Despite having no apparent understanding of Supreme Court precedent, Fox News host Bill O'Reilly still managed to accuse Supreme Court Justice Sonia Sotomayor of being wrong about civil rights law.
On April 22, the conservative justices of the Supreme Court effectively overruled an important strand of equal protection jurisprudence in Schuette v. BAMN, upholding a voter-approved state constitutional amendment that banned the consideration of race in admissions at Michigan's public universities. Right-wing media were enthusiastically supportive of the decision as they simultaneously insulted the intelligence of Sotomayor, and O'Reilly was no exception.
On the April 24 edition of The O'Reilly Factor, O'Reilly dedicated his "Talking Points Memo" segment to praising the Court's decision in Schuette. O'Reilly's misunderstanding of that decision, as well the Court's prior case law, became immediately apparent when he erroneously claimed affirmative action policies violate the equal protection clause of the 14th Amendment because "if an individual American gets a preference, then he or she is not being treated equally with everyone else."
O'Reilly went on to argue that Sotomayor, who wrote a powerful dissent in Schuette, "is clearly wrong, constitutionally speaking":
National Review Online is marking the 50th anniversary of the Civil Rights Act by calling on Congress to abolish its protections against racial discrimination.
On April 10, President Obama spoke at the Lyndon B. Johnson Presidential Library to honor the former president's work to pass and sign the Civil Rights Act of 1964, legislation that Obama explained was "as fundamental to our conception of ourselves and our democracy as the Constitution and the Bill of Rights." He added, "that's why I'm standing here today -- because of those efforts, because of that legacy," before warning that "history travels not only forwards; history can travel backwards, history can travel sideways. And securing the gains this country has made requires the vigilance of its citizens."
Instead of joining the president and the rest of America in celebrating this historic law that sought to push back against institutional discrimination and guard against future equal protection violations, an April 15 NRO column by Roger Clegg, Hans von Spakovsky, and Elizabeth Slattery called for Congress to gut key provisions of the Civil Rights Act, as well as the Voting Rights Act of 1965. Their proposal is rooted in the fact that these laws -- in recognition of the fact that racial discrimination in this country has been practiced against those who are not white for centuries -- are explicitly race-conscious and have "been expanded, however, through agency interpretation and activist court rulings to include 'disparate impact.'"
Rather than embrace decades of federal law, these NRO contributors instead prefer an ahistorical and so-called colorblind approach, where "provisions that might be read to authorize preferences or discrimination are hereby repealed or amended to authorize only consideration of factors other than race, color, ethnicity, or national origin." From the authors' opposition to fifty years of civil rights precedent on behalf of historical victims of racial discrimination:
The federal government wittingly and unwittingly endorses a great deal of racial discrimination in America. A 2011 report by the Congressional Research Service catalogued literally hundreds of government-wide and agency-specific set-aside and preference programs and grants throughout the entire executive branch that amount to some form of racial discrimination.
The "disparate impact" approach to civil-rights enforcement results in race-based preferential treatment -- often intentionally so. Eliminating such claims is therefore another way to help curb the use of racial and ethnic preferences.
In brief, an action that results in racially disproportionate results is considered to have an illegal disparate impact, even if the action is neutral on its face, in its intent, and in its application. This is not racial discrimination by any reasonable definition, and it forces employers, landlords, schools, and others either to discard legitimate criteria and selection procedures (for example, a physical or written test for firefighters or police officers) or to avoid racial disproportions by hiring, leasing, or disciplining (or designing tests and other selection criteria) with an eye to skin color, or both. The Obama administration loves this approach, alas.
Right-wing media champions of voter purges have been quiet in response to a federal appeals court's decision that Florida officials' attempts to remove noncitizens from voter rolls clearly violated federal law, which protects citizens from these overbroad and error-riden challenges.
