Thursday, September 17, 2015

No. 116: Voting Rights—An Important New Book about the Ongoing Battle for the Franchise in the United States

Ari Berman is a political correspondent for The Nation. He is the author of an important 2015 book about the long and arduous political and legal battle for the franchise in our country. The book is entitled Give Us the Ballot: The Modern Struggle for Voting Rights in America.

Selma and the 1965 Voting Rights Act (VRA)
The book begins with "Bloody Sunday" in Selma, Alabama, and President Lyndon Johnson's introduction of a voting rights bill eight days later. Johnson already had achieved passage of the Civil Rights Act of 1964, and had defeated Barry Goldwater decisively in November 1964. When Johnson signed the Voting Rights Act (VRA) in August 1965, it became one of the crown jewels of his "Great Society," along with the Civil Rights Act and Medicare. The purpose of the VRA was to prevent racial discrimination in the voting process and thereby enforce the 14th and 15th Amendments to the U.S. Constitution.

Many were surprised by Johnson's actions because they differed so sharply from many of his previous actions in Congress. For example, Berman notes that Johnson's first vote as a freshman member of the U.S. House of Representatives in 1937 was against an anti-lynching bill.

Berman describes Johnson's famous speech—later known as the "We Shall Overcome Speech"—announcing introduction of the voting rights bill. Johnson delivered the speech to a joint session of Congress in March 1965; it was the first joint session in 19 years.

Early Efforts to Undermine the VRA
Berman describes early efforts to undermine the VRA. They were unsuccessful in part because of the U.S. Supreme Court headed by Chief Justice Earl Warren (an Eisenhower appointee). In 1966, for example, in an 8 to 1 decision, the Warren court upheld the constitutionality of the VRA in the case of South Carolina v. Katzenbach. (In 1954, in a 9 to 0 decision, the Warren Court had ordered desegregation of public schools in the landmark case of Brown v. Board of Education.)

Developments in 1968
Berman describes some major events in 1968. Among them were Johnson's decision not to seek re-election, the assassinations of Martin Luther King, Jr. and Robert Kennedy, Richard Nixon's "Southern Strategy," Nixon's election, and the appointment of Attorney General John Mitchell to head the U.S. Department of Justice, whose Civil Rights Division was charged with enforcing the VRA.

Developments in 1976
Berman describes some major events in 1976. Barbara Jordan of Texas in 1972 had become the first black woman elected to Congress from the South. In July 1976 she became the first black politician to keynote the Democratic National Convention. That event occurred 28 years before an Illinois state senator named Barack Obama keynoted the convention.

Jimmy Carter was elected in 1976, and he owed the election to black voters. Ironically, the state that put him over the top in that tight election was Mississippi, where blacks delivered a third of Carter's total and gave Carter the state by 11,537 votes. Nationally, Carter narrowly lost the white vote, but won 92 percent of about 6.6 million black votes.

Obama's Election in 2008
The election of Barack Obama in 2008 was a wake-up call for VRA opponents. Berman describes the voter identification laws and other laws enacted in various states to restrict voting rights. Also, by then the U.S. Supreme Court had moved sharply to the right with the appointments of Justice Antonin Scalia (a Reagan appointee), Justice Clarence Thomas (a George H. W. Bush appointee), Chief Justice John Roberts (a George W. Bush appointee), and Justice Samuel Alito (a George W. Bush appointee).

The Veasey Lawsuit
Berman describes a major lawsuit that grew out of the enactment of Texas Senate Bill 14 (SB 14) in 2011. It placed important restrictions on the ability of many Texans to vote, especially Hispanics, African-Americans, and the poor. In June 2013 several individuals and organizations filed a lawsuit seeking to prevent implementation of SB 14.

The lead plaintiff was Marc Veasey, then a member of the Texas House of Representatives and now a member of the U.S. House of Representatives. Among the organizations was the Civil Rights Division of the U.S. Department of Justice. The lead defendant was Rick Perry in his official capacity as Texas governor; Greg Abbott became the Texas governor in 2015 and succeeded Perry. (See Veasey v. Perry, U.S. District Court, Southern District of Texas, Case No. 2:13-cv-193.)

