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50th anniversary of the Voting Rights Act

This month marks the fiftieth anniversary of the Voting Rights Act, and I was asked by the National Constitution Center to write something on that topic for them, which I was happy to do:

Let’s Keep the 1965 Voting Rights Act Focused on Actual Racial Discrimination

The 1965 Voting Rights Act was passed because of the appalling denial to African Americans of the right to vote in, especially, the Deep South.  There was and is an overwhelming national consensus that such discrimination is wrong, and this consensus was and is bipartisan.  Indeed, it’s interesting that Republicans voted in favor of the 1965 act more solidly in both houses of Congress than did the Democrats.  The act has transformed the American political landscape, and has been remarkably effective in halting racial discrimination in voting.

Some problems with the act have emerged over time, to be sure, largely as a result of bureaucratic overreaching.  Whenever efforts are made to address those excesses, the Left likes to assert that the basic principle of nondiscrimination is being challenged, but this is not true. 

Subsequent disputes over the act have involved only two things: the use of the “disparate impact” approach to its enforcement (that is, using the act to challenge racial disproportions of one kind or another even if those disproportions are not the result of actual discrimination); and whether there is any longer any justification for Section 5 of the act (involving “preclearance” of state and local voting changes by the federal government).  The Left favors the two because they provide an easy way to promote the racial gerrymandering it likes and to block the election integrity measures (like voter ID) it doesn’t.  But the race-based decision-making encouraged by “disparate impact” claims is bad for any number of reasons, and the Supreme Court was quite right to rule two years ago that, indeed, the preclearance formula of Section 5 can no longer be justified.

The racial gerrymandering and segregation fostered by the “disparate impact” approach is pernicious.  The Supreme Court has warned about the unconstitutionality of racial gerrymandering in a number of decisions; the practice encourages racial balkanization and identity politics; and, in addition, the segregated districts that gerrymandering creates have contributed to a lack of competitiveness in elections, districts that are more polarized (both racially and ideologically), the insulation of Republican candidates and incumbents from minority voters and issues of particular interest to minority communities (to the detriment of both Republicans and minorities), and, conversely, the insulation of minority candidates and incumbents from white voters (making it harder for those politicians to run for statewide or other larger-jurisdiction positions).  As Chief Justice Roberts wrote, it is, indeed, “a sordid business, this divvying us up by race.”

There are efforts in Congress now to resurrect Section 5 after the Supreme Court essentially struck it down two years ago, but such legislation in unnecessary and unwise.

The fact is that Section 5 was an extraordinary provision. It said that nine entire states and parts of seven others could not make any change — no matter how small — in any voting practice or procedure without getting advance permission from the federal government.  And it basically put the burden of proof on a state or local government to establish its innocence — not only of disparate treatment, but also of anything with a disproportionate racial impact.

Now, this was a good idea in 1965, although even Chief Justice Earl Warren twice called the provision “stringent” in upholding it. At that time, whole swaths of the country were systematically and blatantly denying people the right to vote because of race. But now there are no large sections of the country like 1965 Mississippi. I very much doubt, in fact, that there is any single state or local jurisdiction that is like 1965 Mississippi.

But what if there were? Well, then you have Section 3 of the act, which allows a judge to put a jurisdiction that denies or restricts voting rights into this kind of “preclearance” receivership. It’s been done. For other instances of racial discrimination, you have Section 2 of the act, which applies to the whole country. Remember that the only provision the Court struck down was the coverage formula for Section 5; the rest of the act is untouched.

Indeed, these other provisions are now being used, aggressively, by the Obama administration and liberal civil-rights groups, and there is no evidence that they need more weapons in their arsenals. If they can prove their cases in court, they will win — the way it works with every other civil-rights law — but with Section 5 they have gotten used to winning without having to prove anything, and that’s the only reason for the efforts to bring back Section 5.

In particular, reasonable people can differ about how to strike the balance between ensuring that eligible voters are able to vote and ensuring that ineligible voters do not.  If those efforts are motivated by race, they should be struck down — but by producing evidence of that discrimination in court, not at the whim of some bureaucrat. 

We don’t need Section 5 anymore. If it weren’t for the fact that, once upon a time, we did have states that made Section 5 necessary, and that over the years this unique provision has made life much easier for some lawyers, does anyone really believe that a provision like Section 5 would, in 2015, be drafted and given serious consideration?  Of course not.

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Two related voting-rights items.  First, here’s a long New York Times Magazine article that ran over the weekend, purporting to tell the story of “a largely Republican countermovement of ideologues and partisan operatives who, from the moment the Voting Rights Act became law, methodically set out to undercut or dismantle its most important requirements.” 