Shortly before the 2012 election, Florida Governor Rick Scott (R) and his Secretary of State Kenneth Detzner (R) undertook an effort to purportedly purge the state's voter rolls of noncitizens. The Department of Justice challenged the purge in court, arguing that Florida had violated federal law that prohibits states from booting voters off the rolls within 90 days of a federal election. This law is in place to prevent depriving citizens of the vote because of faulty database checks, performed without enough time to correct the state's errors.
At the time, right-wing media outlets like The Wall Street Journal and National Review Online were overwhelmingly supportive of Governor Scott and his attempts to block people from voting. WSJ's senior editorial writer Jason Riley dismissed the DOJ's challenge, since "[t]he Obama Administration sees racial animus and voter-suppression conspiracies in any Republican-led effort to improve ballot integrity." NRO contributor Hans von Spakovsky also dedicated numerous posts to the issue, calling the DOJ's lawsuit "spurious," and evidence of "politics and ideology driving the legal decision-making" at the agency "as opposed to nonpartisan, objective analysis of the facts and the law."
Von Spakovsky had even more to say on the subject. In a different post about the case in 2012, he complained about the DOJ's "lawlessness" in its attempts to restore the voting rights of affected citizens in Florida:
Time and again, the Holder Justice Department has exhibited politically driven law enforcement. But its latest instance of lawlessness is absolutely brazen.
This goes far beyond Holder's previous actions, such as belittling claims of voter fraud and trying to stop voter ID and other reform measures intended to improve the integrity of the election process. This letter would directly abet vote thieves in a key state as Holder's boss seeks reelection [in 2012].
After the conservative justices gutted the Voting Rights Act in Shelby County v. Holder, right-wing media complained that criticisms of the legal challenge were overblown because other provisions of the VRA remain intact to fight voter suppression. But now some of those same right-wing media figures have begun to flip-flop on that position, arguing that another crucial component of the VRA is unconstitutional as well.
In its continued opposition to the Voting Rights Act (VRA) and a proposed amendment to this historic law, The Wall Street Journal published a misleading op-ed by Hans von Spakovsky, an unreliable contributor to the National Review Online.
The op-ed of von Spakovsky, a right-wing activist who has called the "modern 'civil rights' movement" indistinguishable from "discriminators and segregationists of prior generations" and whose attempts to fearmonger about "virtually non-existent" voter fraud have been repeatedly discredited, followed a WSJ editorial that compared the bipartisan attempts of Congress to update the VRA with that of "Jim Crow era Southerners."
Although this new effort to strengthen the VRA through the Voting Rights Amendment Act of 2014 has prominent Republican support, von Spakovsky claimed "[t]his bill really isn't about the [Supreme Court's recent Shelby County v. Holder] decision. It is about having the federal government manipulate election rules to propagate racial gerrymandering and guarantee success for Democratic candidates." From the WSJ op-ed, which defended the conservative justices' gutting of the VRA in Shelby County and smeared the subsequent bipartisan efforts to repair the damage:
Before Shelby County, Section 5 of the Voting Rights Act required certain states to get "preclearance" from the federal government before making any voting changes. But the Supreme Court ruled that the formula to determine which jurisdictions were covered was unconstitutional because it was based on 40-year-old turnout data that did not reflect contemporary conditions. Census Bureau data show that black-voter turnout is on a par with or exceeds that of white voters in many of the formerly covered states and is higher than the rest of the country. We simply don't need Section 5 anymore.
In Shelby County, a radical break from precedent that has been described by experts as "on a par with the Court's odious Dred Scott and Plessy decisions and other utterly lamentable expressions of judicial indifference to the ugly realities of racial life in America," the bitterly divided Supreme Court struck at the heart of the VRA's efficacy by dismantling its "preclearance" process.
Even as the conservatives did so, however, Chief Justice John Roberts explicitly told Congress to fix this formula that requires covered jurisdictions with a history of racial discrimination to submit election changes for federal review before implementation. Contrary to von Spakovsky's strange assertion that "this bill really isn't about" Shelby County and is "an attempt to circumvent" the decision, this new bipartisan legislation is actually a direct response to Roberts' invitation to Congress to "draft another formula based on current conditions."
