June 25, 2013, was a great day to be white in the United States. In one day, the Supreme Court pulled the teeth of two laws with an excellent track record of providing remedies for racial discrimination, the Voting Rights Act and the Indian Child Welfare Act.
In the VRA case, the SCOTUS instructed us that equal protection of the law applies as among the states by tradition, and proceeded to side with the states, mostly in the Old Confederacy, that had been subject to “preclearance” of changes in their election laws by the Department of Justice.
The timing of this case is amazing, given the multitude of voter suppression laws aimed at minority turnout in the 2012 elections.
Yes, “voter suppression” and not “voter fraud.” You don’t need the unfortunate slips of the tongue by some legislators to understand that. I’m from Texas and so I have been educated about voter fraud up close and personal.
No election has ever been stolen in the US by retail voter fraud. There have been cases here and there, mostly honest mistakes, like the Raza Unida Party voters who got caught voting in both their own primary and the Democratic primary. People on probation for felonies who thought the probation protected their voting rights. Even if you attribute bad motives to such people, elections are never stolen on the retail level. I did not say “seldom.” I said “never,” and my only fear of contradiction would be some small town where a dozen votes is a big deal.
Voter fraud swings elections when it is wholesale, such as the dead people in Duval County who turned an election for the young Lyndon Johnson or the ward bosses in big cities who have engineered massive one-sided turnouts by bribery, intimidation, or just cooking the numbers. Wholesale voter fraud always requires insider participation, and requiring voters to have identification they never had to have before to vote cannot touch it.
Wholesale voter fraud is also untouched by allocating fewer voting machines to minority precincts, by shrinking the number of early voting days or the number of hours the polls are open, or by doing away with same day registration. Some states made voter registration so hard as to shut down schoolteachers from registering their high school classes and the League of Women Voters from their traditional registration drives.
While the evidence has been clear in every attack on these laws under the VRA that there is more impact on minority voters than on white voters, I personally worried about two classes of people who historically have trouble getting modern IDs: American Indians born on the reservation and the elderly. These are the people least likely to have proof of their existence in state bureaus of vital statistics.
Most of the horror stories from the voter suppression laws have in fact involved the elderly, who vote Republican as a group and were, as we say in the trade, collateral damage. Indians were the targets in some states, as were African-Americans and Hispanics.
Did Indians need the VRA? I don’t live in a border town, but I know the history. The origins of the Indian Citizenship Act in 1924 involved the fact that Indians were conscripted to fight in WWI yet denied the right to elect the politicians who sent them to war. Even after that, the North Carolina Cherokees, for example, had their voting rights suppressed the same way black voting was suppressed because, in those days of Dixiecrat control, Cherokees tended to bloc vote Republican.
The Navajo code talkers returned to their reservation after WWII unable to vote in Arizona or New Mexico elections, discrimination not remedied in state law until 1948.
So Indians share a history with African-Americans of having their voting rights suppressed.
The Voting Rights Act, signed into law in 1965 by Lyndon Johnson, invoked the express power in the Fifteenth Amendment to protect voters from racial discrimination. In a just world, the VRA would have been named in honor of Andrew Goodman, James Chaney, and Michael Schwerner, three young men who went to Mississippi for Freedom Summer to register black voters in that state where blacks were over 50% of the population but held no significant public offices.
Goodman, Chaney, and Schwerner died at the hands of KKK members who were also law enforcement officials.
Chief Justice John Roberts would nod solemnly at this recitation of sad history, and remind me that it’s “only” history. He admits the sordid history, but claims “…things have changed dramatically.”
The original coverage area for the preclearance requirement was wherever less that 50% of the eligible voters were registered. Roberts cites figures showing, for example, that the registration gap between white and black voters in Mississippi was 63.2% when the VRA passed in 1965. In 2004, it was 3.8% in the other direction, with more blacks registered than whites. Virginia went from a 22.8% gap in 1965 to a 10.8% gap in 2004.
He also points out that black turnout exceeded white turnout in five of the six states originally covered by the preclearance requirement, although he admits “…no doubt that these improvements are in large part because of the Voting Rights Act.” This is why Justice Ruth Bader Ginsburg, in dissent, likened the Court’s action to “throwing away your umbrella in a rainstorm because you are not getting wet.”
Let us be clear that the SCOTUS has not struck down the VRA—just neutered it. Roberts invites Congress to reexamine which jurisdictions are subject to preclearance in light of the most recent data. To the argument that such exactitude is not normally required, he chides the dissent for treating the VRA “as if it were just like any other piece of legislation.”
Roberts means that it puts a heavy and uneven burden on the states.
Another difference seems to have escaped his notice: voter suppression laws that cannot be challenged in a timely and effective manner change the outcome of elections. How would you like it if a border town in a state covered by the VRA moved all polling places far from reservation borders and had less voting machines per voter than the white precincts?
In less than 30 days since the Roberts opinion struck down preclearance, voter suppression laws have gone into effect in several covered states, and more are coming. According to the Brennan Center for Justice, this year alone has seen the following bills introduced suppress voting:
*Photo ID laws in 22 states. Indians born and living on the reservation have problems meeting these requirements unless the tribe has had active vital statistics agreements with the state for a long time.
*Proof of citizenship laws in 8 states. It is worth mentioning that the SCOTUS struck down one version this year in Arizona v. Inter Tribal Council of Arizona, Inc. Indians are fighting back.
*More difficult voter registration in 7 states
*Reduced early voting in 7 states
*Making it harder for students to vote in 2 states
The same political party pushing voter suppression laws controls the House of Representatives, half of the Congress that must act if the Voting Rights Act is to be rescued. That same party has brought the Senate to a standstill by filibustering virtually everything, which has the effect of requiring 60 votes to pass a body with 100 members.
Nationwide, failure to fix the VRA handicaps an election by approximately 6 million votes. That handicap is not the primary harm.
Where the loss of VRA protection will most often be felt will be in local elections, as election by districts is replaced by at large representation to submerge minority votes, precinct lines are redrawn, and differential access to polling places resurrect white power at the ballot box.
Chief Justice Roberts has declined to take notice as a judge of what he must certainly know as a man, that he has rescued white voting power from a rising brown majority with the stroke of a pen.
On the same day the SCOTUS neutered the Voting Rights Act, it also radically altered the operation of the Indian Child Welfare Act. The Court damaged Indian interests for reasons it claimed would help Indians. This is a movie Indian activists have seen before, but I will still review it in my next column.
Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.