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Race and Ethnicity

Justice Samuel Alito

Photo by Embassy of Italy in the US is licensed under CC BY-ND 2.0

In recent decades, voting rights progress has consisted of expanding access to a ballot and the ways to cast it—such as online registration, voting from home with mailed-out ballots and other options to vote before Election Day. Those innovations have been widely embraced, especially during the 2020 election in response to health concerns during a pandemic. In the general election, 56 million people voted in a different manner than they had in 2016.

But the Supreme Court's latest major decision on the Voting Rights Act of 1965 has imposed new standards that election law scholars say are hostile to the more expansive and convenient voting options that have surfaced in recent years. Even more troubling, the court's conservative majority has done so in a way that is reminiscent of the arguments put forth by last century's opponents of equal voting opportunities for racial minorities.

In Brnovich v. Democratic National Committee, the court eviscerated the strongest remaining section of the Voting Rights Act of 1965 (VRA), Section 2, which held that election laws and voting rules that had a racially discriminatory impact could be blocked. (In 2013, the court, in Shelby v. Holder, neutered the VRA's sections that allowed federal authorities to block regressive new election laws or voting rules in jurisdictions with histories of discrimination.) Perhaps most alarmingly in Brnovich, Justice Samuel Alito's majority opinion resurrected a legal strategy embraced by the opponents of last century's major civil rights reforms.

Brnovich held that some discriminatory impacts of an election law do not alone invalidate that law. That standard, put forth in "guideposts" laid out by Alito, means that suits challenging laws and rules that make voting harder must go beyond showing a discriminatory result. Those challenging a law must prove that its authors intended to discriminate—making it much harder to sue and win. Shifting the burden of proof from the result or effect of a law to its authors' intent was a tactic of 1970s anti-civil rights litigants.

But Brnovich went even further by also reviving the states' rights strategy cited by mid-20th-century segregationists. It held that state legislatures could cite an interest in policing voter fraud—which, factually, barely exists—as a pretext to pass stricter new election laws. And the ruling said that it didn't matter if a new law advantaged the party that authored the law.

"Effectively, most of the VRA is now dead," David Schultz, a Hamline University scholar specializing in elections and democracy, wrote in an email.

"The proof issue is critical," he continued. "[First, t]he court gives the benefit of the doubt to states that their laws are valid. Second, the court dismisses mere inconveniences as proof of creating less opportunity. It also dismisses small disparities as minor. And it also imposes a difficult burden on statistical evidence. Finally, even if someone can surmount all this, the court seems to dismiss some burdens by saying in the totality of the circumstances the overall voting system may be fine. In effect, despite the fact that voting is a fundamental constitutional right which is supposed to force the state to prove why its restrictions are valid, it shifts the burden to challengers with a near-impossible argument to make."

Other legal scholars have also written that Brnovich's dark implications are sinking in.

"[E]ach time I read Justice Samuel Alito's majority opinion in Brnovich v. Democratic National Committee, the angrier I become," Rick Hasen, a University of California, Irvine election law scholar, wrote on July 8 for Slate. "I'm angry not only about what the court did but also about how much of the public does not realize what a hit American democracy has taken."

Segregationist Revival

In strict terms, Hasen noted that the Brnovich ruling rolls back "the clock on voting rights to 1982," a date cited by Alito's majority opinion. That date is legally and politically significant. In fact, Brnovich cannot be seen as apolitical. As Schultz noted, "What makes this so bad is that the decision does not look neutral, and it makes the court look even more like a political institution where justices are simply partisan politicians with robes."

The early 1980s were the heyday of Ronald Reagan's presidency. At that time, both Alito and Chief Justice John Roberts held senior positions in the Justice Department, where the Reagan administration not only resisted enforcing federal voting rights law but also sought to weaken the same section of the VRA that is the focus of 2021's Brnovich decision. Today, few may recall that candidate Reagan gave a reactionary states' rights speech in August 1980 at the Neshoba County Fair in Mississippi—near where three civil rights workers were murdered in 1964. The murders were one of many events that propelled passage of the Voting Rights Act of 1965.