Admittedly, this new formula is more complex than von Spakovsky's preferred method of determining voter suppression by "turnout data," a confusion between correlation and causation that has been described as a rudimentary failure of "Statistics 101." Rather, Section 5 of the VRA imposes the preclearance process on jurisdictions with an incorrigible track record of suppressing votes based on race, and the formula to determine this discrimination has been changed in the new legislation to incorporate a comprehensive and rolling 15-year record.
The claim of the op-ed that the old formula led to "unwarranted objections" on the part of the Department of Justice toward alleged voter suppression is also inaccurate; this preclearance mechanism has been extremely effective at stopping racially discriminatory election changes. In fact, the two cases that von Spakovsky highlights both involved Section 5 successes.
A federal agency's new preliminary report debunks the popular right-wing myth that private contracts that require people to take their complaints to an arbitrator are an effective alternative to class-action lawsuits.
Right-wing media outlets have consistently supported what are known as "forced-arbitration clauses" -- contractual provisions that often force consumers to give up their right to join a class action lawsuit and instead require them to go before an arbitrator individually, even if the amount in dispute is so small that it wouldn't make sense to pursue outside of a collective, mass action. Support on the right has grown since 2011, when the conservative majority of the Supreme Court held that such forced arbitration clauses trump consumer protection laws.
The right-wing media has relied in part on that Supreme Court ruling to dismiss criticism of forced arbitration as "unfair." For example, Ammon Simon at National Review Online has called forced arbitration clauses "especially generous towards consumers," and called class-action lawsuits "a cash cow for trial lawyers ... [that] don't usually help consumers, who are systemically under-compensated in such cases." Simon continued:
While trial lawyers would benefit from strictly limiting arbitration, consumers would suffer. ... [C]lass action lawsuits last an average of 3 years from start to completion, while arbitrations last slightly under 7 months. What's more, while consumer claims go on the backburner to trial attorney fees in class action litigation, consumers can actually be successful in arbitration, and prefer arbitration to the alternatives.
Hans von Spakovsky, also an NRO contributor and a legal fellow at the ultra-conservative Heritage Foundation, argued that forced arbitration clauses are "an efficient and fair alternative to our costly and burdensome litigation system":
Given the arbitration process's many benefits over the only real alternative -- expensive and time-consuming litigation that in many cases does more to line trial lawyers' pockets than redress consumers' injuries -- any action to curtail arbitration would only injure consumers and workers.
Simon and von Spakovsky agree that arbitration clauses provide consumers with a better chance of fair compensation than do class-action lawsuits.
National Review Online is pointing to instances of trouble at Texas polling places as proof that the state's overwhelmingly stringent voter ID law is "a good thing."
NRO contributors Roger Clegg and Hans von Spakovsky argued that because four prominent, white Texans were eventually able to vote after experiencing problems with their identification, complaints about the voter ID law are "hysterical." They went on to claim that a New York Times article that characterized the new ID law as "mak[ing] a dent at the polls" is overblown.
From Clegg and von Spakovsky's November 9 post:
A New York Times headline Thursday declared: "Texas' Stringent Voter ID Law Makes a Dent at the Polls." A careful reading of the article will leave many readers scratching their heads about that title.
The article begins by noting that three prominent Texans -- state judge Sandra Watts, state senator Wendy Davis, and state attorney general Greg Abbott -- all had photo IDs that did not quite match their names on official voter rolls, and so all had to sign affidavits before they could vote. But ... they all could and did vote.
Jim Wright -- another Texan, whom the Times helpfully identifies as a former U.S. Speaker of the House -- had an expired driver's license, and so he had to produce a birth certificate. But ... he also voted.
So, when all is said and done, where's the "dent"?
