Hans von Spakovsky

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  • Will The Media Report On The NRA's Second Consecutive High-Profile Nomination Defeat?

    NRA Failed In Fight Against Attorney General Nominee Loretta Lynch

    Blog ››› ››› TIMOTHY JOHNSON

    Following Loretta Lynch's historic confirmation as U.S. Attorney General, media have been silent about the implications for the National Rifle Association losing in a second consecutive high-profile nomination fight.

    On April 23, Lynch was confirmed in the U.S. Senate by a vote of 56 to 43 following a protracted effort by many Republicans in the Senate to stall or sink her confirmation. She will be the first African-American female attorney general in United States history.

    A Media Matters review of major U.S. newspapers and television transcripts in Nexis and internal video archives following her confirmation did not identify any instance where the NRA was discussed in relation to Lynch.

    But Lynch's confirmation provides more evidence that the NRA does not win every time. According to a tired -- and incorrect -- media narrative, the NRA is always successful in its federal lobbying efforts and also has the ability to punish legislators who refuse to support the gun group's agenda. Research on election outcomes has long-indicated, however, that the NRA in fact has little effect on politicians' Election Day results through endorsements or campaign spending.

    Now the failure of the NRA to stop the confirmation of two high-profile Obama nominees -- Surgeon General Vivek Murthy in December 2014 and now Lynch -- offers evidence that the NRA also does not always get its way in Congress

  • Right-Wing Media Baselessly Allege DOJ Lawyers Lied To Judge In Immigration Case

    Blog ››› ››› MEAGAN HATCHER-MAYS

    Right-wing media are baselessly accusing the Department of Justice of lying to the judge in Texas overseeing the legal challenge against President Obama's immigration actions. They are claiming that a DOJ attorney made false statements in court when she indicated that applications for two new deferred-action programs were not being processed. But these right-wing media figures are wrong. These two programs are not proceeding. The federal government has renewed 100,000 applications for deferred action for immigrants eligible under a 2012 program -- a third category of applicants who are not covered in the case.

    Republican officials from 26 states sued the Obama administration after the president signed a series of executive actions on immigration in November. In part, these executive actions temporarily defer deportations for two new categories of eligible undocumented immigrants, such as parents of citizens. These acts of prosecutorial discretion also immediately changed the president's original 2012 Deferred Action for Childhood Arrivals (DACA) program by extending the deferral period from two years to three, in order to bring it in line with the expiration dates for the new programs. Before the federal government could start accepting applications from immigrants eligible for the two new programs -- a modified version of DACA and the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) -- a district court judge in Texas issued an injunction temporarily blocking from going into effect. The third category, under the 2012 guidelines, was not enjoined.

    In accompanying court proceedings, under questioning from the judge, the DOJ confirmed that applicants for the two new categories were not yet being processed, as the judge instructed.

    Right-wing media have attacked Obama's immigration action since it was announced, and have commended the Texas judge for putting it on hold, even though the legal basis for the injunction is quite shaky. Now conservative media outlets are also claiming that the administration's lawyers lied because the Department of Homeland Security approved or renewed 100,000 applications from the original 2012 DACA program between November 2014 and February 2015 and applied the deferral for three years instead of two -- even though that change was required to be immediately applied.

  • New GOP Hearing Will Feature Notorious Right-Wing Media Misinformers

    Republicans Turn To Kris Kobach And Hans Von Spakovsky To Investigate Immigration And Voter Fraud

    Blog ››› ››› BRIAN POWELL

    An upcoming House Oversight Committee hearing features two conservative media darlings infamous for their anti-immigrant rhetoric and peddling misinformation about voter fraud and election law.

    Republicans on the House Oversight Committee will hold a hearing February 12 titled, "The President's Executive Actions on Immigration and Their Impact on Federal and State Elections." The hearing advisory, obtained by Media Matters, promises an examination of the president's executive actions on immigration and how they may affect "federal and state elections, including the issuance of Social Security Numbers and drivers' licenses to individuals covered by the action."