But actually, as I explained above, the most important requirement of the Voting Rights Act has always been its prohibition of denying anyone the right to vote because of race, and in recent years there has never been any significant movement — Republican or otherwise — to the contrary.
Second, because the Left continues to push bad legislation to resurrect that obsolete and pernicious part of the Voting Rights Act — and because this month marks the 50th anniversary of the Act — I can just see it coming up at the Republican presidential candidate debate on Thursday.  So, as a public service, here’s a suggested Q&A for the participants:

Q:  Do you support legislation to update the Voting Rights Act, since the Supreme Court gutted it two years ago?

A:  No, I do not.  No new legislation is needed. The Supreme Court struck down only one provision in the Voting Rights Act, and there are plenty of other voting-rights laws available to ensure that the right to vote is not violated.  Those laws require people who think there is discrimination to prove it in court before they can get relief, which is only fair and which is the way that every other civil-rights law works. 

[And if the candidate really wants to do his homework, he can add this to his response:] 

The law that was struck down really was unconstitutional, and is no longer necessary.  Liberals like it because it actually encourages race-based decisionmaking, including racial gerrymandering and segregation of voting districts, and because it makes it easier to block voter ID requirements and other ballot security measures — all at the whim of a federal bureaucrat. 

Hillary Clinton’s Voting-Rights Speech

Two observations on Hillary Clinton’s voting-rights speech last Thursday: 

First, it contained the predictable race-baiting demagogy — e.g., “what is happening is a sweeping effort to disempower and disenfranchise people of color . . .” No, what is happening is the usual effort to strike the right balance between facilitating voting by eligible voters and preventing voting by ineligible voters. If there is evidence of racial discrimination, the courts are open for business. 

Second, she showed, again predictably, her impatience with constitutional limits on federal power, in this case by endorsing federal legislation that would force states to allow felons to vote. Not only is automatic felon reenfranchisment a bad idea, but it is beyond Congress’s authority to pass such a law.

And speaking of the Constitution, she also endorsed efforts to overturn the Supreme Court’s decision two years ago in Shelby County v. Holder, which struck down as unconstitutional one section of the Voting Rights Act. But that decision was correct, and the bill that has been introduced to overturn it contains its own constitutional infirmities — in addition to being bad policy and unnecessary — as discussed here and here and here and here and here and here and here.

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There are a couple of other items on the felon-voting front, both involving proposed bills at the state level to allow felons to vote when they are still on parole or probation.
Maryland’s governor Larry Hogan vetoed a bill last month that would have reenfranchised felons on the day they walk out of prison — even if the parole/probation part of their sentences had not been served. Good for him.

As I and other conservatives had pointed out to him, such automatic reenfranchisement is “premature and unwise.”

To elaborate: If you aren’t willing to follow the law yourself, then you can’t demand a role in making the law for everyone else, which is what you do when you vote. The right to vote can be restored to felons, but it should be done carefully, on a case-by-case basis after a person has shown that he or she has really turned over a new leaf, not automatically on the day someone walks out of prison — let alone when parole/probation have not even been served. After all, the unfortunate truth is that most people who walk out of prison will be walking back in. 

The only bad news is that there may be a serious attempt to override the veto. Here’s hoping the votes are lacking in the Maryland state legislature.

And in Minnesota, the bill failed to pass the state legislature at all.  Here again, though, the struggle is not over, because the governor has asked that the bill be among those on the agenda he’s proposed for a special session of the legislature later this year.

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“The Case for Black Doctors”:  That’s the title of a recent New York Times op-ed by Dr. Damon Tweedy.  But his arguments in favor of racial preferences are unpersuasive, as discussed in my response:

Dr. Tweedy offers only two justifications for racial preferences in med school admissions: that many black patients prefer black doctors, and that African-American doctors are more likely to work in underserved areas.

Both are shaky as an empirical matter (see Sally Satel’s book PC, MD on the first, and the second was rejected by Justice Powell in his Bakke opinion), and both are shaky as a matter of policy (we wouldn’t indulge nonblack patients’ reluctance to have a black doctor, and there are more direct ways to improve service in underserved areas than the convoluted one of admitting doctors we hope might someday practice there).

But even if there is something to them, they would not justify the many costs of racial discrimination in university admissions — the unfairness, divisiveness, stigmatization, “mismatch” problem leading to lower graduation rates, and on and on. And in particular in this context, there is the cost to future patients of turning down the most qualified applicants and instead admitting less qualified individuals to become doctors. Is that ultimately a good thing for black patients? No wonder Dr. Tweedy admits finally that he is “ambivalent” about race-based affirmative action!

The Voting Rights Act Goes to the Supreme Court

The Supreme Court granted review this month in Shelby County v. Holder, a case challenging the constitutionality of Section 5 of the Voting Rights Act.  The Center for Equal Opportunity helped write and joined an amicus brief urging the Court to take the case.