Southern states' rights advocates and their conservative descendants have long resisted broad voting rights—today, during Reagan's day, in the 1960s, and in the earlier Jim Crow era. Congress passed other civil rights laws by the late 1960s, such as in housing and employment. After the VRA's passage, its advocates' early focus was registering voters for 1968's presidential election and dealing with the legacy of exclusion.

Richard Nixon, who won that election, ran on a states' rights "Southern strategy" that conveyed his support for segregationist values. Once in office, Nixon appointed judges vetted by South Carolina's Republican Senator Strom Thurmond, a white supremacist, in exchange for his endorsement over segregationist Alabama Governor George Wallace, said Chris Sautter, an election lawyer and American University adjunct professor.

By the mid-1970s, Nixon had resigned. But the impact of his judicial appointments was being seen. In civil rights litigation outside the voting sphere, civil rights opponents and conservative judges chipped away at new civil rights laws by changing the burden of proof required by those suing to enforce those laws. The cudgel concerned altering the burden of proof from showing a law's discriminatory effect to proving discriminatory intent. In short, the prosecutorial burdens that Alito revived in Brnovich didn't come out of thin air but were used by segregationists in his formative years as a young Reagan administration lawyer.

By 1980, the reactionary push to alter the burden of proof in new civil rights laws reached the voting sphere. In City of Mobile v. Bolden, the Supreme Court held that Section 2 challenges required proving discriminatory intent—a ruling that contradicted the law's text. At that time, race-based electioneering was returning to GOP circles. In New Jersey's 1981 elections, the Republican National Committee used Jim Crow-like thuggish tactics to try to intimidate Black and Hispanic voters. The Democratic National Committee sued and won a now expired court order that restrained the RNC. (Election lawyers point to the RNC's tactics as foreshadowing the modern Republican Party's voter suppression playbook.)

Some of that backlash also was due to Jimmy Carter's presidency (1977-1981), Sautter said, which enforced another part of the VRA: its preclearance provisions. These sections required states and counties with histories of discriminatory elections to get federal approval before implementing any new election law or rule. (In 2013, the court, in Shelby v. Holder, a majority opinion written by Roberts, gutted the VRA's preclearance provisions.)

In 1982, the 97th Congress reacted to the Supreme Court's Mobile ruling by restoring Section 2's original burden of proof—those who sued only needed to show that a new law's effect was discriminatory. The VRA's 1982 amendments said that courts should consider the "totality of the circumstances" to protect voting rights. The Reagan administration opposed reviving the law's original standard, an effort led by Roberts, as Hasen noted in his recent Slate piece.

"Congress disagreed with the Supreme Court's [1980] interpretation of Section 2, and in 1982 Congress passed a revised Section 2. This revision came despite fierce opposition from the Reagan administration and the president's point person on the issue, John Roberts, who now happens to be the chief justice of the Supreme Court," Hasen writes. At that time, Alito worked in the solicitor general's office, arguing for the Reagan administration in federal court.

In Brnovich, Alito laid out five "guideposts" for courts to judge Section 2 claims, including the harder burden of proof.

"In truth, these are less guideposts and more roadblocks looking to stop plaintiffs at every turn when they assert their Section 2 claims," Hasen writes. "One of the guideposts specifically tells courts to compare the voting restrictions being challenged in a Section 2 case to the burdens of voting as they existed in 1982."

Back to 1982?

What does it mean when a big slice of voting rights law is rolled back to 1982? The first take by scholars like Hasen is that recent voting options—such as allowing early voting on Sundays to accommodate "souls to the polls" drives led by clergy—have little basis for federal protection.

"[I]magine a state passes a law barring early voting on the Sunday before Election Day, because white Republican legislators know that reliably Democratic Black voters often run 'souls to the polls' events to take church-going voters straight to vote after services," he writes. "While a challenge to such a rollback under Section 2 had a good chance of going forward before, how could it survive the 1982 benchmark now, when Sunday voting, and early voting as a whole, was rare?"