    Two witnesses who will be featured at the hearing, according to the advisory, are well known for spreading misinformation in conservative media circles: Kris Kobach and Hans von Spakovsky.

    Kansas Secretary of State Kris Kobach is a repeat guest on Fox News and is often touted by right-wing pundits who support his extreme positions on immigration. He first elevated his profile by pushing a bill that would have directed police officers in Arizona to check the immigration status of those stopped for violations of city and county ordinances, civil traffic violations, and other non-crimes, and would have allowed police to consider race as a factor. Kobach was also instrumental in pushing a Kansas voter registration law that has disenfranchised thousands of American citizens. Appearing on Fox & Friends in March 2014, Kobach tried to cast doubt on the president's immigration enforcement, accusing the administration of "cooking the books" on deportation numbers.

    Hans von Spakovsky has been featured on Fox News and on National Review Online for years, demonstrating an unending willingness to distort the truth in the service of restrictive and discriminatory voter ID laws. Spakovsky has repeatedly overstated the prevalence of in-person voter fraud and continues to push for voter ID laws that disproportionately affect minority communities and suppress legal voters. At National Review, Spakovsky characterized the modern civil rights movement as being "indistinguishable" from "segregationists."

    This hearing comes on the heels of the Senate's recent hearing on Loretta Lynch, a highly regarded nominee for attorney general, which featured a witness list peppered with habitual conservative media misinformers

    UPDATE: On the eve of the hearing, prosecutors in Kansas are questioning Kobach's voter fraud claims. The Lawrence Journal-World reported that Kobach has asked lawmakers to grant him the "the power to press voter fraud charges because he says prosecutors do not pursue cases he refers." 

    But federal prosecutors in Kansas say Kobach hasn't referred any cases to them, and county prosecutors report that the cases referred to them did not justify prosecution.

  • The Loretta Lynch Hearing: A Showcase Of Right-Wing Media Regulars


    The witness list for the Senate Judiciary Committee's hearing on Loretta Lynch, the highly regarded nominee for attorney general, indicates the process will be a forum for right-wing media favorites and myths but will have little to do with her qualifications.

    Lynch, the U.S. attorney for the Eastern District of New York, has long been praised across the political spectrum as a model federal prosecutor. Lynch has been confirmed twice as a U.S. attorney -- including by some of the same Republican senators now in control of the Judiciary Committee -- and news of her nomination in November brought a new round of support, including from conservative law enforcement sources.

    Current New York Police Department Commissioner William Bratton called Lynch "a remarkable prosecutor with a clear sense of justice without fear or favor." Former FBI director Louis Freeh wrote in a letter to Judiciary Committee leadership that he couldn't think of "a more qualified nominee" and was "happy to give Ms. Lynch my highest personal and professional recommendation." Freeh also wrote that he had spoken with "several of my former judicial colleagues who echo this support, and note that Ms. Lynch has gained a terrific reputation for effectively, fairly and independently enforcing the law." Former New York City Mayor Rudy Giuliani, who worked with Lynch on an infamous police brutality case, has said "if I were in the Senate, I would confirm her."

    Fringe right-wing media outlets and figures initially ignored this broad support and attacked Lynch anyway. The effort was spectacularly unsuccessful, as they mixed up the nominee with an entirely different Loretta Lynch and then claimed that her membership in Delta Sigma Theta, one of the country's leading African-American sororities, was "controversial."

    Leading Fox News figures were better informed about the New York nominee, most notably News Corp. chairman Rupert Murdoch, who immediately noted Lynch had a "reputation for fairness and strict legality." In an O'Reilly Factor segment with Megyn Kelly on November 10, Bill O'Reilly said he was "heartened" she would be the new attorney general. In response, Kelly praised Lynch:

    KELLY: I have to say that I think this is the person who should be the most acceptable to the right wing or the Republicans in this country of anybody who President Obama was considering. She is a straight shooter. First of all, she would be the first black female attorney general, right? I mean, that in and of itself is a pretty amazing accomplishment. Went to Harvard undergrad, went to Harvard Law School. She has no close ties to the White House. She is not some firm ideologue or partisan. She has prosecuted Democrats and Republicans. She's been a hero on gang crime, on terrorism.

