When I first did a political newsletter back in the 1960s, I had an occasional feature I called "unintentional humor," where something in the news that wasn't intended to be funny by whoever said or did it, was. Or at least is struck me funny.Well, I find it hard to be quite so lighthearted these days, so that has evolved into quoting Pierre de Beaumarchais: "I hasten to laugh at everything for fear of being obliged to weep."
Okay. The first thing to realize here is that when the Supreme Court cut the heart out of the Voting Rights Act, it didn't completely disembowel it. Two important provisions remain: Section 2 allows the federal government to require changes in state and local voting laws that have the effect of disenfranchising groups of voters, while Section 3 empowers courts to require preclearance of changes in election laws in the face of evidence that the jurisdiction in question has recently intended to discriminate.
The power of Section 3 is that is can prevent discriminatory changes from going into effect; the weakness is that it requires a showing of intent, which is obviously difficult. The power of Section 2 is that is only requires a showing of effect; the weakness is that is can only be employed after the fact, that is, after the discriminatory law has been put into practice so that the discriminatory effect can be shown.
Okay. After SCOTUS gutted the Act, several states, including as I mentioned last week North Carolina, and for another one, Texas, went to warp speed in working to pass new restrictions on voting.
Texas leaped at the chance to re-institute the redistricting plan the courts had already ruled unconstitutional and to push a new voter suppression bill.
The Department of Justice has sued, seeking to place Texas back under preclearance for 10 years under Section 3, citing its recent history, including that redistricting plan.
Now Texas is presenting its defense. And oh, Texas.
First, says Texas Attorney General Greg Abbott, the redistricting is not about race. Oh no. It's about keeping Democrats from holding elective office. Even white Democrats.
Quoting the brief:
In 2011, both houses of the Texas Legislature were controlled by large Republican majorities, and their redistricting decisions were designed to increase the Republican Party’s electoral prospects at the expense of the Democrats.The intent was partisan, not racial, y'see, and if the effect is to dilute and undermine the votes of black and brown people and all of the poor, well, that's just a happy coincidence and you can prove otherwise so can't touch me nyah nyah.
The state's argument, in other words, is that there is no discrimination against minorities or the poor and if there is it's only because they are so stupid and dependent and lazy that they vote for Democrats instead of their true masters.
If that wasn't hilarious enough, the state's other argument is that even if there is discrimination which of course there isn't but even if there is, it's not as bad as “the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that originally justified preclearance in 1965.” It's not as bad as it was then, so what's your gripe, huh?
Now, I'm old enough to remember some of this, I expect some of you are, too, so let me say that I don't recall back in 1965 that Texas was going on about "the pervasive, flagrant, widespread, rampant discrimination" it was practicing; in fact, if anything state officials were vociferously denying, then just as now, that any such discrimination existed.
Remember, you have to keep laughing.
Fortunately, various voting law experts doubt this will work. One said:
The mere desire to achieve partisan advantage does not give Texas a free hand to engage in racial discrimination. If the only way you can protect white incumbents is by diluting the voting strength of Hispanic citizens, you are engaging in intentional racial discrimination.In fact, there was a 2004 case in Massachusetts filed under Section 2 where the "defending incumbents" argument failed.
There is an unhappy footnote to this as the case could get appealed all the way to the Supreme Court: In 1981, a lawyer in President Ronald Reagan’s Justice Department wrote a memo to his boss, Attorney General William French Smith.
In that memo, the lawyer flatly opposed a proposed amendment to the reauthorization of the Voting Rights Act then being considered by Congress which would make it clear that Section 2 covered actions with clear discriminatory results, even if an intent to discriminate wasn't shown. Congress adopted the amendment, but what's important here is that the author of that memo was John Roberts. Yes, that John Roberts.
The storm clouds over our right to vote continue to gather and to darken.
Sources:
http://whoviating.blogspot.com/2013/06/left-side-of-aisle-114-part-3.html
https://www.aclu.org/voting-rights/voting-rights-act-0
http://whoviating.blogspot.com/2013/08/1216-update-voter-suppression-comes-to.html
http://tv.msnbc.com/2013/06/25/that-was-quick-texas-moves-ahead-with-discriminatory-voting-laws/
http://tv.msnbc.com/2013/07/25/feds-to-sue-to-force-texas-to-keep-pre-clearing-voting-changes/
http://www.dailykos.com/story/2013/08/13/1230932/-Texas-Defends-Voting-Laws-We-Don-t-Want-Democrats-To-Vote?detail=email
http://tv.msnbc.com/2013/08/10/texas-on-voting-rights-its-not-about-race-just-politics/
http://tv.msnbc.com/2013/07/08/sec-3-the-secret-weapon-for-protecting-minority-voters/
http://tv.msnbc.com/2013/07/19/conservatives-prepare-to-finish-off-the-voting-rights-act/
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