Yesterday, the historic First Monday in October, the nine Supreme Court justices donned their silk robes, shook hands behind the lush red curtain as tradition dictates, and filed into the chamber to take their places on the bench for a new term. An issue they’re likely to confront is a challenge to Sec. 5 of the Voting Rights Act, one of the most important and far-reaching pieces of Lyndon Johnson’s Great Society legacy.
The provision gives the Dept. of Justice power to review in advance proposed changes to state voting laws and redistricting. In 1969, the Court ruled overwhelmingly that Washington has the right – Chief Justice Earl Warren alluded to “duty” in his opinion – to ensure that state election laws are not written to exclude some eligible voters.
If Sec. 5 is struck down – it covers all of nine Southern states and parts of several Northern states – there’ll be nothing standing in the way of states creating a 21st century version of Jim Crow laws except this time it won’t just be African-Americans kept from the polls but also Hispanics and other minorities, college students, poor and elderly voters who cannot easily meet ID requirements, and other people who have voted for decades without being accused of election fraud.
With Republican-controlled state legislatures hell-bent on preventing anyone not late-middle-aged, white, rich, conservative and preferably a male, mega-church-attending, evangelical Protestant from voting, is it time to enact a federal law standardizing voter registration for Congressional, Senatorial and Presidential elections?
Republicans in, say, Florida still might be able to keep likely Democratic voters from electing the Dade County mosquito control district superintendent But a national law would ensure that everyone eligible could vote in federal elections. Moreover, if the registration was portable – a “motor voter” provision – somebody who moves a few weeks before an election wouldn’t be blocked from voting for president simply because a job or family situation required changing residences after the deadline for registering had passed.
“Unfortunately, the Constitution does not give citizens an explicit right to vote,” lawyer Jamie Raskin told me in an interview. Besides writing the main article in The Nation’s Supreme Court issue that just came out, he’s a widely-recognized authority on Constitutional law, a professor at American University’s Washington College of Law and a member of the Maryland State Senate.
Indeed, in its infamous Bush v. Gore decision, the heart of the majority’s argument was that there is no Constitutionally-guaranteed right to vote – or even to have it counted. As Rep. Jesse Jackson Jr. (D-IL) stated, “The Court says we have a right to carry a gun but not the right to cast a ballot.”
Several years ago, Rep. Jackson proposed a Constitutional amendment to fix this problem but has had trouble attracting co-sponsors. Although the Congressman has been ill and absent from Washington for three months, he faces no serious opposition for re-election and a senior member of Jackson’s staff told me that he plans to introduce the “Dr. Martin Luther King, Jr. National Voter Registration Act of 2013″ in the new session. It would establish federal registration standards for Congressional, Senatorial and Presidential elections, imposing them on states if necessary.
“With sufficient political will,” Raskin observed, “Congress could enforce registration standards for electing members of the House and Senate, and for president” under the 14th Amendment’s Equal Protection clause.
The current draft of Jackson’s proposed law e-mailed to me seems to take advantage of a little-noticed and seldom mentioned part of Bush v. Gore: While saying states didn’t have to let people vote, the Court found that if legislatures franchise citizens then the law must apply equally to all.
The bill would create one set of rules covering everyone eligible to vote in a federal election.
Rep. Jackson proposes creating a “National Voter Registration Administration” (NVRA) with the authority to work with state election commissions in standardizing voter registration and procedures for federal elections. The NVRA would create and maintain state-wide lists for elections of federal officeholders, using data that includes current voting lists, driver’s licenses and unemployment offices but also from Social Security and Medicare offices, the IRS and other agencies that have current tallies of citizens.
At the same time, the law would give all eligible high school, college and university students the opportunity to register as well as allowing registration in workplaces and through voter registration drives.
“Given that voting rights enforcement is much weaker than it should be,” Raskin says, currently “we are at the mercy of ‘extremists’ on the Court deciding who can vote.”
If enacted, the law has some teeth. Like all federal laws, it would empower the Attorney General to take non-compliant states to court. But it goes beyond this by granting individuals who believe they have been unfairly denied access to the polls to file an action against the state where they live.
Tornado Of Opposition
A national voter registration law is likely to encounter a tornado of opposition from the right wing. Enactment requires that Democrats retake control of the House, hold on to the Senate and re-elect President Obama. Senate rules would have to change in the new session, as well, preventing one member from blocking action the other 99 might want to vote on.
The law would likely face an immediate court challenge from Republican governors and state Attorneys General who never seem to want to make it easy for people to vote.
Given the make-up and attitude of the four extreme right wing justices on the Roberts’ court, and the “Which way does the wind blow today?” outlook of Justice Kennedy, it is unlikely they would flutter their judicial eyelashes in favor a federal law covering all elections, which is one reason why the King Voter Registration bill exempts state and local elections from its purview. But even Justice Alito – and there’s an oxymoron if ever I heard one – would be hard pressed to find that Congress does not have authority under the 14th Amendment’s Equal Protection clause to set rules for voting in federal elections.
Oh, wait. We’re talking about Justices Roberts, Thomas, Scalia and Alito, and maybe Kennedy. They might.
After all, this is the same destructive Gang of Five that found a way to toss out laws and precedents dating back nearly to the beginning of the Republic when they decided that an inorganic corporation, a piece of legal wordsmithing with its soulless divisions, subsidiaries, heirs, successors and assigns, is as sentient as a living, breathing, flesh-and-blood, human being who pees and burps and weeps when the family cat dies, and damn to perdition Chief Justice John Marshall for saying otherwise in 1818 or the long line of Justices who came after him and agreed.
Still, overturning legislation governing elections only for federal offices might be a stretch even for the “Bring Guns To Lunch” bunch whose obtuse misunderstanding of grammar and punctuation rules used in the 18th century means 21st century Americans can walk around packing heat just like on the streets of Tombstone or even the Springfield Elementary School playground. Ay carumba!
Raskin insisted that a bill like Jackson’s would withstand a test of even the current Supreme Court. “The 14th Amendment clearly gives Congress the power to regulate federal elections.”
Follow Charley on Twitter @SuddenlyHomeles and please “like” this article on Facebook.