How crazy was the court’s Voting Rights decision?


Featuring Rachel Maddow’s “creepy” regional jones: Did the Supreme Court make a crazy decision regarding the “preclearance” portion of the Voting Rights Act?

We’d have to say, not entirely so. Here’s why we say that:

Several or all of the states released from preclearance may proceed to make it harder for people to vote. For example, several of the affected states are already proceeding towards tougher “voter ID” requirements.

We don’t favor such policies. But then, such policies are being proposed in states all over the nation, wherever Republicans are in charge. These policies aren't restricted to the former “preclearance” states.

Why should a state like Pennsylvania be able to initiate such a policy on its own, while a state like Texas is not? On Monday and Tuesday nights, Rachel Maddow provided a type of answer.

On each of those nights, Maddow discussed the type of “creepy” trick Texas is likely to pull if released from preclearance. On each night, she discussed a particular proposed election from the state's past.

On Tuesday night, the second night, her discussion started like this. To watch the whole segment, click here:
MADDOW (6/25/13): Last night on this show we highlighted one example of how the Voting Rights Act works. This is a community college district in the greater Houston area. They tried to change the way they conduct elections in this district.

They tried to cut the number of polling places in this district from 84 polling places down to 12. And the list of 12 proposed new polling places had one very notable feature. The new list made if really easy to vote if you were a white person and really hard to vote if you were not a white person.

Look, the site with the smallest proportion of minority voters, so the whitest voting site was set up to serve 6,500 voters. The most heavily minority site serves over 67,000 voters. The big new election idea in this election district in Texas was that the most heavily minority polling place should serve 10 times as many voters as the whitest polling place.

The Justice Department told that election district in Texas that they could not do that. They could not make that change. The Justice Department looked at that plan and told them to try again, to try to find a way that was more fair.

That happened because Texas officials have to get an advanced OK from the Justice Department before they change their election laws, because of Texas` history of racial discrimination in elections. Discrimination like, oh, say, making the polling places for black and brown people handle 10 times as many voters as the polling places for white people.

Because Texas has done and has kept doing stuff like that, Texas needs preclearance when they make changes. If they think they should not be on that preclearance list anymore, Texas could apply to opt out. They could try to prove that they are not trying to discriminate anymore. Texas has not been able to opt out.
We can't find tape of Monday's report at the Maddow web site.

On two straight nights, Maddow presented that proposed election to show why Texas shouldn’t be allowed to conduct its own elections absent federal approval. We think that example is remarkably silly.

Here’s why:

Each night, Maddowblog offered this link for those who wanted to know what Maddow was talking about. In fact, she was discussing a bond election proposed for May 13, 2006 by the North Harris Montgomery Community College District.

At the time, North Harris Montgomery Community College was a sprawling community college system in the Houston area. The system is now known as the Lone Star College System.

Perhaps you can already see the first part of the journalistic semi-foolishness. To show why Texas can’t have its constitutional authority restored, Maddow was citing a proposed election by a local community college system seeking a bond. By now, this outrageous proposed election is seven years old. The system also would have been electing three board members.

(For what it's worth: For its previous bond election, in 2000, the district had operated only eight polling places.)

This was a local bond election from 2006. And yet, for two straight nights, Maddow offered this “creepy” state of affairs to explain why Texas should be treated differently from the bulk of the other states concerning elections, which normally belong to the states by dint of the constitution.

This was a very minor election, proposed by a bunch of college board members. We know of no giant reason to think that they were trying to reduce minority participation. Nor do we have any great confidence that Maddow actually knew what she was talking about.

In all candor, she rarely does.

This bond election was so minor that, even with its Voting Rights component, it received little coverage in the Houston press. But please:

The fact that the twelve polling places were designed to accommodate different numbers of voters doesn’t necessarily mean that voters at the smaller location would have received better service than voters at the larger locations. The Justice Department didn’t like this proposed arrangement. But the Justice Department isn’t always right, and Maddow’s typically demonized account of this matter is in no way obvious.

As Maddow noted, the largest polling place was going to “handle ten times as many voters” as the smallest polling place. This does not necessarily mean that voters would have gotten worse service at the larger polling place. It certainly doesn’t mean that the trustees of the community college were thinking “you can’t have white people waiting in line,” as Maddow imagined on Monday night, displaying her trademark casual contempt for those people not from her region.

Suppose the larger of the two locations had twelve times as many voting machines? Truth to tell, Maddow was simply guessing about this matter. And by the way:

This was a large, sprawling district. Why would one location handle many more voters than another? We’ll take a guess: Quite probably, the smallest location covered a larger, more rural part of the district. The largest location may have covered a denser, more urbanized area.

That wouldn’t mean that the urban voters were going to get worse service, although that would of course be possible. Most likely, Maddow simply didn’t know how these polling locations would have worked doesn’t know. (She provided links to no information.) And she was discussing a very small, local proposed election that was seven years old.

Would the logistics of this election have reduced the participation of minority voters? Possibly, but it’s unlikely that a small bond election for a community college system represents the worst that Texas has to offer. For ourselves, we wouldn’t assume that this planned election represented an attempt to lower minority turn-out at all.

Maddow would very much make that assumption. Increasingly, that is the way our Brave New Liberal World plays.

Now, let’s make a comparison:

Compare that tiny local election with a genuine gong-show northern election which will take place this October—the gong-show, statewide Senate election New Jersey is going to suffer.