Consider the Texas legislature's current machinations to ban the expanded voting options that Harris County—home to Houston—implemented in 2020 to make voting more accessible in the pandemic, such as 24-hour voting centers and mailing out absentee ballot applications. These GOP-led reforms are unfolding despite the statewide victories in fall 2020 elections by Texas Republicans.

"States are [now] mostly free to do what they want with voting and there appears to be little federal remedies or help to protect voting rights," said Schultz. "More than a decade ago, I said we were in the middle of a Second Great Disenfranchisement in America (the first was after the Civil War Reconstruction ended). This decision [Brnovich] is confirmation that the Second Great Disenfranchisement is in full swing, and we can expect more restrictions on voting rights in the years to come."

Brnovich's reach may be even bigger. The way that Americans vote today is completely different from 1982. What is called convenience voting—such as decades of mailing out ballots to every voter in some states, and the options to vote from home or in person before Election Day—did not exist in 1982. Neither did the voting technology and related election rules in wide use today.

"The expansion of voting rights since the 1980s has repeatedly been met with conservative resistance, first in the form of Republican Party initiated so-called ballot security programs and eventually with extreme voter suppression laws," said Sautter. "But the strategy to eviscerate voting rights with an ultra-conservative controlled judiciary goes back to Nixon and the presidential election of 1968. Until the makeup of the Supreme Court changes, progressives will have a difficult time winning these battles."

In the meantime, the best progressives might hope for is passage of the John Lewis Voting Rights Act, which restores and fortifies the VRA, which Sautter said would "seriously undermine the rationale of Alito's opinion." That scenario hinges on all Senate Democrats voting to create a voting-right exception to the filibuster rule.

On July 13, President Biden gave a passionate speech where he decried the Brnovich ruling and called Republican efforts to subvert voting rights and election results "21st-century Jim Crow." Biden called on Congress to pass sweeping federal voting rights legislation, including the John Lewis Voting Rights Act, but he did not mention the Senate filibuster.

"Just weeks ago, the Supreme Court yet again weakened the Voting Rights Act and upheld what Justice Kagan called, quote, 'a significant race-based disparity in voting opportunities,'" Biden said. "The court's decision, as harmful as it is, does not limit the Congress' ability to repair the damage done. That's the important point. It puts the burden back on Congress to restore the Voting Rights Act to its intended strength."

This article was produced by Voting Booth, a project of the Independent Media Institute.

Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, The American Prospect, and many others.

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Organizers protest Robert E. Lee statue in Charlottesville, VA in 2017.

Reprinted with permission from Roll Call

In Charlottesville, Va., where a Unite the Right gathering of neo-Nazis, white supremacists, Lost Cause devotees and other angry history deniers left destruction and death in their path in 2017, there was a different scene this past weekend.

The city removed statues of Confederate generals Robert E. Lee and Stonewall Jackson, memorials to those who fought on the losing side of a Civil War to maintain the brutal and murderous institution of slavery. They were erected as monuments to white supremacy, not in the 1860s but the 1920s, a Jim Crow threat to Black citizens to "know their place."

Now, as then, there are those opposed to this bit of progress, with arguments that removing the stone idols would mean erasing history, which is ridiculous since that history will never disappear from books, museums and tall tales handed down by the "never forget" brigade.

Ironically, many of these same folks would be only too glad to forget what really happened, during that bloody Civil War and in the 100 years after — the ingenious laws and policies that continue to reverberate through everything from health care to housing.

As part of the plan, they've come up with a fear-based campaign to, you got it, erase any part of American history that deals with racism and the ways it was intentionally embedded in American institutions. And predictably, this battle in a war that has never ended is actually gaining momentum that Republican politicians hope to ride to electoral victory.

The Ultimate Snowflakes

They could not do it without the cooperation of aggrieved parents fighting against something they haven't even tried to understand.

I really wish that instead of tying themselves into contradictory knots, these troops standing in the way of the truth — the ultimate snowflakes trying to "cancel" facts — would come clean and just admit that it's not history they're opposed to, it's any reckoning that gets in the way of their myths.

