject to preclearance states.

        1. Brett, do you realize the absurdity of saying the DOJ is trying to recreate preclearance when it is suing to challenge a law that has been enacted? That is the opposite of preclearance.

          Yes: the DOJ is suing to challenge a law that before the Supremes weighed in they would have refused to preclear. This is because that law is discriminatory in intent and in effect; such is the whole basis of their challenge. Having lost preclearance power, they’re acting after the law is enacted. Assuming for the briefest of shining moments that you were capable of respecting the idea that voting law should be discriminatory in neither intent nor effect, what would you recommend the DOJ office charged with addressing such matters should do when convinced they face such a voting law?

          And, no, this isn’t only an issue for states formerly covered by preclearance. But it’s not a mystery why they were formerly covered by preclearance! They had a long track record of imposing discriminatory voting restrictions, a record that they repeatedly attempted to continue under preclearance. Of course laws they feel newly empowered to enact will be the top of the DOJ’s priority list!

        2. The Grandfather Clause is not meant to prevent Negros from voting, it’s meant to keep Republicans from voting. There is no cause to strike it down.

      2. No less than today, pre-1965 Southern white supremacists labored to prevent black people from voting largely because of the way they expected them to vote if given the chance. If they’d expected enfranchised blacks reliably to vote to uphold the old political-racial order, white supremacists would’ve been more likely to require black people to vote than to keep them from it. It shouldn’t need saying that this doesn’t mean that the pre-1965 enemies of voting rights weren’t really racists. Likewise with their contemporary Republican descendants.

    2. To foreclose what strikes me as an especially stupid line of commentary: of course the Republicans don’t want blacks to vote primarly because blacks tend to vote Democratic … And no, that doesn’t make a plan to disenfranchise blacks any less racist.

      We members of the Hebrew Race tend to vote Democratic, though perhaps less than in earlier years; would it be constitutional if election day were changed to a Saturday, with polls between (say) 6AM and sunset?

      1. Well I don’t know about how the constitution would go, but it seems it wouldn’t be anti-semitic, according to Brett, because doing something that specifically singles out and targets Jews isn’t anti-Semitic so long as in your heart you only care about how they vote…

      2. Yep, in Conservaworld, racism is only about how one feels in one’s heart, with one exception. And the only evidence of this is what the person says about their own heart. And here’s the exception: anybody who questions this is themselves a racist.

    3. If the R party wanted to disabuse the notion that they don’t want African Americans to vote, they could stop doing this sort of thing.

      I can’t say what is in their hearts (racism or whatever), but their actions don’t help their optics.

    4. Seriously, how can it be a racist plot, and unconstitutional, to reduce a convenience many states don’t have at all, and which was practically unheard of a few decades ago?

      Because they instituted it, saw who used it, and then decided to remove it. That extra information created their motives. Do you think that, if they had instituted early voting and found that white, Republican voters had predominantly used it, they would have repealed it? Or do you think that someone’s motives play no role in assessing their actions?

    1. How about we start enforcing the 3/5ths clause, and reduce the representation of states based on their prison populations? Now, THERE is a clause that’s actually going unenforced!

      Go right ahead, you will find it tough sledding to persuade the Supreme court that reducing the number of early voting days, or requiring people to vote in their own precincts, or to properly identify themselves, is “denying the right to vote”.

      1. Surely you can’t be unaware that the three-fifths clause was superseded by section 2 of the Fourteenth Amendment? Surely? You’re not arguing, surely, that bits of the Constitution that have been nullified by amendment should nonetheless remain in force? I mean, do we still have Prohibition in your world?

        1. I am completely unaware of that. In fact, I don’t see how it’s superceded; The 3/5ths clause diminishes the representation of states according to how many people in them are unfree. The 14th according to how many males over 21 aren’t allowed to vote for federal office except for reason of having committed a crime.

          The class of those unfree who are permitted by the 14th amendment to be disenfranchised is scarcely null. It includes everyone disenfranchised by reason of criminal conviction, and still in prison.

          1. Your understanding of the 14th Amendment is bizarre, and I wonder how many mooncalves and simpletons you can find who share it.

            Article I section 2 says in part: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” That is to say, representation in the House is based on an apportionment that takes into account all the “free” persons, all the indentured persons, none of the Indians not taxed, and three-fifths of all other persons, i.e., slaves.

            Article of Amendment XIV says in part: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”

            That is to say, the formula is changed from free persons plus indentured persons plus 3/5ths of slaves but excluding Indians not taxed in the original Article I section 2, to all persons excluding Indians not taxed in the 14th Amendment. The 14th Amendment goes on to say that wherever males age 21 or over are disenfranchised other than for crimes they have committed, those disenfranchised males 21 or over do not count in the population on which representation in the House is based. Where in that newformula is there a three-fifths anything?

            So yes, the 3/5ths clause in Article I is completely superseded by the 14th Amendment, and perhaps you should make a note of how “supersede” is spelled.

          2. I must confess, you have a point. Though I was relying on the doctrine that constitutional provisions are not repealed by implication the text you cite is sufficiently to point to overcome that.

            IOW, you’re right, I’m wrong.

  3. I should add that you actually have a point, although it’s not the one you think you have. The current practice of counting prison populations as part of the basis of apportionment where the prison is located effectively shifts representation from urban areas to rural ones, which serves to exacerbate the over-representation of sparsely populated places and the under-representation of densely populated places in our national legislature.

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