That Bad Voting Bill Is Still Bad

Predictably, the Left has tried to use the Selma anniversary, along with the Oscars, to push its very bad amendments to the Voting Rights Act. Thankfully, there does not seem to be much interest, and rightly so. 

No new legislation is needed. The Supreme Court decision that the bill supposedly addresses struck down only one provision in the Voting Rights Act, because it was indeed unjustified and outdated; there are plenty of other voting-rights laws available to ensure that the right to vote is not violated. And indeed there is no shortage of lawsuits being filed. If plaintiffs can prove their case, they can and should win, but the point is that they should have to prove their case — a requirement the amendments would eliminate.

In many other important respects, too, the bill that has been drafted is bad legislation. For example, it does not protect all races equally from discrimination; it contains much that has nothing to do with the Supreme Court’s decision; and it itself violates the Constitution by using a “disparate impact” approach and prohibiting practices that are not actually racially discriminatory but only have racially disproportionate effects.

And despite the disingenuous claims of its proponents, the bill is also not really bipartisan. At Senate hearings last year, it was clear that no Republican would favor it, because it is designed to give a partisan advantage to the Left. There are still no Republican sponsors in the Senate, and only a handful of misguided Republican sponsors in the House.

Here’s a piece on this bad bill I wrote for National Review Online last year, just before those hearings; the last paragraph has links to a number of other pieces that spell out just how bad this bill is.

The Los Angeles Times published my letter making these points last week, by the way.

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The Washington Times reports that a high-school principal in Oak Park, Illinois, is stubbornly standing by his decision to hold an event for black students only, so that they could safely discuss race issues without the presence of white people. Principal Nathaniel Rouse hosted a “Black Lives Matter” event exclusively for black students last month. He says he hopes to have similar events for whites, Hispanics, and Asians, and then a school-wide event. 

So, the way to fight racism is to underscore racial differences by having segregated events premised on the inability of different racial groups to deal respectfully and honestly with each other — I get it.

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The U.S. Equal Employment Opportunity Commission has been on a well-deserved losing streak lately, and that streak continues now with a good decision by the U.S. Court of Appeals for the Fourth Circuit, discussed here. The case involves the EEOC’s disparate-impact challenge to a company’s use of criminal background checks.

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I’ve noted from time to time the misguided approach to civil-rights enforcement in school discipline by the Obama administration, namely its use of the “disparate impact” approach, equating racial disproportions to discrimination.  Recently there was an excellent article in the New York Post on the results of this nonsense — read it here

The particular agency at fault, by the way, if the Education Department’s Office for Civil Rights — which is the same agency for which the administration has requested a 31 percent budget increase!  Read all about that here

And — last point on this — even liberal Representative Joe Kennedy (D-Massachusetts) et al. were pushing for only a 5 percent increase.

Census Bureau rushes unconstitutional ballot demand

Usually my weekly emails to you are my own writing, but this week I'm going to send you an excellent column by Perry Pendley, head of the Mountain States Legal Foundation. And I think I have three good reasons for doing so. First, as I said, it's an excellent column, and it's even better because it draws on the fine work done by the Center for Equal Opportunity's chairman Linda Chavez, who has told Congress repeatedly that it should get rid of its offensive requirement that ballots be printed in foreign languages. Second, Mr. Pendley and his organization are longtime allies of the Center for Equal Opportunity, and we are delighted to be making common cause with him again on this issue. And, third, I've been on the road the last couple of weeks, speaking at several law schools and other venues, and relying of Perry here will make that week a little less hectic. Enjoy!


In mid-October, the Obama Administration, through the U.S. Census Bureau, put three states and 248 counties in 25 states on notice that the election materials they provide must be printed, not only in English, but also in 68 additional languages. The mandate is not new—its announcement is required upon completion of the decennial census; however, what is new is the speed with which it was issued after the 2010 Census. The Bush Administration published its Federal Register notice regarding the 2000 Census in 2002.

Cynics may suggest that the announcement has something to do with the 2012 elections, but the focus should be on the remarkable requirement that, in a country where English language fluency is necessary for citizenship, ballots must be in a variety of foreign languages and the insult that demand gives to the Constitution, as well as its public policy failings, including, that it: imposes a costly unfunded federal mandate in the middle of a recession; Balkanizes the body politic; and contributes to voting fraud. Little wonder that, with the Census Bureau’s announcement, many are asking, “Why are we doing this?”

In 1975, Congress amended the Voting Rights Act of 1965 to require that ballots be prepared in languages other than English in jurisdictions where more than 5 percent of the voting-age citizens are members of a particular language minority, if their illiteracy rate is higher than the national illiteracy rate. The reason: “unequal educational opportunities which language minorities have suffered at the hands of State and local officials.” Although the Congressional Record references “evidence,” it cites only statements by three Representatives who supported the amendment. Enacted as “temporary,” Section 203 was extended: in 1982 for 10 years, in 1992 for 15 years, and in 2006 for 25 years.

