Opponents of effective voting rights enforcement have taken to right-wing media outlets to allege that the Department of Justice engaged in "collusive," "illegal," and "crooked" acts for its role in the determination of whether a California county and the state of New Hampshire qualify to opt-out of Section 5 of the Voting Rights Act (VRA). But these allegations of "trickery," most recently pushed by National Review Online contributor Hans von Spakovsky, ignore that DOJ is complying with the text of the VRA as interpreted by the courts.
Two former Bush administration DOJ officials have accused the department of acting improperly in the successful removal of Merced County, California, from the voter protection requirements of Section 5 and the ongoing consideration of such an opt-out for New Hampshire. Writing on the right-wing blog PJ Media, J. Christian Adams argued that in the Merced case DOJ had "ignore[d] the law" and "conned" a federal court as part of an "elaborate legal ruse" to preserve the VRA in Shelby County v. Holder, the case in which the U.S. Supreme Court will consider a claim that Section 5 is unconstitutional. Continuing this attack, von Spakovsky accused the DOJ in the National Review Online of similar "deception" and "manipulation" of the VRA in its considerations of the New Hampshire case, again in order to "manipulate the Supreme Court in the Shelby case." A conservative advocacy group immediately adopted their argument and filed a motion to intervene in the New Hampshire case, as was predicted by election law expert and law professor Rick Hasen:
I expect this argument to get a lot of play.
The great irony here, for those who don't follow this issue closely, is that you have people who oppose section 5 of the VRA complaining that DOJ is making it too easy for those jurisdictions subject to its preclearance provision to escape from the Act's coverage.
Under Section 5 of the Voting Rights Act, Southern jurisdictions who illegally denied citizens the right to vote during the Jim Crow era - and subsequent jurisdictions that engaged in similar conduct - are forbidden from changing covered election practices without federal approval. There is a legal opt-out to Section 5, by which jurisdictions can "bailout" of the "preclearance" requirements by proving they are no longer breaking the law. To encourage successful bailouts, Congress increasingly "liberalized" this process. Similarly, the Supreme Court in its last VRA case -NAMUDNO v. Holder - "rewrote" the bailout requirements to encourage even more use of the process.
Nevertheless, right-wing activists have successfully placed the Shelby case before the Supreme Court, which could release all covered jurisdictions if Section 5 is declared unconstitutional. Adams and von Spakovsky, who quote anonymous sources and internal DOJ documents to support their arguments, argue that DOJ has "designed" a "legal strategy" to avoid this outcome by aggressively following NAMUDNO.
Beyond the unremarkable fact that the DOJ - the defendant in Shelby - would prefer not to both lose the case and part of the most effective civil rights law in history, Adams and von Spakovsky misrepresent the bailout cases to claim neither Merced nor New Hampshire qualify. Adams complains that the extensive DOJ investigation of Merced's bailout request revealed that the county should have submitted certain past election changes for preclearance and because the county "settled" a Section 5 case, it was ineligible for bailout. But Merced's counsel responded to Adams' accusations, pointing out that "case law under Section 5...holds that the preclearance obligation can be retroactively satisfied":
Mr. Adams is simply incorrect about the Lopez litigation. There was no "settlement"; the County won that lawsuit outright, having summary judgment granted in its favor. See Lopez v. Merced County, 2008 U.S. Dist. LEXIS 3941 (E.D. Cal. Jan. 16, 2008). Thus, the County was not disqualified from bailout by virtue of the provision relating to consent decrees entered within the last 10 years. 42 U.S.C. § 1973b(a)(1)(B).
[R]egarding the submission of a number of historical voting changes for preclearance in connection with the bailout, there are a number of points to be made:
Section 5 itself provides that oversights in preclearance compliance may be forgiven in a bailout action if they were "were trivial, were promptly corrected, and were not repeated." 42 U.S.C. § 1973b(a)(3). In other words, Mr. Adams's implication that Section 5 has a "no tolerance" standard--and that the Attorney General is therefore ignoring the command of Congress--is refuted by the text of Section 5 itself.
