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.
The challenge to South Carolina's unnecessarily restrictive voter ID law that von Spakovsky cites was a classic example of the powerful deterrent effect of the VRA's prohibition on racial discrimination, as the southern state continuously revised its legislation to avoid suppressing the vote on the basis of race. The federal court specifically warned South Carolina that “the evidence reveals an undisputed racial disparity” and if state officials did not follow the specific remedial instructions of the court, they would be in contempt of the law. Judge John Bates further explained: "[w]ithout the review process under the Voting Rights Act, South Carolina's voter photo ID law certainly would have been more restrictive. Several legislators have commented that they were seeking to structure a law that could be pre-cleared. The key ameliorative provisions were added during that legislative process and were shaped by the need for pre-clearance."
Von Spakovsky's description of a 2012 Texas case brought under Section 5 was even more misleading. Although the op-ed condemns voting rights law for “forc[ing] racial gerrymandering,” he fails to mention that the Department of Justice was not only successful, it was specifically Texas' racial gerrymandering to the disadvantage of voters of color that was condemned by the court and blocked by the VRA. Not only did voting rights advocates prove that Texas redistricted with discriminatory intent after the state unsuccessfully argued that the deterrent effect on voters of color was a “coincidence,” the proof was so overwhelming that the court noted “the parties have provided more evidence of discriminatory intent than we have space, or need, to address here.”
At this point, it is clear that the WSJ editorial board opposes the VRA and the bipartisan attempt to update it according to the Supreme Court's instructions. What is still absent, however, is a coherent explanation why.
This op-ed, by a notorious misinformer that even Ronald Reagan's conservative former attorney general has accused of being “wrong on both the facts and the law,” certainly doesn't do the trick.
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