It's worth noting that these four voter-ID "victims" are hardly the poor, minority voters that the Left asserts are targeted by these laws. To the contrary, all four are white and quite prominent, one a Republican. They not only got to vote, they were alerted to discrepancies in their voter registrations that they can now get corrected.
This is the new Jim Crow?
The post went on to conclude that "there was really no problem after all" and that "there apparently are not large numbers of Texas voters who lack identification."
Evidently, the fact that one in 10 registered voters in Texas lacks valid identification is of no great concern to NRO. Although Texas will provide "election identification certificates" to voters free of charge, voters must provide proof of citizenship and identity in order to get one. The documentation required to obtain a certificate -- such as a U.S. passport -- is generally not free.
The National Review Online is trying to push back on the mea culpa of a judge who now thinks strict voter ID does in fact impermissibly discriminate, maintaining its long-standing position as a supporter of election changes that have been widely denounced as blatant forms of voter suppression.
In 2007, well-known and respected conservative Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit upheld a voter ID law in Indiana that was the first in a wave of increasingly stricter restrictions on the right to vote passed by Republican-controlled legislatures. Affirmed by a splintered Supreme Court, as the sole high-profile legal decision on the sort of unnecessary and redundant voter ID laws that are now widely promoted by the GOP, Crawford v. Marion County Elections Board has been incessantly trumpeted by right-wing media as the legal underpinning for their obsession with election changes that are documented to suppress the vote.
Now that Posner has bluntly admitted he was wrong and the evidence shows that strict voter ID is "now widely regarded as a means of voter suppression rather than fraud prevention," NRO is resorting to smearing the judge's integrity and intelligence.
Legal contributor Hans von Spakovsky, the repeatedly discredited champion of photo voter ID laws as the alleged "solution" to the virtually non-existent "problem" of in-person voter fraud, responded to the news of Posner's recent admission by claiming the judge had "been taken in" by the "Left's well-oiled propaganda machine." NRO's in-house legal expert, Ed Whelan, asserted that a switch in judgment by the judge was "weak" and praised a Washington Post columnist who attacked the judge as unethical for speaking publicly.
Von Spakovsky's attempt to rebut Posner's revelation by pointing to increased turnout in communities of color was a rehash of his continued failing of Statistics 101. As has been explained to von Spakovsky and others by statisticians, academics, and congressmen, just because more persons of color are voting now as the country grows more diverse doesn't mean that overly restrictive voting changes aren't suppressing the vote.
Not only is this confusing causation with correlation, but suppressing the vote also occurs when it becomes harder to do, not just when it is blocked entirely. The federal judge who blocked Texas' strict voter ID law because 600,000 to 800,000 citizens do not have easy access to the supporting documentation needed for the new identification requirements held that "a law that forces poorer citizens to choose between their wages and their franchise unquestionably denies or abridges their right to vote."
In an attempt to smear unrelated civil rights law by linking it to the tragic Navy Yard shootings, right-wing activist Hans von Spakovsky argued that background checks for arrests without convictions could stop gun violence.
Never one to miss an opportunity to shoehorn an attack on civil rights law into a different subject, widely discredited National Review contributor von Spakovsky used the disturbing mass murder committed by a veteran of color to criticize employment law that guards against unnecessary racial discrimination in hiring practices. From his recent op-ed in The Washington Times that claimed "Obama policy would have exempted the Navy Yard shooter from scrutiny":
But what if The Experts had actually turned up these criminal arrests for gun-related violence [in a background check] and refused to hire Alexis? If the company had done so, it might have violated the hiring policy the Obama administration is trying to force on private employers. It could have been accused of discrimination by the Equal Employment Opportunity Commission (EEOC), a federal agency controlled by Obama appointees.
In April 2012, the EEOC issued enforcement guidance severely restricting the use of criminal background checks by employers when hiring new employees. The EEOC claims that because blacks and Hispanics are arrested and convicted at higher rates than whites, the use of a criminal-background check will have a "disparate impact" on minorities and, therefore, violates Title VII of the Civil Rights Act of 1964.
