John Roberts and the Voting Rights Act — Stephanie Mencimer in Mother Jones and the Chief Justice’s antipathy for the law.
In 2013, when Chief Justice John Roberts Jr. issued the most far-reaching Supreme Court decision on voting rights in the 21st century, he finally succeeded in gutting a civil rights law he has been fighting his entire career. For three decades, Roberts has argued that the United States has become colorblind to the point where aggressive federal intervention on behalf of voters of color is no longer necessary—and this case, Shelby County v. Holder, was the pinnacle of that crusade.
Roberts honed his views on race and voting as a clerk for Justice William Rehnquist, a man who as a court clerk himself had written a memo endorsing Plessy v. Ferguson, the “separate but equal” doctrine upholding segregated schools. On the high court, Rehnquist helped redefine opposition to civil rights laws as a commitment to color blindness, and he used this theory to undermine the 1965 Voting Rights Act.
Roberts took a similar outlook in the Reagan Justice Department, where he worked after finishing his Rehnquist clerkship. Gerry Hebert, now executive director of the Campaign Legal Center, was also at the DOJ. He recalls that Roberts “had it in for the Voting Rights Act,” which Roberts thought should cover only intentional discrimination, not discriminatory results or effects of state voting regulations. But proving intentional discrimination is virtually impossible—and besides, Hebert says, judges “don’t want to find that somebody was a racist.” They’d rather focus on the discriminatory impact of a law. “I don’t think John Roberts ever got that.”
Echoing Rehnquist, Roberts has long insisted the United States has achieved a postracial, colorblind society, a point he emphasized in his 2013 majority opinion in Shelby County v. Holder. That 5-4 decision eviscerated a critical component of the Voting Rights Act: the requirement that jurisdictions with a long history of voting discrimination submit any changes in voting procedures to the DOJ for “preclearance,” to ensure those changes didn’t have a discriminatory impact. Preclearance blocked more than 700 discriminatory voting changes between 1982 and 2006 alone. But in the Shelby opinion, Roberts asserted that “history did not end in 1965” and such protections were no longer warranted. Federal oversight of the jurisdictions in question, mostly states in the Deep South, along with Texas, Alaska, and Arizona, was outdated and unjustified, he said.“The speed with which formerly covered states passed laws making it harder for people of color to register and vote shows that Roberts was engaged in little more than wishful thinking.”
In a scathing dissent, Justice Ruth Bader Ginsburg laid out evidence that those states have not grown colorblind—by any stretch. She recounted how federal investigators had secretly recorded Alabama officials referring to African Americans as “Aborigines” and openly plotting to block a ballot initiative they thought would increase African American turnout, as “every black, every illiterate,” would be “bused [to the polls] on HUD financed buses.”
“These conversations occurred not in the 1870’s, or even in the 1960’s, they took place in 2010,” she wrote, indicating why preclearance “remains vital to protect minority voting rights and prevent backsliding.”
Ginsburg proved prescient. After the 5-4 Shelby decision, states passed a torrent of new voting restrictions that overwhelmingly affected minorities. On the day the decision was handed down, Texas announced that the only two forms of state voter identification it would accept were a driver’s license or a gun license—a measure the DOJ had previously blocked. Georgia moved some municipal elections in predominantly minority areas from November to May, depressing turnout by nearly 20 percent in one instance. Alabama implemented a strict voter ID law—and then shut down driver’s license offices in every county where more than 75 percent of voters were African American. Perhaps the most blatant was North Carolina’s omnibus voting law. Passed shortly after the Shelby decision, the law imposed strict ID requirements, limited the registration window, and dramatically cut early voting during times traditionally used by African Americans.
“The speed with which formerly covered states passed laws making it harder for people of color to register and vote shows that Roberts was engaged in little more than wishful thinking,” says Richard Hasen, a University of California-Irvine law professor who specializes in election law.
The undoing of the Voting Rights Act may be one of Roberts’ most lasting legacies. But “there’s a lot of resistance among some lower-court judges to Roberts’ views of the state of race relations and voting…and it is reflected in some of their decisions,” Hasen says. In July the 4th Circuit Court of Appeals blocked enforcement of North Carolina’s voting law, saying its provisions “target African-Americans with almost surgical precision.” In the wake of Justice Antonin Scalia’s death, Roberts no longer had enough votes on the Supreme Court to prevent that ruling from taking effect before the election.