    Republican senators have been similarly honest about Lynch's record, admitting that she "seems to be a solid choice" and will instead use her hearing as a forum for grievances they have with the administration and outgoing Attorney General Eric Holder. The new chairman of the committee, Sen. Chuck Grassley (R-IA), told Politico: "All I can tell you is that immigration is going to be a big part of it. ... Not because of her views on immigration, but of the president's action on immigration and the extent of what she feels he's acted in a legal way."

    Unfortunately, a review of the newly released witness list reveals that the Republican choices for this "proxy war of sorts" rely heavily on right-wing media favorites who frequently spread debunked smears and myths:

  • Right-Wing Media Pretend Well-Qualified Attorney General Nominee Is A Partisan "Radical"

    Blog ››› ››› MEAGAN HATCHER-MAYS

    Right-wing media outlets are criticizing Loretta Lynch, the highly-qualified attorney that President Obama has nominated to replace outgoing Attorney General Eric Holder, by attacking her support of voting rights litigation and claiming her membership in one of the country's leading African-American sororities is "controversial."

    On September 25, Holder announced that he would step down as attorney general, but would stay in office until his replacement was confirmed. The president nominated Lynch to the post on November 8, citing her extensive legal experience and stating that "it's pretty hard to be more qualified for this job than Loretta." Even conservative figures appear to agree, with Republican Senator Lindsay Graham calling her a "solid choice." News Corp Chairman Rupert Murdoch echoed Graham's sentiment, noting that the nominee has a "reputation for fairness and strict legality." Lynch is a Harvard Law graduate, has decades of experience as a successful and widely praised federal prosecutor, and has served as U.S. attorney for the Eastern District of New York since 2010, when she was confirmed by unanimous consent.

    But after Obama's announcement, conservative media ignored her qualifications and began to attack Lynch anyway, falsely accusing her of partisanship. Breitbart.com was so eager to find fault in her nomination that it went after the wrong Lynch, erroneously claiming that she was involved in former President Bill Clinton's defense during the Whitewater investigation in 1992. In reality, it was a different attorney named Loretta Lynch who defended the president during the probe that cleared the Clintons; the current nominee Lynch was serving in the U.S. attorney's office at the time.

    The attacks have continued even after Breitbart.com issued a correction to its story. On the November 11 edition of Lou Dobbs Tonight, host Lou Dobbs claimed Lynch's membership in one of the country's leading African-American sororities was "controversial" because Holder's wife, a classmate of Lynch's, also pledged Delta Sigma Theta.

  • Voter Disenfranchisement That Right-Wing Media Said Wouldn't Happen Is Definitely Happening

    Blog ››› ››› MEAGAN HATCHER-MAYS

    This Election Day, a number of states are implementing strict new voter ID laws and registration policies in a high-turnout election for the first time. These measures have been found to have the potential to disenfranchise thousands of voters -- typically people of color, young voters, and women -- who are unable to obtain select forms of ID or are caught in flawed voter purges, but right-wing media figures frequently argue that these laws do not suppress the vote.

    The right-wing media have repeatedly claimed that these laws are not racially discriminatory, do not affect minority voter turnout, and maintain the integrity of the election system. Fox News has referred to recent court decisions striking down voter ID laws as illegal or unconstitutional "setbacks" and questioned the timing of the courts' intervention on behalf of the right to vote. Right-wing media have also railed against attempts to stop voter purges, despite the fact that reports have discovered "Hispanic, Democratic and independent-minded voters are the most likely to be targeted" in these methodologically unsound attempts to find ineligible voters.