Unfortunately, the terrible tragedy in the Navy Yard graphically illustrates why the Obama administration's push to force employers to stop using criminal background checks is not only legally wrong, but dangerous.
Rather, the EEOC is utilizing long-standing anti-discrimination law under Title VII of the Civil Rights Act that prohibits those employment or hiring policies that have an unjustified discriminatory effect on persons of color. Therefore, criminal background checks per se are perfectly acceptable if they are pertinent to the job at hand.
Recently, however, blanket employment screening has become so commonplace that it flags offenses that are not only minor, but also unnecessary for the occupation in question. Because the databases that background checks rely on have an alarmingly high number of false positives based on "incomplete or inaccurate information," and because communities of color disproportionately suffer from encounters with the criminal justice system, multiple reports indicate that this new trend is making the unemployment rate for persons of color worse.
National Review Online is calling fears about the effects of the government shutdown "hysterical," ignoring the uncertain future for both the Department of Justice and the federal court system if House Republicans refuse to fund federal obligations.
Right-wing media have repeatedly trivialized the impact of the shutdown since Congress failed to pass a resolution to continue government funding, referring to it as a mere "slimdown" and insisting that "no one is going to starve" even without essential government nutrition programs. NRO joined this chorus, calling the reaction to the shutdown "almost comical." From a September 30 column:
The hysterical fears about the effects of a government "shutdown" being voiced by many in Washington, such as Senator Tom Harkin (D., Iowa), who claims it is "as dangerous as the break-up of the Union before the Civil War," are almost comical.
The truth from the experience of prior shutdowns, applicable federal laws, Justice Department legal opinions, and Office of Management and Budget (OMB) directives, is that crucial government services and benefits would continue without interruption even if Congress fails to agree on a continuing resolution (CR) or President Obama vetoes it. That includes all services essential for national security and public safety -- such as the military and law enforcement -- as well as mandatory government payments such as Social Security and veterans' benefits.
In fact, as the Justice Department said in a legal opinion in 1995, "the federal government will not be truly 'shut down' ... because Congress has itself provided that some activities of Government should continue." Any claim that not passing a CR would result in a "shutting down" of the government "is an entirely inaccurate description," according to the Justice Department.
The "legal opinion" cited in the post is actually a memorandum opinion--a strictly advisory memo that was not legally binding, but offered legal guidance to the director of the Office of Management and Budget during the government shutdown in 1995. The memo provided only "advice regarding the permissible scope of government operations during a lapse in appropriations."
In a column on National Review Online's (NRO) The Corner, Fox News contributor and NRO columnist John Fund and Heritage Foundation senior legal fellow Hans von Spakovsky laid out what they considered "The Latest Evidence Of Voter Fraud." The evidence they offered, however, amounted to one county in Mississippi that was recently ordered to remove ineligible voters from its registration rolls, and a report released by the conservative Voter Integrity Project showing a statistically insignificant number of alleged voter fraud cases, neither of which showed any conclusive evidence or prosecution of voter fraud.
In a September 9 column, Fund and von Spakovsky wrote, "Obama-administration officials and their liberal camp-followers who routinely claim there is no reason to worry about election integrity because vote fraud is nonexistent suffered some embarrassing setbacks last week."
The first piece of evidence they offered was a lawsuit brought by the American Civil Rights Union (ACRU) -- a far right legal advocacy group whose senior fellow and policy expert once accused the NAACP's president of "treason" for denouncing voter ID laws, and who said it was racist to oppose those same laws -- against Walthall County, Mississippi in which the county was instructed to purge its voter rolls of felons, the deceased, and duplicate registrations. Fund and von Spakovsky made no claims of actual voter fraud in regards to that case, however, writing only that:
This is the first time in the 20 years that the NVRA has been in force that a conservative group has sued to enforce Section 8, while liberal advocacy groups have filed many cases to try to stop election officials from cleaning up their registration lists, a practice which they foolishly label "voter suppression."