Even if Section 203’s “evidence” were true in 1975, which is doubtful, Congress may not interfere constitutionally with the right of State and local officials to conduct elections by imposing a prophylactic remedy—non-English ballots—unless it has evidence of discrimination and enacts a remedy that is “congruent and proportional,” in the words of the U.S. Supreme Court, to the offense. Because “disparity” does not mean “discrimination,” let alone the intentional discrimination by State and local officials that allows extra-constitutional action by Congress, Section 203 is unconstitutional, if not in 1975, then certainly in 2011, given Congress’s rote reauthorization of the provision over the decades.

Experts such as Center for Equal Opportunity Chairman Linda Chavez argue that, even in 1975, lack of English language fluency was likely not the result of discrimination but factors such as growing up in a home where English is not spoken enough. Furthermore, how likely is it that the English language deficiencies Congress “found” in 1975 exist four decades later? If not likely, why are hundreds of jurisdictions still covered? Because the Census Bureau labels those who say they speak English “Well” (as opposed to “Very Well”) with those who say “Not Well” or “Not at All” as having “Limited English Proficiency” (LEP) and covered by Section 203.

That citizens do not need non-English ballots was demonstrated by a 1986 General Accounting Office (GAO) study, which found that over half of the reporting jurisdictions said no one used the bilingual materials. In 1996, a Yuba County (California) official reported that, in 16 years, only one person requested bilingual materials, yet the county spent $30,000 a year preparing them. In May 2011, Cuyahoga County (Ohio) spent $100,000 for bilingual ballots in a “light” primary season. Bilingual ballots create another concern for election officials: their ability to prevent fraud. As Ms. Chavez puts it, the only people who need bilingual ballots are non-citizens who want to vote.

Sadly, this costly, useless federal mandate, which undermines national unity, facilitates voting fraud, and violates the Constitution, is likely with us forever. That is, unless a courageous election official asks the Supreme Court to strike it down.

A Conservative Celebration of the 1964 Civil Rights Act

It’s being widely noted that this week, on July 2, we’ll be celebrating the fiftieth anniversary of the signing of the 1964 Civil Rights Act.  Below are excerpts from my discussion, posted earlier this month on the Liberty Forum website, of why “the approach taken in the bill was a conservative one, that it ought to be updated to strengthen and clarify that essentially conservative approach, and that it is the Left that has strayed from the Act’s principles and that now wants to repudiate them.”

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The Civil Rights Act of 1964 banned much government and private-sector discrimination, mostly on the basis of race and ethnicity (“color” was specified in addition to “race,” and “national origin” was the term used instead of the now-more-common “ethnicity”), but often on the basis of religion, too, and sometimes on the basis of sex as well.

There were eleven titles in the 1964 Act. The key ones were Title II (public accommodations), IV (school desegregation), VI (federally funded programs), and VII (employment). The others were I (voting), III (public facilities), V (expanding the U.S. Commission on Civil Rights), VIII (compilation of voting data), IX (facilitating intervention by the Justice Department and federal jurisdiction in some trials), X (establishing the Community Relations Service), and XI (regarding criminal contempt).

A Restricted Measure

The 1964 Civil Rights Act was ambitious, but it was not untethered, either in the areas it covered or in the kinds of discrimination it banned. It did not, to give just one example, require wedding cakes and photographs to be made for same-sex marriages. And the relief that it made available was carefully limited, too. There was no provision for the award of comprehensive, let alone punitive, damages in the original statute, for example.

Some libertarians might still object to this bill. But no less a libertarian than Richard Epstein said that, if he had to make an up-or-down decision, he would have voted for it in 1964. The Act addressed both public and private discrimination; and, in some areas regulated by the Act (for example, public accommodations) public and private discrimination had become hopelessly intertwined.

Conservatives, of course, treasure Richard Epstein but they adore Edmund Burke, so the more salient question for them is whether Burke would have voted for the Act. I think he would have. The Act was certainly a reform, but then Burke was a reformer, and these reforms were actually in line with fundamental American precepts – with the “American creed,” as Gunnar Myrdal put it, and E pluribus unum, our original motto. The rhetoric of the Civil Rights Movement, it is often now forgotten, stressed patriotism and was unabashedly religious; it is not surprising that it is now conservatives who are most likely to quote Dr. Martin Luther King’s dream of children being judged by the content of their character rather than the color of their skin, emphasizing both the “character” part and the “color” part. This spirit is in the Act, even if some liberty is sacrificed to it.

Conservatives want society to be cohesive, and it is hard for a multiracial and multiethnic society to be cohesive if it is endorses irrational and unfair discrimination on the basis of skin color and national origin. Such a society cannot be meritocratic or honor a natural aristocracy, let alone the self-evident truth that all men are created equal.