"[P]ost hoc" preclearances are typical in connection with bailout, seriously undermining the notion that such an approach is part of a vast conspiracy to save Section 5.
Adams subsequently admitted "retroactive" preclearance was possible.
Von Spakovsky repeated Adams' claim that states seeking bailouts must not have "failed to submit for preclearance...voting changes they have made" over the past ten years, without acknowledging the retroactive preclearance that may occur for New Hampshire. Von Spakovsky used this misleading point as proof that New Hampshire is actually less qualified than Shelby County for a bailout, because New Hampshire allegedly has more unsubmitted preclearance requests than Shelby County did. But the footnote from the Shelby case on appeal that von Spakovsky partially quoted for the uncontroversial rule that unprecleared voting changes - absent retroactive approval - preclude bailout, explicitly notes that Shelby County's primary problem was DOJ's objection:
Although the Court did not permit discovery into the question of Shelby County's bailout-eligibility, it is clear -- based on undisputed facts in the record -- that Shelby County is not eligible for bailout. Under Section 4(a)(1)(E), a jurisdiction is only eligible for bailout if, during the ten years preceding its bailout request, "the Attorney General has not interposed any objection...with respect to any submission by or on behalf of the plaintiff or any governmental unit within its territory." 42 U.S.C. § 1973b(a)(1)(E). The Attorney General concedes that, in 2008, he interposed an objection [.]
Since NBC sportscaster Bob Costas commented on the murder-suicide involving NFL player Jovan Belcher during Sunday Night Football, he has received a torrent of criticism from conservatives in media and the National Rifle Association. On the December 5 edition of The O'Reilly Factor, Costas called for all gun sales to be conducted with a background check, a proposal that host Bill O'Reilly, the American public, and even NRA members largely support.
Costas drew the ire of right-wing media after favorably quoting a FoxSports.com column that noted, "If Jovan Belcher didn't possess a gun, he and [his victim] Kasandra Perkins would both be alive today." The National Rifle Association accused Costas of being involved in a "media conglomerate" conspiracy to ban all firearms. Although Costas did not mention any specific gun violence prevention proposals in his commentary, Fox News accused Costas of "lecturing America on gun control." Fox Nation and the Drudge Report claimed that Costas went on a "gun control rant."
Now Costas has gotten specific, and his proposal - to conduct background checks on all gun sales - is wildly popular.
Townhall news editor Katie Pavlich makes a facile comparison between "two gun cultures" in America and claims that gun violence is largely limited to urban areas. However, high levels of gun death exist throughout America, and many of the states with the highest rates of gun death are rural states with weak gun laws.
In one gun culture, Pavlich claims firearms are used "to celebrate American history, for collection, personal protection, hunting and sport" while the other gun culture "can be found in the inner city of Chicago, Washington D.C., New York City, Los Angeles and others."
In publishing today's column, Pavlich joined a growing chorus of conservatives in media scrambling to deny the link between firearm availability and gun violence in the wake of the murder-suicide involving NFL player Jovan Belcher. From her column:
Historically in America we've had a deep respect for firearms. The vast majority of people have used them to celebrate American history, for collection, personal protection, hunting and sport. We see American gun culture celebrated each year when dads take their kids elk hunting for the first time. We see it when women head to the range to safely practice shooting their new pink pistols. We see it when a mother shoots an intruder while she is home alone in order to protect her children. We see it practiced when thousands of people sign up for concealed carry permit and hunters' safety classes each year. Not to mention, the multi-billion-dollar firearms industry employs millions of people and provides the government with billions in tax revenue every year.
The other gun culture in America can be found in the inner city of Chicago, Washington D.C., New York City, Los Angeles and others. Ironically, violent gun culture is found within gangs in cities with the strictest gun laws. It is the same culture promoted in Hollywood films made by liberals, glorified by rappers whose music is worshiped in violent gang plagued neighborhoods and disrespectfully joked about at NBA parties.