An inflated voter registration roll by itself is not evidence of voter fraud, which the Brennan Center for Justice defined as "when individuals cast ballots despite knowing that they are ineligible to vote, in an attempt to defraud the election system." Instead, voter roll purges have repeatedly been used as a tool to disenfranchise minorities and students -- traditionally Democratic voting blocs.
The second piece of evidence Fund and von Spakovsky presented was a report released by the Voter Integrity Project of North Carolina (VIP-NC), a group with a history of false claims regarding voter fraud. VIP-NC released a report they obtained from the North Carolina Board of Elections which shows 475 cases in which the state had a "reasonable suspicion" that voter fraud occurred. Those cases were turned over to the appropriate district attorneys and Fund, von Spakovsky, and VIP-NC acknowledged that prosecutors chose not to bring charges in those cases. However, Fund and von Spakovsky attributed the lack of convictions to political fear, writing, "As VIP also points out, the report raises the important question of why local district attorneys in North Carolina have been 'so negligent in prosecuting' these referrals."
Fund and von Spakovsky used the VIP-NC report to advocate for strict voter ID laws and portrayed North Carolina as a hotbed of voter fraud (emphasis added):
The report shows that there were 475 cases of election fraud that the Board "believed merited a referral" to prosecutors between 2008 and 2012. The fraud included double voting, impersonation and registration fraud, and illegal voting by noncitizens and felons. Not all of this fraud would have been stopped by voter ID, but there are certainly people willing to engage in fraud and we need to take a comprehensive approach to protect the security of the voting and election process.
In fact, the strict voter ID laws they advocate might have prevented only one of the 475 alleged voter fraud cases referenced -- the single allegation of voter impersonation. According to the report, the majority of the 475 cases occurred during the 2008 general election, when over four million people voted. Yet conservatives in the state have used similar claims of voter fraud to pass what former Secretary of State Hillary Clinton called a "greatest hits of voter suppression."
According to Mother Jones, North Carolina's law "prohibits same-day registration, ends pre-registration for 16- and 17-year-olds, eliminates one week of early voting, prevents counties from extending voting hours due to long lines (often caused by cuts in early voting) or other extraordinary circumstances, scratches college ID cards and other forms of identification from the very short list of acceptable state-issued photo IDs, and outlaws certain types of voter registration drives." From Mother Jones:
The bill's new provisions make it so that, with very few exceptions, a voter needs a valid in-state DMV-issued driver's license or non-driver's ID card, a US Military ID card, a veteran's ID card or a US passport. According to an April 2013 analysis (pdf) of state Board of Elections data by Democracy North Carolina, 34 percent of the state's registered black voters, the overwhelming majority of whom vote Democrat, do not have state-issued photo ID. The same study found that 55 percent of North Carolina Democrats don't have state-issued photo ID. Only 21 percent of Republicans have the same problem.
Instead of protecting elections from fraudulent voting, strict voter ID laws are instead being used to disenfranchise minorities and low-income individuals in an effort to help Republicans win elections.
Fund and von Spakovsky both have a history of spreading misinformation about voter fraud, culminating in a book they co-authored that is rife with falsehoods. NRO's continued advocacy of strict voter ID laws is not surprising given its sordid history regarding civil rights.
Fox News hosted discredited right-wing activist Hans von Spakovsky to misleadingly claim that a voter ID law in Texas would make voting easier, despite a federal court's findings that the law was racially discriminatory and placed a high burden on low-income Americans.
The Department of Justice (DOJ) announced August 22 that it will sue to block Texas' attempt to reinstate a voter ID law that was previously voided on the grounds that it was racially discriminatory, explaining that it violates the Constitution and "was adopted with the purpose, and will have the result, of denying or abridging the right to vote on account of race, color, or membership in a language minority group."