Lower-court decisions rejecting the Roberts orthodoxy haven’t fallen along ideological lines, either. The very conservative 5th Circuit Court of Appeals rejected Texas’ harsh voter ID law. A George W. Bush appointee wrote the majority opinion. “The lower courts are coalescing around a broad view of the Voting Rights Act’s prohibitions on discriminatory results,” says David Gans, a civil rights expert at the liberal Constitutional Accountability Center.
Will any of these developments prompt Roberts to rethink his Shelby opinion? Probably not. In the August order the Supreme Court issued that blocked North Carolina’s draconian voting law, Roberts wrote that he personally would have allowed most of the law to take effect. And despite the lower-court rulings, in November 14 states will have new voting restrictions that didn’t exist in 2012. “He probably still believes he is right, because he likely sees what is going on as simple partisan politics,” says Hasen. “But for many of us, we see a world in which it is once again getting harder, not easier, for people—especially people of color—to cast a ballot which will count.”
Outside the Norm — Jane Mayer in The New Yorker on FBI Director Comey’s decision to drop a dime to Congress.
On Friday, James Comey, the director of the Federal Bureau of Investigation, acting independently of Attorney General Loretta Lynch, sent a letter to Congress saying that the F.B.I. had discovered e-mails that were potentially relevant to the investigation of Hillary Clinton’s private server. Coming less than two weeks before the Presidential election, Comey’s decision to make public new evidence that may raise additional legal questions about Clinton was contrary to the views of the Attorney General, according to a well-informed Administration official. Lynch expressed her preference that Comey follow the department’s longstanding practice of not commenting on ongoing investigations, and not taking any action that could influence the outcome of an election, but he said that he felt compelled to do otherwise.
Comey’s decision is a striking break with the policies of the Department of Justice, according to current and former federal legal officials. Comey, who is a Republican appointee of President Obama, has a reputation for integrity and independence, but his latest action is stirring an extraordinary level of concern among legal authorities, who see it as potentially affecting the outcome of the Presidential and congressional elections.
“You don’t do this,” one former senior Justice Department official exclaimed. “It’s aberrational. It violates decades of practice.” The reason, according to the former official, who asked not to be identified because of ongoing cases involving the department, “is because it impugns the integrity and reputation of the candidate, even though there’s no finding by a court, or in this instance even an indictment.”
Traditionally, the Justice Department has advised prosecutors and law enforcement to avoid any appearance of meddling in the outcome of elections, even if it means holding off on pressing cases. One former senior official recalled that Janet Reno, the Attorney General under Bill Clinton, “completely shut down” the prosecution of a politically sensitive criminal target prior to an election. “She was adamant—anything that could influence the election had to go dark,” the former official said.
Four years ago, then Attorney General Eric Holder formalized this practice in a memo to all Justice Department employees. The memo warned that, when handling political cases, officials “must be particularly sensitive to safeguarding the Department’s reputation for fairness, neutrality, and nonpartisanship.” To guard against unfair conduct, Holder wrote, employees facing questions about “the timing of charges or overt investigative steps near the time of a primary or general election” should consult with the Public Integrity Section of the Criminal Division.
The F.B.I. director is an employee of the Justice Department, and is covered by its policies. But when asked whether Comey had followed these guidelines and consulted with the Public Integrity Section, or with any other department officials, Kevin Lewis, a deputy director of public affairs for the Justice Department, said, “We have no comment on the matter.”
According to the Administration official, Lynch asked Comey to follow Justice Department policies, but he said that he was obliged to break with them because he had promised to inform members of Congress if there were further developments in the case. He also felt that the impending election created a compelling need to inform the public, despite the tradition of acting with added discretion around elections. The Administration official said that Lynch and Justice Department officials are studying the situation, which he called unprecedented.