From the December 4 edition of Current's Viewpoint with Eliot Spitzer:
Loading the player reg...
From the December 4 edition of Fox News' The Five:
Loading the player reg...
National Rifle Association executive vice president and columnist Wayne LaPierre has unveiled a new conspiracy theory, alleging that NBC sportscaster Bob Costas' discussion of the murder-suicide involving NFL player Jovan Belcher was part of a plan by "media conglomerates" to ban guns.
On Sunday Night Football, Costas' quoted approvingly from a FoxSports.com column that noted, "If Jovan Belcher didn't possess a gun, he and [his victim] Kasandra Perkins would both be alive today."
Responding on the December 3 edition of NRA News, LaPierre said Costas was promoting "an anti-Second Amendment agenda by somebody in the media with access to these media conglomerates that are more than happy to amplify that all over the country and try to ram it down the throats of average American citizens."
LaPierre and NRA News host Cam Edwards went on to use Costas' comments to promote joining the NRA:
EDWARDS: [Americans] can join the NRA and join a part of the largest organization in America protecting and defending the right to keep and bear arms.
LAPIERRE: Yeah, I mean we are about to be victim of a siege against the Second Amendment in this country going into Obama's second term. I mean it's going to be ugly. It's going to come hard, fast and soon. And were going to have to survive this period of unprecedented danger. And the best way to survive is to make the NRA stronger than ever. Never has membership in NRA been more important than right now.
The NRA often trades in baseless conspiracy theories to promote gun ownership and NRA membership.
In September 2011, LaPierre announced the existence of a "massive Obama conspiracy" to end private firearm ownership in the United States. The basis for LaPierre's claim that Obama would "[e]rase the Second Amendment" in his second term was that Obama did not act on guns during his first term. The NRA also claims that a United Nations treaty with the stated goal of preventing diversion of weapons to human rights abusers will be used as a pretext for gun confiscation in the United States.
Volokh Conspiracy blogger and gun activist David Kopel denied that there is a link between firearm availability and homicide, while distorting statistics to downplay the effectiveness with which other industrialized nations prevent gun violence.
Kopel made his comments on the December 3 edition of CNN's Piers Morgan Tonight, during a discussion of the murder-suicide involving NFL player Jovan Belcher. After NBC sportscaster Bob Costas favorably quoted a FoxSports.com column that noted "If Jovan Belcher didn't possess a gun, he and [his victim] Kasandra Perkins would both be alive today," on Sunday Night Football, conservatives in media responded in force with false claims denying the epidemic of gun violence in America.
This pattern continued on Piers Morgan, with Kopel claiming that "there is no relation, scientifically in social science, between the number of guns and the homicide rate." To the contrary, research conducted at the Harvard Injury ControlResearch Center found that "states with higher levels of household gun ownership had higher rates of firearm homicide and overall homicide."
From the December 3 edition of Fox News' The Five:
Loading the player reg...
From the December 3 edition of Fox News' The O'Reilly Factor:
Loading the player reg...
Addressing the murder-suicide involving Kansas City Chiefs linebacker Jovan Belcher, discredited gun researcher John Lott downplayed the relationship between firearm availability and the incidence of murder in a FoxNews.com column. Lott took issue with NBC sportscaster Bob Costas discussing the tragedy during halftime on Sunday Night Football. Quoting FoxSports.com columnist Jason Whitlock, Costas said, "If Jovan Belcher didn't possess a gun, he and Kasandra Perkins would both be alive today."
Lott disputed that the presence of a firearm had anything to do with the murder-suicide, writing, "Even if no weapon existed, the strength differential is so large that Belcher could have easily killed [his girlfriend Kasandra] Perkins in any number of ways."
Lott's attempt to take guns out of the equation was the latest effort by right-wing media to silence the discussion of gun violence in the wake of Saturday's murder-suicide. It is also at odds with research about the relationship between gun availability and gun violence.