A higher percentage of Republicans than Democrats in both houses voted for the 1964 Civil Rights Act. Yes, in some respects the Act diminished the freedom of companies, but it’s at least arguable that the Act actually made markets freer and more efficient and improved the environment for business. I’ll conclude this discussion on a point related to this, noting that when I went from being a deputy in the Justice Department’s civil rights division to being a deputy in its environment and natural resources division, I was immediately struck by how much shorter and clearer the statutes were for the former than the latter. A low bar, but still.

The Turn to Federally Sponsored Race Discrimination

It is astonishing, in light of all the Act achieved, that the federal government has at the Left’s bidding since 1964 come to endorse a great deal of racial discrimination. A 2011 report by the Congressional Research Service catalogued literally hundreds of government programs that included some form of racial discrimination.

If Congress wants to do something about it, and drastically reduce the amount of discrimination that goes on, it should look carefully at the bills that the Center for Equal Opportunity and the Heritage Foundation recently drafted. (The bills are described in detail here.)

The most straightforward way Congress could act is by banning racial preferences in all federally funded programs — public employment, education, contracting, etc. — and in federal civil-rights protections. Federal law — including the words of the 1964 Civil Rights Act that courts and bureaucrats have mangled — frequently states that the government may not discriminate based on race, but plenty of other federal statutes explicitly do so.

Likewise, the “disparate impact” approach to civil-rights enforcement results in race-based preferential treatment — often intentionally so. Eliminating such claims is therefore another way to help curb the use of racial and ethnic preferences, and our second model bill has this aim.

In brief, an action that has racially disproportionate results is considered to have an illegal disparate impact, even if the action is neutral on its face, in its intent, and in its application. This is not racial discrimination by any reasonable definition, and it forces employers, landlords, schools, and others either to discard legitimate criteria and selection procedures (for example, a physical or written test for firefighters or police officers); or to avoid racial disproportions by hiring, leasing, or disciplining (or designing tests and other selection criteria) with an eye to skin color; or both. The Obama administration loves this approach, alas.

Fortunately, most civil-rights laws – again, including the 1964 Civil Rights Act, as originally written – have no such “disparate impact” provisions; rather, they prohibit actual discrimination (“disparate treatment”). The laws were expanded, however, through agency interpretation and activist court rulings to include “disparate impact.”  Again, the Left sacrificed the Act’s guarantee of equal opportunity in order to achieve equal results instead.

Bell Curve Consequences

And finally — having addressed conservatives, libertarians, and liberals — let me also say a word to those who ask: What if it turns out that there are genetic differences in cognitive abilities among different groups?

The issue whether there are racial differences in IQ is, it seems to me, of an intricacy disproportionate to its interest, at least for those of us who think that sound law and policy require judging people as individuals, without regard to race. In short, even if such genetic differences can be proven to exist, it would not provide a convincing rationale to refrain from re-instilling the sound law and policy of requiring citizens to be judged as individuals, without regard to race. Were science to prove somehow that the average white’s IQ is 12.03 higher than the average black’s, there will still be plenty of blacks smarter than plenty of whites, and plenty of mixed blacks/whites/others.

In the civil-rights context, the science here is important only to those on the far Right who would defend racial discrimination, and — especially — those on the far Left who insist that, since culture of course also cannot be blamed for racial disparities, they must all be a result of discrimination. The quota mongers have to deny unequal distributions of talent, interests, and ability, since their whole approach hinges on an assumption that proportionate representation is what a meritocratic system, sans discrimination, would produce. It is only to people who want to make racial generalizations and to people who believe that, absent discrimination, every university and workplace would “look like America” that race and IQ is of great importance.

I, on the other hand, am happy to be agnostic: Just choose the best qualified people, and don’t worry about getting your numbers right. For us colorblind conservatives, who think people should be treated as individuals regardless of race and who don’t think that racial disparity equals racial discrimination, the connection between race and IQ doesn’t matter in this arena. The 1964 Civil Rights Act, as originally written and understood, makes sense for a multiracial and multiethnic society, whether or not there are genetic differences among different groups.


Discrimination on the basis of race and ethnicity is inconsistent with the 1964 Civil Rights Act, unconstitutional when the government imposes it, and a bad idea, yet the practice is now rife throughout federal law and government programs. Jobs should go to the most qualified individuals; contracts should be awarded to the lowest bidders who are qualified; the students who are most likely to excel academically should be admitted to taxpayer-funded universities; and all should be protected equally from discrimination.

New York Times and Hard Time

Last week the New York Times ran my response to an editorial it had written.  The editorial had condemned felon disenfranchisement in the course of praising a recent Alabama bill, and here is my response:

I have no quarrel with Alabama’s decision to define better which crimes should lead to disenfranchisement, and I agree with your editorial than some parts of its line-drawing make more sense than others, but it is wrong to say all felon disenfranchisement laws are “racist, pointless, anti-democratic shams.”

