The racial reckoning ignited by George Floyd’s murder entered its second year with a severe case of whiplash. In a rare bipartisan vote, Congress designated Juneteenth as a national holiday, marking the end of slavery 156 years ago. Two weeks later, the Supreme Court took a sledge hammer to one of this country’s premiere civil rights laws.
As if that were not enough to provoke metaphysical vertigo, many of the Republicans who voted for the Juneteenth holiday are hellbent on keeping the subject of racial strife – past and present – out of public school classrooms. They insist that systemic racism ended a long time ago and teachers should not talk about it.
So here’s a subversive extra credit assignment for high school students: Download the Supreme Court’s recent decision eviscerating the Voting Rights Act (VRA), and then, with a highlighter, mark every past and present example of systemic racism you can find. (Tip: don’t forget to read Justice Elena Kagan’s dissent, even if you have to buy a second highlighter.) When you return to school this fall, quietly drop your work on the teacher’s desk. If you live in a red state and like your teacher, put it in a plain paper bag.
The VRA was all about systemic racism. Long seen as the crown jewel of the civil rights movement, this powerful 1965 law was designed to quash a multitude of systems that kept Black people from voting. The law’s teeth were divided between two chapters. One of them required a number of southern states with a history of discrimination to have any new voting law approved by the Justice Department. Between 1965 and 2006, that department blocked nearly 1,200 discriminatory voting laws from taking effect (P. 8 of Kagan dissent).
Eight years ago, however, the Supreme Court tossed that entire chapter out, saying that “times have changed,” and that states no longer need Justice Department approval on voting regulations. To no surprise of anyone paying attention, the dearth of new discriminatory voting laws had little to do with changing times. It was all about preclearance from the Justice Department. Within days of that 2013 decision, Caucasian-centric states started cranking out election laws making it more difficult for people of color to vote. That production line continues to operate at full speed.
The only solace was the remaining VRA chapter on enforcement, the one that prohibits states from having any election practice that “results in a denial or abridgement” to vote on the basis of race. In theory, the courts could strike down laws that brought about that kind of a discriminatory result. Until now, that is. In its final decision of this year’s term, the Supreme Court used an Arizona case to effectively slam the door on the law’s only remaining enforcement mechanism.
That 6-3 ruling came from Justice Samuel Alito and five fellow conservative justices, all rabid adherents of deciding cases by the precise text of a statute, rather than attaching their own meaning to a law. Amazingly, they ignored the law’s singular threshold for finding an election regulation to be discriminatory, namely that it “results in a denial or abridgement” of voting rights on the basis of race. Instead, the majority upheld two Arizona election regulations that resulted in a disparate impact on the voting rights of Blacks, Latinos and American Indians (P. 32 of Kagan dissent). Why? Because, said the court, there was no proof that those results were motivated by an intent to discriminate. Congress amended the VRA back in 1982 to make it clear that the standard of enforcement of a voting law is whether it has a discriminatory impact on the basis of race, regardless of motive.
At issue in the Arizona case were two new election laws. One made it a crime for people to pick up sealed absentee ballots and deliver them to a collection box or polling place. The other voided all ballots cast by voters in the wrong precinct. There was evidence that both laws impacted Black, Latino and American Indian voters far more than it affected whites.
But, but, but, say Alito and his textualist buddies, the state had a noble intent with these laws, namely to prevent voter fraud, although there have been zero instances of such fraud involving out-of-precinct voting and ballot collection.
Although intent is not an element in VRA enforcement, it doesn’t take a think tank to figure out what is motivating an avalanche of state election restrictions aimed at making it more difficult for minority voters to cast a ballot. Most people of color vote for Democrats. Keeping them away from the polls is good for Republicans.
In making their case for these two Arizona laws, GOP legislators openly argued that the restrictions are needed to damage the Democrats’ get-out-the-vote campaigns. During oral arguments at the Supreme Court, Justice Amy Coney Barrett asked an attorney for the Republican National Committee why the party has an interest in the litigation. The answer: the restrictions reduce Democratic votes and “politics is a zero sum game.”
In other words, the party of Lincoln is saying, in effect: “Nothing personal, Black people. We want to keep you from voting because most of you support Democrats. It’s got nothing to do with race.” The enormity of this court decision reaches far beyond Arizona. The flood gates in every red state are wide open to unlimited obnoxiousness when it comes to keeping racial minorities away from the polls. So far in 2021, 28 restrictive voting laws have been passed in 17 states, according to the Brennan Center for Justice.
There is a gravestone in a Hattiesburg, Mississippi cemetery that bares this inscription: “If you don’t vote, you don’t count.” According to The Nation, buried in that grave is Vernon Dahmer, a voting rights activist and Hattiesburg NAACP chapter president back in the 1960s. Just months after the VRA was passed, Dahmer died when his home was firebombed by Klansmen.
Fifty-six years later, the future of the Republican Party depends on making sure that millions of non-white voters don’t count.
Even with Juneteenth as a federal holiday, systemic racism marches on. And on. And on.