Fox & Friends guest co-host Anna Kooiman interviewed von Spakovsky on August 30 to attack the DOJ's decision, during which von Spakovsky claimed that high minority voter turnout in the 2012 election proved that voter ID laws did not suppress the vote and that the DOJ "lost" when it attempted to fight a voter ID law in South Carolina. Kooiman pointed to von Spakovksy's assertion that voter ID cards actually "speeds up" the voting process, which he claimed is "exactly right."
Kooiman then implied that voter ID laws are not racially discriminatory in Texas because more white individuals in total are in poverty than Hispanics and blacks -- ignoring that fact that whites make up 80 percent of Texas' population, and so of course have more total individuals in poverty.
Von Spakovsky is a right-wing voter ID activist who has been exposed as resorting to shady tactics in his quest to limit voter participation, and his research on this topic has been thoroughly discredited. As Justin Levitt, previously of the Brennan Center, explained, von Spakovsky's misleading claim that high voter turnout means voter ID laws don't suppress voters is a "correlation-causation fallacy, and anybody who's had statistics for a week can talk to you about it." And von Spakovsky's claim that South Carolina offered a good model for Texas to fight the DOJ's challenge hid the fact that the court explicitly agreed with the DOJ's concerns that the South Carolina law could be racially discriminatory as enacted, and warned it would be blocked in the future if that occurred.
Furthermore, his claim that the use of state-issued identification cards to vote "speeds up" the process ignores the fact that this law disenfranchises American citizens. As MSNBC.com reporter Zachary Roth noted, according to Texas's data, "anywhere from 605,000 to 795,000 registered voters--between 4% and 6% of all registered voters in the state--lack the required form of ID."
And acquiring the qualifying identification in order to cast a regular ballot comes with a high cost, placing a burden on low-income voters -- a burden which falls "disproportionately" on African Americans and Hispanics living in Texas. The federal court that struck down Texas' law in 2012 found the "evidence conclusively shows that the implicit costs of obtaining [a] qualifying ID will fall most heavily on the poor and that a disproportionately high percentage of African Americans and Hispanics in Texas live in poverty."
As The Nation's Ari Berman noted, according to the DOJ's 2012 objection to the Texas law, "Hispanic voters [were] between 46.5 percent to 120 percent more likely than whites to not have the new voter ID" in Texas.
Right-wing media repeatedly argue that increased turnout of voters of color demonstrates that strict voter ID requirements do not cause voter suppression, a relationship that experts note is a basic confusion of correlation with causation.
Earlier this summer, the Supreme Court struck down a key provision of the Voting Rights Act that helped force states and localities with a history of discrimination to have the Justice Department preclear proposed changes to voting regulations. Representative John Lewis (D-GA), a civil rights icon, described the decision as "a dagger in the heart of the Voting Rights Act of 1965."
Today marks the 48th anniversary of President Lyndon Johnson signing that act into law.
Conservatives are apt to defend gutting the law by arguing that our country has made significant strides in racial equality over the past 48 years. That being the case, one would hope that segregationists' arguments against the Voting Rights Act of 1965 would have been relegated to the dust bin of history, rather than in use by conservatives today to defend discriminatory policies.
Unfortunately, much of the rhetoric used to attack the law and defend the Supreme Court's decision remains rooted in the segregationist defenses of Jim Crow. Regardless of the motives, the use of similar rhetoric shows a lack of historic perspective.
Keith Finley, a professor of history at Southern Louisiana University and author of Delaying the Dream: Southern Senators and the Fight Against Civil Right, has detailed many of the arguments made by Senators from the old South as they fought the Voting Rights Act of 1965 on the floor of the chamber.
One such tactic was to accuse civil rights activists of aggravating racial tensions. According to Finley, Virginia Senator Henry Byrd, an opponent of the 1965 Voting Rights Act, claimed Lyndon Johnson would only increase racial tensions by "inflaming so-called civil rights issues" if he pursued the legislation.
Forty-eight years later, that defense remains a go-to of civil rights antagonists.