    Repeatedly discredited National Review Online contributor Hans von Spakovsky has been particularly vocal in his support of these unnecessary and redundant election measures, dismissing concerns of "chaos at the polls" even though hundreds of thousands of voters are at risk. On the November 2 edition of Fox News' America's News HQ, von Spakovsky again promoted strict voter ID laws and registration checks and claimed that "this idea" that voter ID laws can "suppress minority voters, we know is not true":

    But qualified voters are already being turned away from the polls or purged from the rolls in states that have enacted these new Republican-pushed measures, despite right-wing media's promises that such laws would have no negative effect.

    1. Voter ID Blocks Eligible Voters
    2. Voter "Crosschecks" Purge Eligible Voters
    3. Provisional Ballots Are Not Preventing Disenfranchisement

  • National Review Online Now Totally Confused In Its All-Out Push For Strict Voter ID

    Blog ››› ››› MEAGAN HATCHER-MAYS

    In its most recent effort to defend discriminatory and unnecessary strict voter ID laws, National Review Online has resorted in the past week to recycling debunked myths about this type of voter suppression, most recently linking voter ID to noncitizen voting, which is an unrelated issue.

    With the midterm elections coming up, right-wing media are aggressively lying about voter ID laws and voter fraud, and NRO is no exception. NRO has previously praised Texas' strict voter ID law -- which has been found to be racially discriminatory in both intent and effect -- called for the remaining protections available under the Voting Rights Act to be repealed or limited, and dismissed concerns over Wisconsin's voter ID law, which has the potential to disenfranchise hundreds of thousands of voters when it goes into effect.

    In just the past week, NRO writers have doubled down on nearly all of these poorly supported right-wing positions. National Review editor Rich Lowry defended Texas's strict voter ID law -- which a federal judge determined to be an "unconstitutional poll tax" -- by arguing that the disenfranchisement these laws cause is justified by the potential for in-person voter impersonation, even though that kind of fraud is virtually non-existent. Lowry also incorrectly claimed that strict voter ID laws require the same level of identification needed to buy a gun. NRO contributor Hans von Spakovsky wrote in The Wall Street Journal that "moves to shore up election integrity have been resisted by progressives" who are challenging the legality of voter ID laws "without evidence that such efforts suppress minority turnout" -- despite the fact that a recent report found a decrease in voter of color turnout in two states was attributable to strict voter ID. For good measure, von Spakovsky, a discredited proponent of restrictive election rules, also conflated other forms of voter fraud with in-person impersonation, the only type of fraud voter ID prevents.

    The dissembling continued with another NRO contributor, Mona Charen, offering more of the same in a post titled "The Voter-ID Myth Crashes." Charen seized on a contested study of the rate of noncitizen voting to claim that "[b]eing asked to show a photo ID can diminish several kinds of fraud, including impersonation, duplicate registrations in different jurisdictions, and voting by ineligible people including felons and noncitizens," but buried the fact that "[v]oter-ID laws will not prevent noncitizens from voting." 

  • NRO Misrepresents WI Voter ID Law That Could Disenfranchise Hundreds Of Thousands

    Blog ››› ››› MEAGAN HATCHER-MAYS

    National Review Online misrepresented a recent court decision that could allow an unneccessarily restrictive voter identification law to be implemented in Wisconsin only weeks before the November election.

    On September 12, the Seventh Circuit Court of Appeals lifted an injunction that a district court judge had previously granted to prevent Wisconsin's strict voter ID law from going into effect due to concerns that its disproportionate effect on communities of color violated the Voting Rights Act. After the three judge panel of the Seventh Circuit issued its order, Wisconsin officials announced that they would move forward with implementing the law despite the fact that election officials are not trained in the new photo ID requirements and absentee ballots have already been turned in. This last minute voting change has the potential to keep hundreds of thousands of Wisconsin voters who lack photo ID from participating in the November election.

