Yesterday I testified at a hearing of the House Judiciary Committee. Also testifying was Robert Kengle. A couple of comments about his testimony. The Court in Shelby also concluded that Congress weakened the constitutionality of the Voting Rights Act’s preclearance requirements in 2006 when it altered the Section 5 standards. Beginning in 2006, submitting jurisdictions were forced to prove a negative. Congress required them to prove the absence of “any” discriminatory effect by inserting “any” into Section 5. Any means any. The Justice Department Civil Rights Division has taken the 2006 amendments literally when reviewing submissions like Georgia’s proof of citizenship requirement to register to vote, or South Carolina’s voter identification law. The DOJ adopted a de minimis trigger for interposing an objection despite mitigating facts and objected in multiple instances – including in Georgia and South Carolina. In Shelby, the Supreme Court rejected the concept of so-called “second generation” structural racism to justify continued federal oversight of elections in 15 states. Congress should heed the warning. According to the Supreme Court, genuine, direct and immediate racial discrimination alone justifies federal intrusion into state sovereignty, not vague and attenuated so-called “second generational structural” discrimination. The Court made it clear that only certain current conditions could justify a formula for Section 5 coverage. Among the touchstones listed in Shelby are: “blatantly discriminatory evasions of federal decrees,” lack of minority office holding, tests and devices, “voting discrimination ‘on a pervasive scale,’” “flagrant” voting discrimination, or “rampant” voting discrimination. Again, pay close attention to the Supreme Court. Federal intrusion into powers reserved by the Constitution to the states must relate to these empirical circumstances. Triggers built around political or partisan goals cannot withstand Constitutional scrutiny.
First, in describing Shelby, he indicated that the Court did not strike down Section 5 of the Voting Rights Act and said it was constitutional. Well, not really. In fact, the plaintiff in the case deliberately never challenged Section 5, so the issue was not even before the Court. Section 5 was only at issue in the case is so far as it informed the amount of burden a state faces under Section 4. And on that score, Kengle was doubly wrong because the Court spoke directly to the heavier burden of the reauthorized Section 5. Because we can’t expect most in the media or academics to correct testimony from one of their own, here was a relevant portion of my written testimony:
Next, Kengle said that the Supreme Court did not preclude classes of evidence that Congress may look to in developing new Congressional triggers. Wrong again. The entire Shelby case was about preclusion of Congressional evidence. His assertion, frankly, was surprising given the entire posture of the case. But the Court even got specific. Again, from my testimony:
As I said, we can’t count on academics to correct misstatements of any witnesses with whom they agree. Perhaps this is why Hans von Spakovsky being asked to testify yesterday bothers them so badly. There is no longer a monopoly on the Voting Rights Act narrative.