Your Rights, If You Can Keep Them

by Michael Liss

Let’s talk about bullets and ballots.   

First, a thought experiment. Your son is about to become a father for the first time, and you want to get him something special.  You have great memories of taking him hunting when he was a boy. So you go to a local gun show, and, at a booth manned by an old friend, you see a real beauty. He’s about to ring you up when something flashes on his screen.

“I can’t sell this to you…it looks like you haven’t bought a gun in at least six years.” He calls over someone official-looking; a long discussion ensues, including a certain amount of hand-waving, but the result is the same. No sale. Several years ago, your State Legislature, concerned about people getting their permits in-state and then moving elsewhere, had sent out postcards to those permit-holders who hadn’t bought a gun in the previous two years to make sure they still resided in the state. You could have responded to the instructions on the postcard, or simply bought a new gun from a licensed dealer in the four years that followed. But you didn’t—in fact, you don’t even remember getting the postcard, much less hearing that not returning it could be a problem.

Tough luck, especially when Democrats took back both the State House and control of the State Legislature. The dealer explained to you that you hadn’t lost your Second Amendment rights—no one was going to touch the guns you already owned or stop you from carrying or hunting—but until you updated your paperwork, the State assumed you had moved and the dealer was prohibited from selling something new to you. He was incredibly apologetic; your boys had played Little League baseball together; he’d even worked for your Dad when he was in high school; so there was absolutely no doubt in his mind that you were who you said you were, and lived where you said you lived, but the law was the law.  On this one day, not forever, but this day, you couldn’t purchase that particular gun. He’d put it aside for you, and, as soon as you got off the “No Buy” list, you could have it.

Outraged, you went home and tried to figure out a way to expedite things. Turns out that the Governor had sharply reduced the number of places you could file your documentation (he called it “reforming government”), and you lived over 50 miles away from the nearest one.  Also, they cut back the hours at those offices and made them weekdays only, which meant taking a day off from work. And the proof they required was a bear. Birth certificates and Social Security cards might not be enough. Even voting in the same polling place, which you had faithfully done for 30 years, didn’t work. Taking heed of Republican complaints of widespread voter fraud, the policy was to exclude voting records as evidence of residence.

By now, you are fuming.  You call your local state legislator, and a sympathetic aide tells you that, unfortunately, those are the new rules.  And likely those rules aren’t going to be changing soon, because, while the State was Purple-ish, after the Democrats rammed through a redistricting, the GOP would be lucky if they could hold on to even 40% of the seats. The Assemblyman wouldn’t be running for re-election, since he had been gerrymandered into a new district.  

Sounds absurd?  It is absurd–no chance they would treat the Second Amendment that way.  But when you substitute voting for gun-buying, suddenly every single one of those fictional hurdles I made you go over has been used, successfully, to restrict the exercise of the Fifteenth, Nineteenth, Twenty-Third, Twenty-Fourth and Twenty-Sixth Amendments.  

How can something that seems so basic to our Republic, a citizen’s right to choose his representatives, be so fragile?  We can start with the most significant Supreme Court decision affecting voting rights in decades, 2013’s Shelby County v. Holder—the Times-Square-sized neon sign blinking “Cheat Here” of modern voter suppression.

To make more sense of why Shelby has such a significant impact, we need a closer look.  Shelby was a challenge by Shelby County, Alabama, to the Voting Rights Act of 1965. The VRA was adopted as a response to unrelenting and pervasive attempts to limit minority participation at the polls. Through the interplay of three key portions of the Act, it banned discrimination on the basis of race (Section 2), set up “coverage formulas” that looked at raw vote totals and the relative success of minority candidates, identified areas as particularly prone to suppression (Section 4B), and then required those areas to get “pre-clearance” from the Justice Department to make changes to their voting procedures (Section 5).  Among those identified: eight Southern States (including Alabama), plus Alaska, assorted jurisdictions in California, Michigan and North Dakota, and five sites in New York City. Shelby County wanted out, and it had sued to get out.

Conservatives have hated the VRA from its inception. I know, to an observer of contemporary American politics, this seems almost self-evident, but that’s unfair. There is a solid intellectual argument to be made that the law (not necessarily conduct, but the law) should always be racially neutral. In practice, this can seem to be contradictory—to claim you are against discrimination, but then disavow the means to combat it when it actually occurs. That being said, you can respect the consistent application of a principle (opposing all preferences regardless of whom they benefit) when it is consistently applied. There are plenty of principled conservatives out there.

As Shelby wended its way through the lower courts, many of the VRA’s opponents, knowing that there were probably five votes for repeal, dreamed of a clean kill. But Shelby posed a particular challenge. Congress had reauthorized the VRA five times since its original enactment, the last time in 2006 by votes of 390-33 in the House, and 98-0 in the Senate. The legislative history associated with that reauthorization showed, in explicit detail, continuing and extensive discrimination. In light of that, while gutting Shelby might have been immensely satisfying, conservatives on the Court would have had to engage in an act of extraordinary Judicial Activism.  Justice Scalia essentially acknowledged this during oral argument, when, with some clearly evident picque, he opined that the only reason the VRA received such levels of Congressional support was because it “perpetuated a racial entitlement.” From Scalia’s perspective, those votes in Congress weren’t real—it was just that lawmakers were too intimidated to do what he would have done—vote against it. Think of it as his variation on the Goldwater slogan, “In your heart, you know he’s right.”  