    Right-wing media quickly downplayed the significance the law might have on the election. On the September 17 edition of Special Report with Bret Baier, Fox News correspondent Mike Tobin managed to point out that the law could affect the outcome of the gubernatorial race in Wisconsin, which shows Republican Gov. Scott Walker in a near-tie with his Democratic opponent Mary Burke. But Tobin minimized the impact of the ID law by erroneously suggesting that "there is only a handful of voters who won't get IDs by election day."

    NRO contributor Hans von Spakovsky, a tireless advocate for voter ID laws that suppress the vote of women, minorities, and the poor, also applauded the Seventh Circuit's order, calling it a "stunning blow" for opponents of voter ID. Von Spakovsky overlooked key facts in the case to ultimately conclude there was "no justification for striking down" Wisconsin's law in the first place:

    As I explained in an NRO article in May, the district court judge, Lynn Adelman, a Clinton appointee and former Democratic state senator, had issued an injunction claiming the Wisconsin ID law violated the Voting Rights Act as well as the Fourteenth Amendment. Adelman made the startling claim in his opinion that the U.S. Supreme Court's decision in 2008 upholding Indiana's voter-ID law as constitutional was "not binding precedent," so Adelman could essentially ignore it.

    However, that was too much for the Seventh Circuit. It pointed out, in what most lawyers would consider a rebuke, that Adelman had held Wisconsin's law invalid "even though it is materially identical to Indiana's photo ID statute, which the Supreme Court held valid in Crawford v. Marion County Election Board."

    It was also obviously significant to the Seventh Circuit that the Wisconsin state supreme court had upheld the state's voter-ID law in July ... In fact, the appeals court said the state court decision had changed the "balance of equities and thus the propriety of federal injunctive relief."

    In other words, there was no justification for striking down a state voter-ID law that was identical to one that had been previously upheld by both the Supreme Court of the United States and that state's highest court.

  • NRO Drags Out New Double Voting Claims Based On Old Discredited Methods


    National Review Online is repeating the claims of conservative groups who compared voter registrations in Maryland and Virginia and flagged potential instances of "double voting" -- voters with the same name and birthdate who may have voted in both states. This method of election integrity has been discredited due to its high rate of false positives and significant risk of voter disenfranchisement.

  • Right-Wing Media Myths About Voter ID Reemerge After North Carolina Decision

    Blog ››› ››› MEAGAN HATCHER-MAYS

    Myths about voter ID are reemerging in the wake of a federal judge's ruling against the government in North Carolina, a voting rights case right-wing media characterized as a "huge loss" for the Obama Administration, despite the fact that the decision is preliminary and the government has prevailed in similar cases in other states.

    In 2013, the Supreme Court struck down Section 5 of the Voting Rights Act in Shelby County v. Holder, a provision that required states with a history of suppressing the minority vote to pre-clear changes to their election laws with the Department of Justice or a federal court. Almost immediately after the decision in Shelby County, states that had been subject to the preclearance requirement, like North Carolina, began passing and implementing strict voter ID laws, an expensive fix to a problem that is essentially non-existent. Nevertheless, unnecessarily restrictive and redundant voter ID laws have become a favorite policy proposal for conservatives and right-wing media.

    A recent order denying DOJ's request for a preliminary injunction against North Carolina's new voter ID requirements -- part of the "country's worst voter suppression law" -- has now given right-wing media a fresh opportunity to dredge up old misinformation about the legal struggle over these measures. Frequent National Review Online contributor Hans von Spakovsky, a vocal proponent for oppressive voter ID laws and questionable election procedures, called it "a huge loss" for Attorney General Eric Holder and the DOJ, and claimed that the judge "simply shreds the arguments by the DOJ" in the opinion:

    Judicial Watch filed an expert report in the case through an amicus brief that showed that in the May 2014 primary election, black turnout was up an astounding 29.5 percent compared with the last midterm primary election in May 2010. White turnout was up only 13.7 percent. As Judicial Watch said, these results were "devastating to the plaintiffs' cases because they contradict all of their experts' basis for asserting harm."


