Last week, before they convened again at oral argument to mark the start of another term, the justices of the United States Supreme Court selected for review a case that will help further define the murky relationship between state judges and those who seek to shape justice before them. In Williams-Yulee v. The Florida Bar, the Court will decide whether a state judicial canon that requires judicial candidates to seek campaign contributions through a committee, rather than directly from donors, violates that candidate’s first amendment free-speech rights. The case is interesting in its own right. The electioneering judgment employed by this particular judicial candidate was so disconcerting it’s probably a good thing for the law (not to mention the litigants of Florida) that ultimately she lost the election for which she was campaigning. But the timing of the case is interesting, too. It comes to the Court in a season of unprecedented spending on (mid-term) judicial campaigns all across the country—money unleashed upon campaigns, including judicial elections, because of the Court’s Citizens United and McCutcheon decisions.
Editorials: The Debate Over Voting Rights Is Shifting Dramatically. Just Ask Rand Paul. | Ari Berman/The Nation
Last August, after the Supreme Court struck down a key provision of the Voting Rights Act, Rand Paul argued: “I don’t think there is objective evidence that we’re precluding African-Americans from voting any longer.” (For a comprehensive rebuttal, read Andrew Cohen’s “Here Where Rand Paul Can Find ‘Objective Evidence’ of Voter Suppression.”) Nine months later, Paul is saying of voter ID laws: “it’s wrong for Republicans to go too crazy on this issue because it’s offending people.” He’s conceded that Republicans have “over-emphasized” the prevalence of voter fraud and has called cutting early voting hours “a mistake.” He’s working with Eric Holder and lobbying in his home state of Kentucky to restore voting rights to non-violent ex-felons. This from a guy who ran for office as a darling of the Tea Party and suggested that the Civil Rights Act of 1964 was unconstitutional. Paul’s new religion on voting rights is evidence of a broader shift on the issue. In recent weeks, courts in Wisconsin and Arkansas have struck down voter ID laws and Pennsylvania Governor Tom Corbett decided not to appeal a Commonwealth Court decision in January overturning his state’s voter ID law
Editorials: A Federal Judge Searches for Voter Fraud in Wisconsin and Finds None | Andrew Cohen/The Atlantic
A long and bitter Wisconsin trial ended Tuesday afternoon with a sweeping defeat for supporters of a voter-ID law designed to make it more difficult for citizens to cast ballots. U.S. District Judge Lynn Adelman declared in a 90-page order that the state’s new voting restrictions violate both the equal-protection clause of the Constitution and Section 2 of the Voting Rights Act. The law unduly burdens minority voters, he ruled, without sufficient justification for doing so. Adelman’s ruling will be appealed by the Republican officials who enacted it in 2011. It is far from certain that the ruling will withstand review by the very conservative 7th U.S. Circuit Court of Appeals or the even more conservative Supreme Court, which in 2008’s Crawford v. Marion County declared that state voter-ID laws could be constitutional. In the meantime, the law—which required all voters to present photo identification to vote—is enjoined from enforcement.
It’s way too early to forecast the fate of the Voting Rights Amendment Act of 2014, the federal legislation introduced Thursday in response to the United States Supreme Court’s decision last June in Shelby County v. Holder which struck down the heart of the Voting Rights Act. This sensible new measure has bipartisan support. But already there are grumblings on the right that the bill either isn’t necessary or that it too boldly protects the rights of minority citizens to be free from what we used to call discriminatory voting practices (but which the Supreme Court wants us now to call “the exercise of state sovereignty”). But it’s not too early to know that state voter identification laws will have an exalted place of protection in the Congressional response to Shelby County no matter what the final legislation looks like. In an effort to garner bipartisan support, that is to say in an effort to appease Republican lawmakers, the bill’s sponsors specifically exempted state voter ID laws from the litany of discriminatory voting policies and practices that would count under the new “coverage formula” contemplated by Section 4 of the proposed law. It’s like proposing a law to ban football and then exempting the Super Bowl.