The case was assigned to District Judge Nelva Gonzales Ramos (an Obama appointee). She conducted a nine-day bench trial. On October 9, 2014, she issued a 147-page opinion. She entered a permanent and final injunction against enforcement of the voter identification provisions of SB 14. The seven major sections of the opinion are Texas's history with respect to racial disparity in voting rights, the status quo before SB 14 was enacted, the Texas photo identification law, the method and result of passing SB 14, challenges to photo ID laws, discussion, and the remedy. Berman referred to the Ramos opinion as "searing." Here are its three opening paragraphs:
The right to vote: It defines our nation as a democracy. It is the key to what Abraham Lincoln so famously extolled as a "government of the people, by the people, [and] for the people." The Supreme Court of the United States, placing the power of the right to vote in context, explained [in 1964]: "Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized."
In this lawsuit, the Court consolidated four actions challenging Texas Senate Bill 14 (SB 14), which was signed into law on May 27, 2011. The Plaintiffs and Intervenors (collectively "Plaintiffs") claim that SB 14, which requires voters to display one of a very limited number of qualified photo identifications (IDs) to vote, creates a substantial burden on the fundamental right to vote, has a discriminatory effect and purpose, and constitutes a poll tax. Defendants contend that SB 14 is an appropriate measure to combat voter fraud, and that it does not burden the right to vote, but rather improves public confidence in elections and, consequently, increases participation.
The case proceeded to a bench trial, which concluded on September 22, 2014. Pursuant to [Section 52(a) of the Federal Rules of Civil Procedure], after hearing and carefully considering all the evidence, the Court issues this Opinion as its findings of fact and conclusions of law. The Court holds that SB 14 creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose. The Court further holds that SB 14 constitutes an unconstitutional poll tax.
The Appeals
The defendants appealed to the Fifth Circuit to stay the injunction. On October 14, 2014, a Fifth Circuit panel granted the stay primarily because the injunction was imposed less than a month before the 2014 election. The 12-page judgment was written by Judge Edith Brown Clement (a George W. Bush appointee), and a one-page concurrence was written by Judge Gregg Costa (an Obama appointee). Judge Catharina Haynes (a George W. Bush appointee) also concurred. (See Veasey v. Perry, U.S. Court of Appeals, Fifth Circuit, No. 14-41127.)

The plaintiffs appealed to the U.S. Supreme Court to vacate the stay. On October 18, 2014, without explanation, the Supreme Court denied the appeal. Justice Ruth Bader Ginsburg (a Clinton appointee) wrote a seven-page dissent. Justice Elena Kagan (an Obama appointee) and Justice Sonia Sotomayor (an Obama appointee) concurred in the dissent. (See Veasey v. Perry, U.S. Supreme Court, No. 14A393.)

In August 2015 a partly different Fifth Circuit panel issued a 53-page judgment written by Judge Haynes of the previous panel. She vacated and remanded the plaintiffs' discriminatory purpose claim for further consideration; she affirmed the district court's finding that SB 14 has a discriminatory effect in violation of the VRA, and remanded for consideration of the proper remedy; she vacated the district court's holding that SB 14 is a poll tax; she vacated the district court's finding that SB 14 unconstitutionally burdens the right to vote; and therefore she dismissed the plaintiffs' constitutional claims. Chief Judge Carl E. Stewart (a Clinton appointee) concurred. District Judge Nannette Jolivette Brown of the Eastern District of Louisiana (an Obama appointee), sitting by designation, also concurred. (See Veasey v. Abbott, U.S. Court of Appeals, Fifth Circuit, No. 14-41127.)

General Observations
Immigrants, African-Americans, Hispanics, young people, and low-income people tend to vote Democratic, and large voter turnouts favor Democratic candidates. The objective of efforts to undermine the VRA is to shrink the size of the electorate so as to favor Republican candidates. Opponents of the VRA have not produced evidence to support any of their arguments, such as the need to protect against voter fraud. The Berman book is required reading for those interested in the subject of voting rights. The Ramos opinion is also required reading.

Available Material
I am offering a complimentary 220-page PDF consisting of the 147-page October 2014 Ramos opinion, the 13-page October 2014 Fifth Circuit ruling, the 7-page Ginsburg dissent to the October 2014 U.S. Supreme Court ruling, and the 53-page August 2015 Fifth Circuit ruling. E-mail and ask for the package relating to the Veasey case.