    [T]his is a significant blow to DOJ and other opponents of commonsense election reforms.

    That is particularly true when one remembers that this is DOJ's second big loss in the Carolinas. South Carolina attorney general Alan Wilson beat DOJ in 2012 when a federal court threw out a claim that South Carolina's voter-ID law was discriminatory. That law is in place today -- and there is a high probability that North Carolina's voter-ID requirement will also be in place in 2016 for the next presidential election. 

  • 31 In A Billion: Election Expert's Report Shatters Right-Wing Media Voter ID Myths

    Blog ››› ››› MEAGAN HATCHER-MAYS

    A new report has debunked the primary voter fraud argument right-wing media have used for years to promote unnecessarily strict voter identification laws, which alienate eligible voters and often have the effect of suppressing the vote in minority and heavily-Democratic jurisdictions.

    These kinds of voter ID laws, which require voters to present certain forms of ID at polling locations when attempting to vote, disproportionately affect people of color and can cost states millions of dollars to implement. But right-wing media have continued to promote them, especially since 2013, when the Supreme Court struck down a key provision of the Voting Rights Act (VRA) that prevented suppression efforts in states with a history of racially-motivated voting laws. As Ezra Klein noted on the August 6 edition of MSNBC's All In, right-wing media have consistently raised the specter of in-person "voter fraud" to justify their support for these redundant and highly restrictive voter ID laws.

    But as election law experts repeatedly point out, the specific type of fraud that voter ID can prevent -- voter impersonation -- is extremely uncommon.

    National Review Online contributors John Fund and Hans von Spakovksy have been at the forefront of right-wing media's push for burdensome voter ID laws, calling Texas's law "a good thing," despite the fact that voters reported being turned away from the polls. Both Fund and von Spakovsky have advocated for further gutting what's left of the Voting Rights Act, making it nearly impossible for citizens who have been prevented from voting due to needlessly cumbersome election laws to legally challenge these oppressive regulations. Fund has also downplayed how difficult it can be for citizens -- particularly people of color, women, and low-income voters -- to obtain the right kind of identification needed to vote. In response to a Pennsylvania state court case that found the state's voter ID law unconstitutional, Fund called evidence that thousands of voters lacked the proper ID nothing more than an "inflated estimate."

    While evidence of widespread voter fraud has yet to surface, right-wing media figures have nevertheless insisted that "there are plenty of instances" of voter fraud and that there is "concrete evidence ... of massive voter fraud." But according to a new study by Loyola University law professor Justin Levitt, the in-person voter fraud that strict voter ID prevents is still nearly non-existent. Levitt's study, which "track[ed] any specific, credible allegation that someone may have pretended to be someone else at the polls, in any way that an ID law could fix" found just 31 instances of this potential voter fraud between 2000 and 2014. According to Levitt, "more than 1 billion ballots were cast in that period." 

    Election fraud happens. But ID laws are not aimed at the fraud you'll actually hear about. Most current ID laws (Wisconsin is a rare exception) aren't designed to stop fraud with absentee ballots (indeed, laws requiring ID at the polls push more people into the absentee system, where there are plenty of real dangers). Or vote buying. Or coercion. Or fake registration forms. Or voting from the wrong address. Or ballot box stuffing by officials in on the scam. In the 243-page document that Mississippi State Sen. Chris McDaniel filed on Monday with evidence of allegedly illegal votes in the Mississippi Republican primary, there were no allegations of the kind of fraud that ID can stop.

    Instead, requirements to show ID at the polls are designed for pretty much one thing: people showing up at the polls pretending to be somebody else in order to each cast one incremental fake ballot. This is a slow, clunky way to steal an election. Which is why it rarely happens.

  • Bill O'Reilly Thinks He Knows More About Civil Rights Law Than Sonia Sotomayor

    Blog ››› ››› MEAGAN HATCHER-MAYS

    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: Let's End Discrimination By Destroying The Civil Rights Act


    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.