Editorials: ‘If I Need ID to Buy Cough Syrup, Why Shouldn’t I Need ID to Vote?’ | Andrew Cohen/The Atlantic
I spent hundreds of hours talking about the law on the radio this year but one question, one exchange, especially sticks out. It was this summer, a few weeks after the five conservative justices of the United States Supreme Courtextinguished the heart of the Voting Rights Act in Shelby County v. Holder. The station’s host had with him a local lawmaker who supported voter identification efforts underway in her state. “If I need to show identification at a pharmacy to get cold medicine” she asked me on the air, “why shouldn’t I have to show identification to vote?” It’s a question loaded with import as we begin what promises to be yet another year of voter suppression in America. For it’s a question that Republican officials and other supporters of voting restrictions have been asking all over the country over the past few years, in countless iterations, as they relentlessly push ahead with measures that purport to ensure “fairness” and “accuracy” in voting but that are designed instead to disenfranchise the poor and the elderly, the ill and the young, and, most of all, people of color. They ask that question in Florida and in Texas and in North Carolina and in Virginia, in virtually every state that was, until last June, encumbered by Section 4 of the Voting Rights Act. And they ask that question in Pennsylvania and Wisconsin and Ohio. They ask that question wherever partisan efforts are underway to further cleave the electorate into haves and have-nots. It’s a question as simple as it is flawed, one that polls well even though it is based upon a series of self-perpetuating myths.
In early June the American Constitution Society for Law and Policy, the longtime progressive advocacy group, released the results of a landmark studyon “the effect of campaign contributions on judicial behavior.” The statistics confirmed what former Supreme Court Justice Sandra Day O’Connor and countless other observers of our legal systems have long contended: Judicial elections impair the fair administration of justice by fostering impermissible appearances of impartiality by judicial candidates and judges. In seeking votes, in acting like politicians, judges invariably lose what they ought to prize most: their perceived credibility as neutral arbiters of cases and controversies. When I read the study, the first person I thought of was Texas Supreme Court Justice Don Willett, a popular and successfully reelected jurist whose campaign-style website I wrote about last year for The Atlantic. Justice Willett, it seems to me, is the poster-child for the results of the ACS study. Indeed, he should have been on its cover. So I reached out to him, asked him to read the ACS study, and to then answer for me a few questions about his perceptions about judicial elections and the role campaign contributions play in them. About a month ago, he graciously complied in a way that was both candid and frightening.
The golden anniversary of the March on Washington and Martin Luther King Jr.’s “I Have a Dream” speech have appropriately fostered among a great many people unalloyed feelings of pride and nostalgia. Here was a moment of peaceful assembly, a mass redress of elemental grievances of the people, by the people, and for the people, that was capped off by one of the most memorable speeches in American history — one that has eerie relevance 50 years later. That day the meek raised their voices, sounding in the name of justice, and the rest of the nation listened. Soon there was a Civil Rights Act and, a year later, the Voting Rights Act. But as we look back closely on the events of late August 1963, we are reminded, too, of how those events were (or were not) covered by the journalists of that day. It’s easy to look back and glorify the events of August 28, 1963 — to see in speaker John Lewis, for example, a portrait of the hero he would become, 559 days later, on the Edmund Pettus Bridge. But that’s not necessarily how the March and the Speech were covered in real time. There was in 1963 a level of “false equivalence” in reporting on civil rights that, in the name of “objectivity,” equated black demands for racial equality with white concerns about getting there.
Editorials: U.S. v. Texas and the Strident Language of the Voting Rights Fight | Andrew Cohen/The Atlantic
Ballot integrity measure. That’s what Republican officials in Texas call SB 14, the voter identification measure designed to make it measurably harder for people there to vote. Not all people, mind you. Just people who don’t own or drive cars, and people who can’t afford to take time off from work to travel long distances to state offices that are not open at convenient times for working people, and elderly people who are ill and young people who cannot afford to pay the cost of new IDs they have never before needed. People, everyone acknowledges, who are more likely to vote Democratic than Republican even in the still Red State of Texas. So the headline alone — United States v. Texas — tells you a great deal about what you need to know about the new civil rights lawsuit filed by the Justice Department last Thursday in federal court in Corpus Christi. It tells you that the battle over voting rights in the wake of Shelby County v. Holder, the United States Supreme Court’s ruling in late June that struck down a key provision of the Voting Rights Act, has become the latest keynote in the nasty national debate between the Obama Administration and its most ardent conservative critics. And it suggests that things are likely going to get worse before they get better.