Plainly, that election was deliberately designed to reduce Democratic participation in the November election for governor. Almost surely, it will also lower Democratic participation in the October Senate election. And it will cost the state an unnecessary $12 million.

Democratic voters in New Jersey are often black and Hispanic. This ridiculous, gimmicked-up statewide election will muck around with minority participation much more than that tiny 2006 bond election ever would have done.

But so what? Maddow spent two nights worrying about that seven-year-old, local bond measure. Did it even cross her mind that the coming election in New Jersey is vastly worse? We’ll guess that the answer is no.

This is what it means to have a regional jones—if you will, to have a regional bias. Many, many northern liberals have a regional jones concerning the South. Their jones may make them fixate on a minor, seven-year-old bond election, even as a much larger scam is happening right under their nose.

We don’t think it was all that crazy to free Texas and those other states from the requirements of preclearance. They’re going to pursue undesirable measures—but so are many other states.

Maybe it’s time for us pseudo-liberals to stop hiding behind the skirts of the Court and do some real politics in the South! Maddow could never succeed at that task, of course, with her buckets of rube-pleasing Yankee snark.

Much more on this matter tomorrow. Why can’t it be time for one, two, many Wendy Davises? For talented, successful progressives armed with more than an air of cultural greatness and an endless supply of snark?


  1. Justice Ginsberg said "It's like closing your umbrella during a rainstorm because you're not getting wet."

    Someone else could say "It's like closing your umbrella after a rainstorm because it stopped raining" but that would mean we would have to say it's possible for discrimination to ebb, disappear, or reverse.

    Where would THAT leave those of us who love to fight discrimination to feel good about ourselves and demonstrate what good people we are, if there's no discrimination?

  2. Is it plausible that the polling places which serve non-white areas would have 10-12 more voting machines than those serving white areas? The DOJ found that it was a discriminatory situation, and it is very doubtful that they are in the habit of doing this without evidence. Bob's attack on Maddow on this matter is not really justified.

    The conservative justices had indicated before the decision that there was injustice in different rules for the southern states which have been and continue to be bad and the northern one which have only recently started doing this stuff, but that was clearly not the motivation for the decision, it was just an excuse. Roberts and Scalia have shown that they want to do away with the Voting Rights Act, not somehow make it more fair (an impossible task).

  3. The SC decision held unconstitutional a preclearance requirement based on very old practices -- some as old as 1972 or earlier. However, they left in place a "bail-in mechanism" that permits pre-clearance to be required based on current discriminatory acts.

    There is another provision of the law, potentially a back-up (Section 3), that allows the government to go to court to ask that a new state or local government be put under Section 5 because of its more recent history in dealing with minority voters. Two states have been brought under Section 5 that way--Arkansas and New Mexico--along with several county governments, including Los Angeles County in California. The Court's main opinion did not even mention Section 3, but the dissenters referred to it briefly as a "bail-in mechanism" that has worked. If a challenger now seeks to employ that provision, it presumably will have to show that bias is still a present-day problem there...

    Commonly called the bail-in mechanism or the pocket trigger, section 3 authorizes federal courts to place states and political subdivisions that have violated the Fourteenth or Fifteenth Amendments under preclearance. . . . Designed to trigger coverage in "pockets of discrimination" missed by section 5's formula [sic; the formula is actually defined in Section 4], section 3 was included in the original Voting Rights Act.

  4. The legal issue is whether the law is unconstitutional, not if it optimal policy. The 15th amendment gives congress the power to ensure voting without discrimination. Congress considered the situation and passes the law. That is enough to uphold. If you want to argue the law is insufficient, fine. But that should not have been how the case is decided.

  5. SCOTUS is just giving the NRA a second chance to step-up and have their actions match the rhetoric they're always spewing.
    Here it is NRA, start bringing those guns down to the polls to protect the voting rights of minorities.


  6. Rachel Maddow doesn't know what she's talking about, but Bob Somerby does? That's laughable. Texas already has brand-new voter laws carefully designed to discriminate against minority voters and those will be in effect for 2014. Thanks to the US Supreme Court decision to ignore the 2006 renewal of the Civil Rights Act.

    Texas has repeatedly sought to reduce access to voter registration opportunities and to polling places in minority neighborhoods. On purpose, with malice.

    Granted, the best predictor of voter suppression efforts in this era is a Republican-controlled statehouse and governorship. But that is a poor excuse for greenlighting political discriminatioin in the old Confederacy.

  7. A community college bond election is still an election for citizens interested in participating in their democracy. Perhaps they would even like to vote for the bond to prevent the college from being privatized. What good is our democracy if we truly don't care to participate?

  8. Thanks for the mention of our horrible situation in NJ.

    But hey, Bob, take your own advice: Name names!

    The coming October debacle is brought to the Garden State courtesy of our awful, repellent Governor, Chris Christie.

    Chris Christie has opted to use his power to unfairly hinder the opposition party. That it is also an egregious waste of our tax dollars matters not all to this hypocritical loathsome tick.

  9. I don't agree on the policy implications of the VRA case; the fact that the preclearance requirements weren't national isn't a good reason to strike them down (and, in addition, it's pretty clear that a national preclearance requirement would not be upheld by the Court.)

    But, at any rate, let's say for the sake of argument that the policy established by the VRA decision is sensible. Does that make the decision non-crazy? Well, no, because whether you agree with it or not, the law is constitutional, and Roberts's majority opinion was unable to identify any constitutional provision that that the law violates. If striking down a major civil rights provision without remotely adequate justification isn't worthy of criticism, I don't know what is.