As Forbes contributor Rob Waters noted, the presence of a firearm drastically increases the lethality of domestic violence incidents. Using statistics compiled by the Law Center to Prevent Gun Violence, Waters wrote that, "If a gun is used during a domestic violence assault, there's a 23-fold increased likelihood that the victim will die. Women who are victims of domestic violence are five times more likely to be killed if their abuser owns a firearm."
In a November 30 article in The Atlantic, national correspondent Jeffrey Goldberg wrote that it was "too late" to enact gun violence prevention laws, using discredited research from John Lott's "More Guns, Less Crime" thesis and debunked claims by criminologist Gary Kleck that defensive gun uses outpace gun crimes.
From the December 3 edition of Fox News' Fox & Friends:
Loading the player reg...
On last night's edition of Cam & Company on National Rifle Association News, host Cam Edwards and guest Jim Geraghty of the National Review Online baselessly attacked the methodology of a bipartisan poll that showed voters in Virginia, Colorado, and North Carolina trusted President Obama more on gun policy than Mitt Romney.
A poll by Democratic pollster Momentum Analysis and Republican pollster Chesapeake Beach Consulting found that voters in Virginia trusted President Obama more than Mitt Romney on guns by a 9 point margin, and in Colorado and North Carolina by four and one point margins.
Edwards and Geraghty erroneously claimed that the poll could not have produced meaningful results because they said it only sampled 500 voters across three states, and they questioned whether the sample was representative. In fact, the poll's methodology clearly states that 500 voters were sampled in each of three states polled, a sample size commonly used among professional pollsters. Reached for comment, the pollsters indicated that they used "industry accepted" techniques in conducting the poll.
In a recent column, Wall Street Journal editorial board member James Taranto seized on a tribute to lifelong civil rights activist Lawrence Guyot written by the progressive Constitutional Accountability Center as an opportunity to attack the Voting Rights Act of 1965. But Taranto's criticism of the most effective anti-discrimination law in history ignores ample relevant history and case law.
Guyot passed away on November 22 at the age of 73. As a civil rights worker in the 1960s, he was beaten, jailed, and tortured for the voting rights and anti-segregation advocacy he undertook on behalf of African-Americans in Mississippi. In their tribute to Guyot, CAC noted that while current voter suppression is nowhere as violent as the tactics Guyot suffered, if unchecked by the Voting Rights Act, their effects still present discriminatory voting obstacles.
In his November 29 column, Taranto used CAC's Guyot obituary to attack Section 5 of the VRA, which Congress and federal courts have consistently reauthorized and utilized as essential for protecting the voting rights of millions of citizens who aren't white. Taranto also criticized the absence of extensive legal analysis in the obituary, complaining that it instead had "adjectives and adverbs," and more than one use of the word "iconic."
For a pair who work for something called the Constitutional Accountability Center, [Doug] Kendall and [Emily] Phelps don't have a lot to say about the constitution. Their defense of Section 5 is purely sentimental, with lots of intensifying adjectives and adverbs. Shelby County v. Holder, they exclaim, is "a monumentally important challenge to a key part of the Voting Rights Act, the iconic law for which for which [sic] Mr. Guyot shed blood."
Taranto, who cites a map and the Supreme Court brief for the Alabama county challenging the constitutionality of the VRA, focuses solely on the obituary to accuse CAC of not discussing the Constitution more in their tribute to Guyot. Yet Taranto fails to mention the extensive legal analyses and legal briefs CAC has written on the constitutionality of the VRA, all easily accessible on their website, as well as in other news outlets.
It is true that that CAC used the word "iconic" four times. It is also true that Taranto managed to write an entire column on the inappropriateness of Section 5 of the Voting Rights Act without once using the words Jim Crow, and only referencing voter suppression in quotes. Discussion of these topics is crucial to any analysis of the VRA.