If a particular law is shown to be racist, the Supreme Court ruled long ago that it will be struck down, as your editorial acknowledges. But that evidence doesn’t exist for laws now on the books, which is why their opponents no longer bother to litigate.

Nor are the laws pointless: If you aren’t willing to follow the law yourself, then you can’t demand a role in making the law for everyone else, which is what you do when you vote.

And they aren’t anti-democratic. We don’t let everyone vote: not children, not noncitizens and not people who have committed serious crimes against their fellow citizens. Self-governance requires some level of responsibility and commitment to our laws.

The right to vote can be restored to felons, but it should be done carefully, on a case-by-case basis after a person has shown that he or she has really turned over a new leaf, not automatically on the day someone walks out of prison. After all, the unfortunate truth is that the majority of people who walk out of prison will be walking back in.

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Follow-up on Foreign-Language Ballots – I mentioned in an email last month that I participated in a Federalist Society discussion on voting issues, and pointed out in that discussion the policy and constitutional problems with Section 203 of the federal Voting Rights Act. That statute requires some jurisdictions to print ballots and offer election­-related materials in foreign languages. As a constitutional matter, I noted, this provision raises serious federalism concerns and equally serious concerns about Congress exceeding its authority to enforce the right to vote regardless of race. Its constitutionality aside, this provision is also objectionable on a variety of policy grounds.

I elaborated on all that in the email, and you can now take a look at my Federalist Society appearance on this video (I come in at the 00:57:20 mark and my participation continues until the 01:04:50 mark).

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Fruits and Nuts – So the nutty government of East Lansing, Michigan, has decreed that a farmer — who lives twenty miles away and has decided that, for religious reasons, he would rather not permit same-sex marriages to be performed on his property — will not be allowed to sell his fruit in the city’s farmers market.  The Alliance Defending Freedom has brought a federal lawsuit on the farmer’s behalf, and George Leef has all the details here.  Just imagine if the shoe were on the other foot and an unprogressive city decided to punish someone because of religiously-held progressive views.  There would be a huge demand for rotten tomatoes. 

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NHL Playoffs Vindicate Trump – Congratulations to the Pittsburgh Penguins on winning their second straight Stanley Cup last night, the only time that feat has been achieved in the salary-cap era.

The President is having his frustrations these days, so I want to point out that the NHL playoffs were kind indeed to those teams from states that went for Donald Trump last November.  Four such teams were among the 16 in the post-season:  Pittsburgh, Nashville, Columbus, and St. Louis.  None lost a series except when playing against a city from another Trump-voting state.  The team Pittsburgh defeated last night in the finals was Nashville, the playoffs’ surprise.  Chicago and Boston, on the other hand, made early exits.

And note, finally, what the four teams that Pittsburgh defeated en route to the Cup have in common:  Columbus, Washington, Ottawa, and Nashville are all capitals.  They had no chance against the Steel City outsider. 

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Short Notes on the Big Picture – Let me conclude with some recent notes I wrote quickly in preparation for a meeting among conservatives about what we should be doing on race-related issues:

Let’s ask first, where do we want to end up?  No race-based discrimination by government, for sure.  Not by private parties either, given the statutes on the books.  We want good race relations more broadly:  E pluribus unum, no identity politics.  And all this is easier if there are fewer de facto racial disparities, which are rooted in cultural differences, especially out-of-wedlock birthrates.

How do we get there?

By and large the legal tools exist to end most race-based decisionmaking (racial preferences and disparate impact), or would be if the Constitution and statutes were interpreted correctly.  Sometimes, though, incorrect interpretations necessitate corrective action by the Executive Branch or Congress. 

Preferences are most common in contracting, employment, and education, and also voting (redistricting).  Disparate impact is found in employment and voting, and also housing/credit and programs (especially school discipline, policing, environmental justice, and language) under Title VI of the 1964 Civil Rights Act, which forbids racial and ethnic discrimination in federally funded programs (there’s a disparate-impact public accommodations case pending in Ninth Circuit).  There are also other race-based provisions in random federal and state laws.

So at the federal level, in terms of law, we need to identify and bring good cases in the courts, pass good legislation, and make friends with the relevant Executive Branch officials.  Same thing really at the state level.  Here’s my dream agenda for the Supreme Court.

But there are also the culture wars.  On the one hand, you can observe the insanity at Evergreen State University (to give one example) and conclude that things have gotten completely hopeless and out of control.  On the other hand, if you ignore campuses (and Black Lives Matter) as outliers and, instead, look at the rest of the country, and you can feel pretty good about American 2017 versus America 1964 versus America 1861.  It would be nice if more nonconservative newspapers, pundit, politicians, and other leaders would say, “You know, I’m not a conservative, but these student and BLM protestors are crazy and irresponsible and have no sense of history or perspective.”