The version of history they love is what's been spoon-fed to many generations until fairly recently — propaganda in the name of patriotism. The concern "for the children" expressed in tear-stained testimony at school board meetings from Loudoun County, Va., to Chandler, Ariz., only extends to certain kids, their own. It leaves out the Black, brown, Asian American and Native American children who have suffered through and been traumatized by a white-washed tableau that either villainizes or disappears American heroes who always have been stalwart fighters for an inclusive and welcoming society, also known as America as it supposedly aspires to be.

There is no more absurd example than in Tennessee, where parents from "Moms for Liberty" don't want children to learn about what six-year-old Ruby Bridges endured when she integrated her New Orleans elementary school in 1960. The image of young Ruby immortalized by quintessential American artist Norman Rockwell depicts her daily walk surrounded by federal marshals. To get an education, her body and soul had to survive angry white parents, faces twisted, who greeted her with jeers, who threatened to poison her, who, when a child her age should have been playing with baby dolls, held up a coffin carrying a Black one so Ruby could get the message.

So, white children of today are too fragile to merely read about the dangerous racism a 6-year-old faced not that long ago? Do their parents realize they are still trying to bar Ruby Bridges from school?

A complaint is that Ruby's story needs more whites in shining armor.

Well, there were a few, including Barbara Henry, a white teacher from Massachusetts, who did the job she was paid to do for the year Ruby was in a class all her own. And there are the parents who eventually sent their children back to get an education, in more ways than one.

The star of her story, though, is Ruby, someone any child should admire. She never cried or whimpered, said federal marshal Charles Burks. "She just marched along like a little soldier." A former first lady, Eleanor Roosevelt, wrote her a letter.

An argument brought up again and again in these curriculum fights is that teaching stories like Ruby's causes children of color to think of themselves as victims. The opposite is true. Ruby, at 66, is still an activist, as well as a wife and mother. Ruby Bridges Goes to School: My True Story, her book that parents are so afraid of, teaches lessons of resilience and strength that transcend color. The message she continues to share: "I tell children to be kind to each other."

Oh, the horror!

Beyond The Classroom

Children wrongly taught that America was and has always been perfect, presumably grow into the fragile flowers that Sen. Tom Cotton believes need protecting when they enter the military. In the manner of the thought police in Russia or China, the Arkansas Republican is trying to get an instructor at the U.S. Air Force Academy fired for teaching about systemic racism that shaped all-American institutions, like the military.

Does Cotton not know that African Americans fought for the right to fight and die for a country that enslaved them, discriminated against them, segregated them into separate units until 1948?

Was Cotton not taught of the Japanese Americans who fought in World War II — including in one of the most decorated regiments in the country's history — while family members back home were herded into internment camps, suspect only because of their race and ethnicity?

That made their sacrifice more patriotic, with their numbers in service still strong. Though they lack representation at the top, about 43 percent of the 1.3 million men and women on active duty in the United States military are people of color.

People of color in America know, have always known about, injustice, just as six-year-old Ruby learned. Being clear-eyed about how the country falls short of its ideals only hardens the determination to right those wrongs.

And, in truth, it's not just students of color whose lives continue to be affected by systemic racism. In a Texas school, a white teacher gave white students permission to use the "N-word." In California, a high school basketball team had its title taken away for throwing tortillas at members of the opposing, predominantly Latino team at a postgame "celebration."

All children, as well as adults who should know better, have learned only too well lessons about the country's power divide, about who counts and who does not.

When you hide history, a price will be paid. Esther Bejarano knew. The Auschwitz survivor, who used the power of music to fight anti-Semitism and racism in postwar Germany, died recently at the age of 96. She used to tell the young people: "You're not guilty of what happened back then. But you become guilty if you refuse to listen to what happened."

When I study the pictures of those everyday Americans spewing hate at a 6-year-old and then the faces of angry parents and politicians, so insistent on burying the truth, my wish is that they listen, then look in a mirror.

Mary C. Curtis has worked at The New York Times, The Baltimore Sun, The Charlotte Observer, as national correspondent for Politics Daily, and is a senior facilitator with The OpEd Project. Follow her on Twitter @mcurtisnc3.