Two weeks ago, Fox host Bill O'Reilly told his the audience that civil rights leaders want "to divide the country along racial lines because that's good for business." While O'Reilly was specifically referring to reaction to the George Zimmerman verdict among civil rights leaders, similar sentiment has been expressed throughout the right in defense of the court's decision to gut the Voting Rights Act.
When Attorney General Eric Holder announced that the Justice Department would use available tools to continue enforcing the Voting Rights Act, Fox's Eric Bolling accused the nation's first black attorney general of "thumbing his nose at the Supreme Court so he can widen the race divide in America." Nina Easton, a Fortune columnist, said on Fox's Special Report that Holder's move was part of an "ongoing electoral strategy by this administration to gin up the black and Latino vote."
The fight to defeat the Voting Rights Act in 1965 also hinged on pivoting away from the central issue of voting rights to the canard of defending the process. According to Finley, Louisiana Senator Allen Ellender claimed race had nothing to do with his opposition to the Voting Rights Act. Instead, Ellender argued that he was simply maintaining the integrity of the electoral process: "the task of making it clear that one is not against voting rights, but only in favor of maintaining voting qualifications, is not always an easy one."
The same tactic is alive and well nearly five decades later and is made frequently by those advocating for strict voter ID laws, which experts say will disenfranchise minority voters.
When Mother Jones' David Corn published the internal deliberations of Groundswell, a right-wing listserve, one of the debates he highlighted centered on the issue of voter ID laws:
A high-priority cause for Groundswellers is voter identification efforts--what progressives would call voter suppression--and when Groundswellers developed a thread on their Google group page exploring the best way to pitch the right's voter identification endeavors as a major voting rights case was pending in the Supreme Court, the coalition's friendly journalists joined right in. Dan Bongino, the ex-Secret Service agent and 2012 Senate candidate, kicked off the discussion: "We need to reframe this. This narrative of the Left has already taken hold in MD. The words 'Voter ID' are already lost & equated with racism. Maybe a 'free and fair elections initiative' with a heavy emphasis on avoiding ANY voter disenfranchisement combined with an identification requirement which includes a broader range of documents."
In response, Tapscott suggested, "How about 'Election Integrity'?" And Gaffney weighed in: "I like it." Fitton noted that Judicial Watch had an "Election Integrity Project." Boyle proposed, "Fair and equal elections," explaining, "Terms 'fair' and 'equal' connect with most people. It's why the left uses them." Then came True the Vote's Anita MonCrief: "We do a lot under the Election Integrity Banner. Does not resonate with the people. Voter Rights may be better. We really have been trying to get the messaging right."
Hans von Spakovsky, a fellow at the Heritage Foundation and leader in the conservative movement's war on voting, wrote in USA Today that voter ID laws were "to ensure the integrity of our election process."
Rush Limbaugh told his audience that Democrats only oppose voter ID laws "because that would have a very negative impact on cheating."
Finley points to Herman Talmadge, a Senator from Georgia, who claimed the 1965 Voting Right Act was unnecessary because the "[right to vote] is probably the most protected right we have." Echoes of Talmadge could be heard in the aftermath of the Supreme Court's decision this summer. The Wall Street Journal argued the Voting Right Act was "no longer necessary" due to "American racial progress."
Speaking about the Supreme Court's decision on Fox, network contributor Andrew Napolitano cheered the court's ruling, claiming the section stuck down "worked so well" that "the procedure is not necessary anymore."
Von Spakovsky claimed in 2011 there was "a complete lack of evidence that the type of systematic discrimination that led to [the 1965 Voting Rights Act's] initial passage still exists."
This 48th anniversary of the Voting Rights Act provides conservative media figures an opportunity to revisit the historical context of the language they use to confront issues of races, and begin to engage in a real conversation.
Right-wing media have a long history of leveling charges of anti-white bias at President Obama's nominees and appointees of color, smears that have now formed the basis of Republican attacks on Labor Secretary nominee Thomas E. Perez.