Hillary Clinton’s Voting-Rights Speech

Here’s a column by me recently posted on National Review Online:

Looking forward to her run for president in 2016 and in an effort to bolster her bona fides with key parts of the Democratic base, Hillary Clinton gave a speech earlier last week on voting rights. In it she made two points, both wrong.

Her first claim was that the Supreme Court erred in its ruling in Shelby County v. Holder, in which it struck down the coverage formula that is used for Section 5 of the Voting Rights Act. That formula is used to determine which state and local jurisdictions have to go through the extraordinary and constitutionally dubious process of getting advance approval from the federal government whenever they make any change in a voting-related practice or procedure. 

The principal use of Section 5 has been to mandate racially gerrymandered and segregated voting districts, which is hardly a noble end, and indeed is flatly inconsistent with the ideals of the Civil Rights Movement.  And the formula is based on data from elections in the Sixties and early Seventies, with Congress refusing to update it when it reauthorized Section 5 in 2006 (had it done so, no state except perhaps Hawaii (!) would have been covered). Congress, moreover, was warned by the Court in 2009 about the problems with its approach, and did nothing about it. The Court’s decision, then, was perfectly reasonable.

Mrs. Clinton’s second claim was that voter-ID laws will, as a result of the Court’s action, be adopted by states, and that the antifraud justification for these laws is phony and the real motivation is to keep racial minorities and others from voting. This claim is unpersuasive for a number of reasons. 

To begin with, voter fraud is hardly a chimera, as John Fund and Hans von Spakovsky, among others, have persuasively documented and as the Supreme Court has recognized in upholding a voter-ID law. The lead opinion in that decision, by the way, was written by a liberal justice, John Paul Stevens, who — being from Chicago — knew that there actually is such a thing as voter fraud.

What’s more, if a state did pass or apply a voter-ID law with racial intent, there are plenty of other provisions in the Voting Rights Act that can be used to prevent such discrimination — provided, of course, the discrimination can actually be proved, in the same way that any other claim of racial discrimination (in employment, housing, etc.) must be proved. For example, a recently enacted law in North Carolina is being challenged; I doubt that the challenge is meritorious, but the point is that nothing in the Supreme Court’s Shelby County decision will prevent justice from being done there, or in Texas, or anywhere else.

This month will mark the 50th anniversary of the 1963 March on Washington that culminated in Martin Luther King, Jr.’s “I Have a Dream” speech. When one observes the gap between today’s racial rhetoric and our racial reality in 2013, it’s hard to know whether to laugh or cry. 

Secretary Clinton’s speech is typical of the rhetoric we are hearing and which will build to crescendo later this month, with a refusal to let go of the race card, whether the context is alleged racial profiling, criminal sentencing, home loans, criminal background checks by employers, school discipline, or voting rights. 

The reality is quite different. Racism (among all racial groups, by the way) can still be found and always will be, but it is nothing like it was in 1863 or 1963, and indeed it is legally proscribed in practically any public transaction, as well as being socially unacceptable. Opportunities are boundless for all, regardless of skin color, in any walk of life. Just ask our president. It’s not just that the glass is half full: Our cup runneth over.

Sad to say, the principal reason for the remaining racial disparities — and, consequently, for the racism that still exists — is the implosion of the black family. The resulting “tangle of pathology” was identified by Daniel Patrick Moynihan just two years after Dr. King spoke and when it was less virulent; believing that working and studying hard is “acting white” would have insulted Dr. King; I doubt he would have thought much of gangsta culture and its liberal enablers either, since he expected his children to be “judged by the content of their character.” It would be nice if Hillary Clinton gave a speech about all that, but I’m not holding my breath.

A “NO” to Automatic Felon Voting in Nebraska

The Center for Equal Opportunity has been busy of late with Nebraska — and, specifically, with urging its governor to veto a bill that would automatically allow felons to vote the day they walked out of prison. We wrote directly to the governor, for example, and also published this in the state’s largest newspaper, the Omaha World-Herald:

No automatic felon enfranchisement

Nebraska Gov. Pete Ricketts should veto the bill that would automatically restore the right to vote for felons when they walk out of prison (“Ricketts won’t sign bill on felon voting rights,” April 26 World-Herald).

If you aren’t willing to follow laws yourself, then you can’t demand a role in making laws for everyone else.

The right to vote should be restored to felons, but it should be done carefully, after a person has shown that he or she has really turned over a new leaf. The current two-year waiting period makes perfect sense and provides incentive for the felon to reintegrate himself into civil society. After all, the unfortunate truth is that many people who walk out of prison will be walking back in.

We don’t let everyone vote — children and non-citizens, for instance. We have certain minimum objective standards of responsibility and commitment to our laws that we require before people are entrusted with a role in the solemn enterprise of self-government.

People who have committed serious crimes against their fellow citizens cannot be entrusted with this right until they earn it back.

We were extremely gratified, then, that late last week Governor Ricketts did indeed veto that bill. 


A fair amount of the controversy specific to this legislative fight had to do with the claim that allowing felons to vote would decrease recidivism — a claim the governor rightly rejected as unsupported by the evidence, and which he also countered by noting that automatic reenfranchisement would remove an incentive for felons to turn over a new leaf.

In that regard, it’s worth quoting this section from a paper that I coauthored a few years ago:

Because the racial and other arguments are so unpersuasive, it is more and more frequently argued that re-enfranchising felons is a good way to reintegrate them into society. Attorney General Eric Holder has even claimed that felon disenfranchisement laws promote recidivism. As former Attorney General Michael Mukasey has pointed out, however, that claim, which derives from a study in Florida, is flawed:

Florida has had, and indeed has broadened, a system that requires felons to go through an application process before their voting rights are restored. Obviously, those who are motivated to navigate such a process self-select as a group less likely to repeat their crimes. Suggesting that the automatic restoration of voting rights to all felons would lower recidivism is rather like suggesting that we can raise the incomes of all college students if we automatically grant them a college degree — because statistics show that people with college degrees have higher incomes than those without them. 

Reintegration of felons into the community is an important goal, and this paper recognizes that restoration of voting rights can be a part of that process. Conversely, it is also important not to suggest to felons that it is hopeless for them to want to rejoin that community.

But restoration of voting rights should be done carefully and on a case-by-case basis once the felon can establish in fact that he has turned over a new leaf. When that has been shown, then holding a ceremony — rather like a naturalization ceremony — in which the felon’s voting rights are fully restored would be moving and meaningful. Restoration, however, should not be automatic, because the change of heart cannot be presumed. After all, the unfortunate truth is that most people who walk out of prison will be walking back in eventually.

Automatic felon re-enfranchisement sends a bad message: It says that Americans do not consider criminal behavior so serious that the right to vote should be denied because of it. Not allowing criminals to vote is also a form of punishment and a method of stigmatization that tells criminals that committing a serious crime puts them outside the circle of responsible citizens. Being readmitted to the circle should not be automatic.

While it is true that a disproportionate number of African Americans are being disenfranchised for committing serious crimes, their victims also are disproportionately black. The logical focus of an organization like the NAACP should be on discouraging the commission of such crimes rather than minimizing their consequences. 


It’s too early to uncork the champagne, however: The Nebraska bill’s proponents have announced that they will try to override the governor’s veto. So the Center for Equal Opportunity will now turn its focus back to the legislature. Wish us luck!


A few weeks ago, I noted that some folks on the Left seem to think it is outrageous that Candice Jackson, the new acting head of the Department of Education’s Office for Civil Rights, has criticized the use of racial preferences by universities, a.k.a. affirmative action. But what would be outrageous, I said, would be if the Trump administration were to put someone into this job who did not criticize such preferences. 

To be sure, I continued, the Supreme Court has, alas, for now ruled that such discrimination is permissible in limited circumstances, but the head of OCR should be someone who will indeed insist that this discrimination be limited, and who will work with the Justice Department for the eventual ban — by the Court or by the political branches — on politically correct racial discrimination in public and other taxpayer-supported universities. 

More recently, these same left-wing groups sent a letter to Ms. Jackson’s boss, Secretary of Education Betsy DeVos, attacking Ms. Jackson’s appointment. So I sent this letter of support to the latter: 

Dear Acting Assistant Secretary Jackson:

Congratulations on your recent appointment!

We already love you for the enemies you have made. In that vein, you might enjoy this item I recently posted on National Review Online: 

And I see that now the Leadership Conference on Civil Rights has attacked you. The letter it sent to Secretary DeVos is not exactly tactful; the paragraph aimed at you boils down to, “Since you, Secretary DeVos, are an ignorant bigot, we hope you won’t appoint another one.” Sheesh. I found particular laughable its attack on your “claims that equal opportunity/affirmative action policies discriminate against White students.” Well, of course they do: The very definition of a “racial preference” (the phrase the Supreme Court uses in this context) is that some get preferred — and therefore some get treated less well — because of skin color. We can argue about whether the discrimination is somehow justified or legal, but it IS discrimination. And, as a matter of fact, it’s not justified and should not be legal either.

Your critics are likewise wrong about both law and policy in their Title IX (gender identity/sexual assault) and “disparate impact” agendas. I could go on, but you get the idea. Your critics don’t know what they are talking about.

Thank you for taking the time to read my email — and, again, congratulations on your new post. You have our support!

Best regards,

Roger Clegg
President and General Counsel
Center for Equal Opportunity