Editorials: Here’s Where Rand Paul Can Find ‘Objective Evidence’ of Vote Suppression | Andrew Cohen/The Atlantic
Dear Senator Rand Paul:
If you want to be president of the United States one day, if you want more people to take you seriously as an independent thinker within the Republican Party, if you want to lead your party back to control of the Senate, or if more modestly you want simply to tether yourself to some form of reality, you are going to have to stop making false and insulting statements like you did Wednesday when you declared: “I don’t think there is objective evidence that we’re precluding African-Americans from voting any longer.” I guess it all depends upon your definition of “objective evidence.” On the one hand, there are the factual findings about evidence and testimony contained in numerous opinions issued recently by federal judges, both Republican and Democrat, who have identified racially discriminatory voting measures. And on the other hand, there is your statement that none of this is “objective.” It’s a heavy burden you’ve given yourself, Senator — proving that something doesn’t exist when we all can see with our own eyes that it does. Last August, for example, three federal judges struck down Texas’s photo identification law under Section 5 of the Voting Rights Act because it would have led “to a regression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” Those judges did find that some of the evidence presented to them was “invalid, irrelevant or unreliable” — but that was the evidence Texas offered in support of its discriminatory law. You should read this ruling before you talk about minorities and voting rights.
The story of voting rights in the year 2013 — how the five conservative justices of the United States Supreme Court undercut them last month and what Congress must do to restore them now — is really the story of America itself. There has been much premature self-congratulation mixed in with a great deal of denial and dissonance. There has been a widening gulf between promise and reality. Patriotic words of bipartisanship have flowed, promises of cooperation have oozed, but there are few rational reasons to believe that the nation’s representatives will quickly rally together to do what needs to be done. The premature self-congratulation came from the Court itself. Less than one year after Sections 4 and 5 of the Voting Rights Act stymied voter suppression efforts in the 2012 election in Florida, Texas and South Carolina, Chief Justice John Roberts in his opinion in Shelby County v. Holder heralded the “great strides” the nation has made in combating such suppression and the fact that “blatantly discriminatory evasions of federal decrees are rare.” Not so rare. Before the sun set that day, June 25th, officials in Texas and North Carolina had moved forward with restrictive voting measures that had been blocked by the federal law.
George W. Bush said the first decision the president of the free world makes is which carpet to get in the Oval Office. When Barack Obama moved into Bush’s vacated space, the carpet he chose had five quotes running around its border. They came from Theodore and Franklin Roosevelt, Abraham Lincoln, John F. Kennedy, and Martin Luther King Jr. The latter’s chosen phrase was: “The arc of the moral universe is long, but it bends toward justice.” Although wrongly attributed to King (the quote was actually the work of Boston preacher Theodore Parker), the message was clear. The U.S. had been through a long struggle — from Civil War to Civil Rights, through Reconstruction and Segregation — and America had ended up with an African American in the Oval Office. What is appealing about the story of the Civil Rights movement is its simplicity: its arc, while long, bends into a neat narrative. It can be plotted through major events that are etched into our consciousness: Brown v. Board, 1954; the Montgomery Bus Boycott, 1955; Little Rock, 1957; the Sit-Ins, 1960; the Freedom Rides, 1961; Birmingham and the March on Washington, 1963; the Civil Rights Act, 1964; and finally, Selma and the Voting Rights Act, 1965. Remember those events, remember those dates, and you’re sure to pass your exam. Yet if, as widely predicted (by veteran reporter Lyle Denniston and Atlantic correspondent Andrew Cohen), the present Supreme Court strikes down section 5 of the Voting Rights Act in Shelby County v. Holder, what does that mean for the civil rights narrative? Does 1965 lose its significance? Does the arc bend away from justice?
The need for the Voting Rights Act will die, and it should die, on the day when Americans can say to one another with a straight face that racial discrimination in voting no longer exists there. Sadly, that day has not come. Before the United States Supreme Court’s oral argument this week in Shelby County v. Holder,Professor Garrett Epps cut to the core of the conflict over Section 5 of the Voting Rights Act. “On the one hand,” he wrote Sunday in The Atlantic, “there is the right to vote… the cornerstone of a democratic system.” On the other hand, he added, there is the “sovereign dignity” of the states, words and a principle that “are mentioned nowhere in the Constitution.” As we begin to contemplate a world without this vital provision of this venerable law, a world in which federal officials are deprived of one of the most successful tools they have ever had to root out racial discrimination in voting practices, it is worth noting today the relative values of these conflicting interests as they impact the everyday lives of the American people. There is simply no comparison– despite the tone and tenor of some of the questions posed Wednesday by some of the justices.