State of the Disunion and Voting Wrongs | Center for Equal Opportunity

There was mercifully little in last week’s State of the Union speech related to civil-rights issues. It was too bad that the president said, “And I’m reaching out to some of America’s leading foundations and corporations on a new initiative to help more young men of color facing especially tough odds stay on track and reach their full potential”; after all, why should efforts for those “facing especially tough odds” be limited to those of a particular color, or sex for that matter? The underlying problem facing, disproportionately, “young men of color” is that they are brought up by unmarried women, so it was also too bad that the president bragged about being raised by “a single mom.”

The president’s discussion of voting rights was misleading; but I was relieved it was so brief and tepid (note that he described the Supreme Court’s Shelby County decision as only having “weakened” the Voting Rights Act, rather than the Act being “gutted,” the Left’s verb of choice here). Worse was his demagogic harangue about equal pay for women, as if women were not already guaranteed equal pay for equal work by several federal laws; the bill he wants is more for the benefit of plaintiffs’ lawyers and social engineers, not women.

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Speaking of voting rights: A very bad bill has been introduced in Congress. Ever since the Supreme Court handed down its quite sensible decision last summer in Shelby County v. Holder, striking down part of the Voting Rights Act, the Left has promised to introduce legislation in response to it. And even before it was introduced, the Center for Equal Opportunity obtained a copy of a “discussion draft” of the bill and began to publicize the problems with it.

First, there isn’t any legislation needed. The Shelby County decision was aimed at only one section of the Voting Rights Act – the preclearance provision, requiring some (mostly southern) jurisdictions to get permission in advance from the federal government before making any change related to voting – and the rest of the Act remains in full force, including other, potent enforcement provisions for every jurisdiction in the country.

And indeed, for better or worse, the Justice Department and civil-rights groups are now using those other provisions to try to advance their agendas, which amount to a war on voter-ID requirements and ensuring the continued racial gerrymandering and segregation of voting districts. There’s no evidence that the Left needs more weapons in its arsenal; all that’s different in the post–Shelby County world is that now its lawyers have to prove racial discrimination before they can get court relief, which is the way that every other civil-rights law works.

A second point: Much in the draft bill has nothing to do with Shelby County at all. Rather, the Court’s decision is being used as an excuse to enact the Left’s wish-list in voting policy. In particular, the Left wants to promote its plaintiffs’ lawyers to the status of the attorney general in making civil-rights enforcement decisions. All this is a standard demand for the civil-rights groups whenever they (deservedly) lose a case and (inevitably) run to Congress.

The Left’s agenda is, of course, a decidedly color-conscious one. Thus, the bill itself features racial classifications, and offers protections for “minority voters” that it withholds from “nonminority” voters, in the context of voter turnout. (And, with regard to voter turnout: It might have been a plausible indicator of racial disenfranchisement in 1964 Mississippi, but it is quite implausible to say that it is evidence of racially discriminatory voting practices and procedures today. It’s just an excuse to put more jurisdictions under coverage – and, in theory at least, creates a perverse incentive for minority voters not to vote.)

Key provisions of the bill attempt to reinstate the “preclearance” provision of the Voting Rights Act by amending another section of the Act so that it is triggered even when there has been no constitutional violation, as is now required by that section. This raises the same sort of constitutional issue that resulted in the Shelby County decision in the first place, since Congress would again be acting to limit state prerogatives even though it lacks a constitutional predicate for doing so.

More broadly, the new legislation is an attempt to ensure that the Voting Rights Act works principally as a “disparate impact” statute. This approach to civil-rights enforcement is favored by the Obama administration, as shown by its new school-discipline “guidance” this month. But that approach is not about stopping real discrimination; it’s about ensuring racial proportionality by eliminating legitimate standards and procedures.

One last, overarching point: The bill creates a huge incentive for litigation, because it becomes very important for the Left to tally up as many rulings against a jurisdiction as possible in order to trigger coverage. It doesn’t matter if the cases are trivial; indeed, the bill creates an incentive not only for vexatious lawsuits but for manufactured ones. Plus, the “triggers” are set so low that just about any jurisdiction is targetable. There will be a cottage industry of plaintiffs’ lawyers who go around the country and try to get every jurisdiction covered – not just the paltry few states that the old Section 5 covered.

I made most of these points, but a little more briefly, in the Los Angeles Times, here, and not so briefly, on National Review Online, here.

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