Matthew Miller, a Democrat who served as the public-affairs director at the Justice Department under Holder, recalled that, in one case, the department waited until after an election to send out subpoenas. “They didn’t want to influence the election—even though the subpoenas weren’t public,” he said. “People may think that the public needs to have this information before voting, but the thing is the public doesn’t really get the information. What it gets is an impression that may be false, because they have no way to evaluate it. The public always assumes when it hears that the F.B.I. is investigating that there must be something amiss. But there may be nothing here at all. That’s why you don’t do this.”
“Comey is an outstanding law-enforcement officer,” Miller said, “but he mistakenly thinks that the rules don’t apply to him. But there are a host of reasons for these rules.”
As Miller sees it, Comey’s “original sin” was the press conference he held in July regarding the Clinton e-mail investigation. At that press conference, Comey stated that the F.B.I. had found no reason to bring criminal charges against Clinton for using a private e-mail server to handle much of her State Department business, but that Clinton and her staff had been “extremely careless in their handling of very sensitive, extremely classified information.” Comey made clear that he had decided to make this comment without any sign-off from the Justice Department. Ordinarily, when no charges are brought, such matters are not exposed to public view, let alone addressed at press conferences.
Comey’s supporters argue that he had to act independently, and publicly, because Lynch had compromised herself by having an impromptu visit with Bill Clinton late in the investigation. In the ensuing uproar, Lynch promised to accept Comey’s recommendation on whether to bring charges against Clinton. But, as Miller notes, Comey’s press conference triggered a series of other events, including congressional hearings where Comey was forced to defend his decision not to recommend prosecution. Comey’s letter to Congress on Friday updated his earlier statements that the Clinton e-mail investigation had ended.
In a letter to F.B.I. employees sent soon after the letter to Congress, Comey tried to explain his unusual decisions. In the letter, which was obtained by the Washington Post, he acknowledged, “Of course, we don’t ordinarily tell Congress about ongoing investigations, but here I feel an obligation to do so given that I testified repeatedly in recent months that our investigation was completed. I also think it would be misleading to the American people were we not to supplement the record. At the same time, however, given that we don’t know the significance of this newly discovered collection of emails, I don’t want to create a misleading impression. In trying to strike that balance, in a brief letter and in the middle of an election season,” he noted, “there is significant risk of being misunderstood.”
“I don’t really blame Comey,” another former Justice Department official said. “But it’s troubling.” This official thought that Comey “didn’t want to look tainted. This new information comes to him, and he’s afraid if he doesn’t make it public until after the election he’ll be impeached. People will say he lied to Congress. But in the end he did the self-protective thing. Was it the right thing? Put it this way: it isn’t what previous Administrations have done.”
What Others Said — James Fallows on how previous candidates dealt with an uphill climb shortly before the election.
Donald Trump was of course “joking” when he said [Thursday] in Toledo, Ohio, that “we should just cancel the election and just give it to Trump, right? What are we even having it for?”
In [this] clip, you can see what we’ve come to recognize as a classic Trump-rally two-track message. It’s a mixture of claims that would be outrageous if taken seriously, with a half-joking affect that lets Trump suggest that he’s not being serious at all. As a result, he can have it both ways. People who want to, can take this as something Trump is really supporting. (This is a variation of, “A lot of people are saying….”) But if anyone gets huffy and calls Trump on it, he can say, “What kind of dummy are you? Of course that was a joke!”
So, it’s a joke. But it’s a joke that connects with other non-joke Trump statements deeply at odds with the very process of democratic transfer of power. For instance, “I alone” can save us (a refrain from the convention onward). Or, “It’s rigged, folks, rigged” (of recent months). Or “I’ll keep you in suspense” (at the final debate, about accepting the vote outcome.)
Why do all of these deserve notice? Because other nominees just do not say things like this. Really, this is new—and different, and dangerous, and worth recording as it happens to remember when this election has passed.
Even when under pressure, even when telling themselves that the deck is unfairly stacked, other American public figures have been careful to pay public homage to the electoral process and the need to accept its outcome. Please consider these two examples:
John McCain, 2008. Trump’s remarks were in Toledo yesterday, October 27. Eight years ago on that same date, on October 27, 2008, McCain was also in western Ohio, in Dayton—swing states are swing states. Like Trump right now, McCain was far enough behind in enough polls in enough states to know that he was likely to lose. But here is the way he talked about the election and its outcome on his October 27: