John Lewis hopefully gets his last say

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I am most pleased that one of the priority bills in Congress during this post-Trump session is the John Lewis Voting Rights Advancement Act (designated H.R. 4 in the new Congress) which is intended to correct flaws in the Voting Rights Act of 1965. I will detail this bill later in this post. Although this bill is much needed after that ground-breaking 1965 legislation was cut off at the knees by the Roberts Supreme Court, it will unfortunately not be enough to stop the new round of voter suppression in the works in the swing states.

House Resolution 1 in this new session is called the “For the People Act,” and it is a hodgepodge of “close the barn door” patches to four earlier-enacted voting laws necessitated by creative-but-legal voter suppression installedor forthcoming in several states. Most of this legislation was based on the Congressional authority of “We give you money, you change your voting rules.” This bill will take another post to dissect, but neither addresses what I see as the root problem of voting rights in the United States. In short, you do not really have the voting rights that you likely think you have.

My take on the primary obstacle to unobstructed voting rights might sound a bit odd on its face, but bear with me and I will explain. I assert that a major reason that voting is in a mess is because there is no clear right in the U.S. Constitution to an unimpeded federal election vote for old white property-owning guys like me. And because I don’t have one, neither do the rest of you.

During the 2018 midterm elections I wrote a warning post about why, contrary to popular belief, old white guys like me do not have a Constitutional right to vote. Instead, our vote is what is called an ordinary liberty, subject largely to the whims of state legislators and local election officials. I will say that this “liberty” at the state and local level does naturally give people like me a distinct advantage in access to the voting booth, but it also leaves room for a legion of “creative voting rules” that are intentionally employed to restrict voting for other demographics in some states using paper-thin legal rationale.

If you have ever been in an argument with a Trumpist spouting inane “We are a republic, not a democracy” rhetoric, you have encountered the problematic difference between an ordinary liberty and a constitutional right.

What about the 15th Amendment?

The 15th Amendment to the Constitution, ratified in 1870, states that the right to vote should not be prohibited by “race, color, or previous condition of servitude,” but historically you have to admit that this Constitutional provision was pretty much of a dud out of the chute. The 19th Amendment, ratified in 1920, moved the needle a bit by extending the vote to women, and the Voting Rights Act of 1965 helped a lot by putting some enforcement meat on the bones of that nearly-dead 15th Amendment.

However, I assert, all of this legislation has been limited because it still yields back to the individual states the basic details, in most cases, about who votes, where you vote and when you vote in federal elections. And because of that, creative minds among us old white guys will always find a way to aid the demographics whom we want to vote, and shut out the “undesirable” demographics, who vary depending on place, time, and party in power. States who saw Biden upsets are rushing to close the more open provisions often passed in haste last year to accommodate the coronavirus pandemic restrictions. Because they can.

The collapse of the Voting Rights Act of 1965

The Voting Rights Act of 1965 was a landmark piece of legislation, using the 14th and 15th amendments to the Constitution as a basis to attempt to secure enforceable voting rights for minorities, especially in the American South. It is, however, a bit of a hodgepodge law, falling far short of moving voting out of the “ordinary liberty” category. Let me suggest that this was intentional. It was in the interest of many Northern legislators of both parties to punish the worst historical excesses of minority voter suppression in the Southern states without hurting their ability to maintain control over the voting rights of their preferred demographics.

In the end, this was the fatal flaw of the legislation. The critical Section 5 of the Voting Rights Act only applied to certain notoriously discriminatory jurisdictions, almost all in the Southern states, by requiring a “pre-clearance” of any changes to voting laws to examine their discriminatory potential. The Roberts Supreme Court, in the 2013 Shelby v. Holder case, struck down most of the pre-clearance criteria as unfairly targeting only certain states.

In a sense, the Roberts court was correct. As I have noted, savvy Northern legislators did not want the 1965 law to hamstring their own local election officials. However, as I have also written before, John Roberts’ now-famous declaration that he “only calls balls and strikes” has had an unintended effect. The “ballgame” in which Roberts “calls balls and strikes” is usually more like a contest between the Boston Red Sox and my grandson’s Little League team (and Roberts’ “game” has been going on for so long now that my grandson is no longer in Little League).

Little League

American demographic shifts over several decades should have, by the math, given women and minorities far greater representation in the government than they currently have. But in reality, we live more in a “one-dollar, one-vote” system, and the economic power of the white male property-owner demographic exceeds the leverage of well-organized women and minorities by about that Red-Sox-to-Little-League ratio. The Roberts Supreme Court tore down flawed legislation, but it left a very unequal balance of power open even wider in its wake.

The demographic shifts in many American states are properly seen as a threat to entrenched interests if the new population math is ever reflected in voting rights. A Republican election official from Georgia was recently quoted saying the quiet part out loud: “They don’t have to change all of [the state election laws], but they’ve got to change the major parts of them so that we at least have a shot at winning.”

The patch of the John Lewis Act

I am basing my commentary here on the initial version of this bill submitted in the Senate by Vermont Senator Patrick Leahy in July of 2020. Obviously, the text of the bill will change as we go along, and much of the language is bureaucrat-speak, but here is my take on its fixes:

  1. The first major section (actually Section 2) attempts to extend better voting protections and voter access to “Indian lands” (as they are called in the language of the bill). The coronavirus pandemic made much more visible the mischief state legislators and local legislators have long laid down in states with large indigenous populations, such as South Dakota. The lack of normal addresses, closed voting locations, new voter ID requirements and other harassments have disenfranchised large numbers of tribe members. Voting arrangements seen as “normal” and passive in my community can have devastating effects in tribal lands, and the state legislators know this well.
  2. Section 3 broadens the “trigger criteria” for asserting voting rights violations from only the 14th and 15th Amendments, as in the 1965 act, to just about any federal law ever passed that addresses discrimination. The protected groups and the threshold criteria for voting violations have been greatly expanded.
  3. Section 4 gets rid of the old geographic “pre-clearance” regions to now encompass the nation as a whole. Any jurisdiction can be placed into court supervision of voting practices if a pattern of abuses can be documented. This addresses much of the Shelby v. Holder court objection.
  4. Section 5 puts more quantitative criteria measuring “before and after” voting patterns in place that, regardless of intention to discriminate, would constitute discrimination in fact. Section 6 then specifies more transparent data reporting required from the states detailing polling places (number of machines  poll workers, etc.) and precinct demographics to enable better citizen tracking of discriminatory voting patterns.

Additional language in the bill is aimed at better targeting the enforcement of these provisions, patching the holes those creative minds have been exploiting.

“The big lie” of voter fraud in the 2021 presidential election was aggravated, and even enabled (intentionally?) by a lack of transparency in how some states count votes, and poor procedures for counting mail-in votes. Had Pennsylvania, Michigan and Wisconsin used Florida’s counting methods, which allow for early verification of mail-in votes, much of the drama and conspiracy-mongering in November’s election could have been avoided. The better transparency required in the John Lewis Act will also aid in improving citizen awareness of both real discrimination and bogus conspiracies.

Hopefully, John Lewis will get his last say here, and Congress will shore up the teetering Voting Rights Act of 1965. I have in the past suggested that we need, however, a much clearer guarantee for all adult citizens of the United States to have the broadest possible unobstructed and explicit right to vote in federal elections. If we don’t do this soon, the “most creative” among my old white male demographic will surely negate much of the progress Stacy Abrams and thousands of other dedicated vote enablers have given this country. The recent Georgia Senate wins not only reflected the real Georgia demographic but also roused the awareness of my demographic that they need to aggressively hold the line against Abrams in order to retain their outsized control of government.


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