Throughout his column, Taranto questions why only certain areas must get approval for changes to their election practices under the VRA. The answer is simple: even with the passage of the Fourteenth and Fifteenth Amendments to the Constitution following the Civil War, states of the Old Confederacy in the South refused to recognize equal protection and voting rights for African-Americans, through Reconstruction to the late Jim Crow era. From the U.S. Commission on Civil Rights' 1971 introduction to the 1970 VRA amendments:
Despite these constitutional protections [of the Reconstruction amendments], blacks in the South were virtually disenfranchised from the end of the Reconstruction Period until 1965, and members of other minority groups have also frequently been denied the right to vote.
It was not until the passage of the Voting Rights Act of 1965, however, that this right was extended to black people in the South in a meaningful way.
As Congress discovered more evidence of discrimination against racial, ethnic, and national origin minorities, more geographic areas were added to the scope of the VRA's anti-discrimination protections. Evidence of this discrimination can be shown by disproportionate effects or basic logic, which is why one appellate court recently found evidence of the former in South Carolina, and another appellate court utilized the latter to explain that if the predominant number of "young,...elderly and poor voters" affected by voter suppression in Texas are racial minorities, the VRA applies.
The reason that non-Southern areas remain uncovered by Section 5 of the VRA despite recent evidence of similar voter suppression is also unexplained in Taranto's column. States uncovered by the VRA do indeed engage in the same discriminatory tactics that have been overwhelmingly rejected in the courts. The answer to this omission is not complicated: it was difficult enough to pass the 2006 reauthorization of the Voting Rights Act during a Republican presidency, and as evidenced by current Republican obstruction, updating the VRA to cover additional areas has become increasingly unlikely.
Taranto was correct that CAC's obituary of Guyot did not go into a detailed legal analysis of whether the reauthorization of the VRA in 2006 was appropriate. If he wants to see their legal analyses, however, he can read the briefs they have filed in the case or he could read any of the many blogs and articles they have written on the issue. From the CAC's Text & History:
To anyone who takes the Constitution's text seriously, there are glaring holes in the conservative constitutional attack on the Voting Rights Act. Shelby County's primary argument is that the Act's preclearance requirement is outdated and unnecessary, given changes in Alabama (where Shelby County is located) and elsewhere, but the Constitution, in fact, assigns to Congress the job of deciding how to enforce the Constitution's ban on racial discrimination in voting.
It is certainly true that the coverage formula relies on decades-old data that has less relevance today. But, as the D.C. Circuit concluded, the formula was always less important than the jurisdictions it covered. Going all the way back to 1965, "Congress identified the jurisdictions it sought to cover - those for which it had 'evidence of actual voting discrimination' - and then worked backward, reverse-engineering a formula to cover those jurisdictions." And, as the record described by Judge Bates and Judge Tatel in Shelby County shows, these jurisdictions continue to be the worst offenders, consistently refusing to live up to the Constitution's promise of a multi-racial democracy.
Taking National Rifle Association conspiracy theories to the next level, WorldNetDaily founder Joseph Farah is suggesting that President Obama might be spurring gun sales so that he can later confiscate those weapons after the occurrence of "civil strife" or "armed rebellion." According to Farah, Obama will do this because his "real goal -- the objective he has in common with all true leftists and socialists -- is to create chaos."
I have always believed Obama's real goal - the objective he has in common with all true leftists and socialists - is to create chaos. As a former leftist, I understand the paradigm. It's classic Cloward-Pivens [sic] strategy. Obama seeks "to heighten the contradictions of capitalism," as they say. He does a lot of crazy things to further that objective - to prove, if you will, that America is incapable of self-government, that smart people like him and Michelle are needed to guide our every move.
Maybe he wants to create civil strife. Maybe he wants to foment armed rebellion. Maybe he realizes that would provide him cover to take sweeping and repressive actions that effectively subvert the Constitution.
In Farah's disillusioned reality, Obama is planning to end private firearm ownership while acting as the driving force behind gun sales. As Farah puts it, "There's a lot of irony here to digest."