Shelby demonstrates to me why Scalia could never have been Chief, because Scalia, for all his intellectual firepower, was a bomb-thrower. John Roberts, on the other hand, was perfect for the job. He’s every bit as smart as Scalia was, completely dedicated to the law, but also, when he needs to be, a sleek and silent assassin. It was Roberts who identified the key weakness in the government’s argument—the failure, since 1975, to update the coverage formulas.  He then stitched that together with increased levels of minority participation over the decades, and, in a superb piece of advocacy, asked one slightly misleading, but nevertheless crushing question to then-Solicitor General Verrilli, “Is it the government’s submission that the citizens in the South are more racist than citizens in the North?”

Roberts knew Verrilli couldn’t possibly say yes, and, on that key point, the case was basically over. He had the five votes, and assigned himself the Opinion, invalidating the existing coverage designations in Section 4B, and, by extension, Section 5’s “pre-clearance” mechanism. The good Republicans of Shelby County were unleashed to indulge themselves. Roberts was careful enough to point out that discrimination was still prohibited by Section 2, and he even invited Congress to revisit the coverage issue, but he must have known that they were never going to agree on a new definition.  For all intents and purposes, Shelby buried the VRA by making it an empty, toothless vessel, and it was Roberts who did the embalming.

To absolutely no one’s surprise, once Shelby opened the door, more than 20 states with single-party governments rushed in to consolidate their hold on power.  I was at a conference on Latino voting rights in New York a few months ago and had a chance to talk to one of the speakers. What he said was that Shelby had been a complete game-changer on voting rights litigation—even when discriminatory intent was obvious. Without the need for preclearance, new and potentially discriminatory policies could be instituted immediately, and only challenged after the fact. Lost also was a roadmap for what the Justice Department would likely have disapproved.  The balance of power had swung dramatically away from excluded voters. It was anything goes now.

Where does this end? We might as well acknowledge the obvious: to a very large extent, the race of voters is less important than their prior voting patterns, so true discrimination is hard to prove unless it is absolutely overt. That is why the most effective suppression techniques are largely administrative. You don’t need to send the proverbial men with guns to certain polling places. You just reduce the number of those polling places, restrict early voting, shorten poll hours, purge voter rolls, and create new voter ID requirements, all in a manner that “coincidentally” knocks out more of their voters than yours. Ohio Republicans aren’t going to lose a moment’s sleep if they trade one night-nurse in Holmes County (4-1 Trump and one of the least minority places on Earth), for five in Cleveland or Cincinnati, which were both strongly pro-HRC.

And that’s just the kind of pure, partisan politics that John Roberts would prefer not to touch, but knows is inescapable.  Such was Shelby.  Such was the just-decided Husted v. A. Philip Randolph Institute (Opinion by Justice Alito) which embraced the postcard and two-strikes- you’re-out approach of Ohio’s Secretary of State (and Karl Rove helpmate) Jon Husted.  Such are the two gerrymandering cases, Gill v. Whitford and Benisek v. Lamone, both challenges to redistricting, which were remanded to lower courts on a standing issue (a very strong hint the conservative majority on the Court might have approved them), as well as a third, Abbott v. Perez, which was undecided as of this writing.  

But Roberts might as well be wishing away the humidity in a Washington summer—it ain’t going to happen, because cheating (and that’s what this is) works. Let me tell you what will happen. Voter suppression and partisan gerrymandering will intensify at all political levels, aided by big data and ever-more sophisticated and granular targeting techniques. Both sides will end up in an arms race—you cheat, you win, you cheat some more, and each win gives you the opportunity to go bigger the next time.  The real risk, though, isn’t that Blue States will get more Blue, or Red more Red. It’s that government will no longer be reflective of the electorate’s desires, or responsive to its wishes, because more and more citizens will be effectively locked out. And they will be angry about it. Both those things, in case you hadn’t noticed, are already occurring.

There has to be a limit, right? I strongly suspect that, whatever that limit is, it is going to be determined by a deeply reluctant John Roberts. Just as in Shelby, he’s going to be one of the five in the majority, and he’s going to assign the Opinion. At stake, along with fair voting, may also be the very legitimacy of the Court, as he himself defined it. He said, in his confirmation hearing: Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules.”

I have a lot of respect for the Chief Justice. He is too conservative for my tastes, but I believe he’s a man of integrity. He’s got to realize that now is the time to stop ignoring the tricks of the trade, from sign-stealing to beanballs, to put on his black suit and mask, to get on the field, and to make sure everyone plays by the rules.

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