J. Toobin is a "legal analyst" for CNN. J. Tobin writes for Commentary. Both have columns today discussing the Supreme Court's consideration of section 5 of the Voting Rights Act. It is as if they saw different arguments.
According to Toobin, the argument turns on the desire of the Chief Justice to do away with all the legal weapons that won the civil rights movement. According to Tobin, the issue is whether the political elites will still be able to protect their turf using outmoded and improper arguments that arise from the Voting Rights Act.
Perhaps the strongest statement in either piece is this from Tobin:
There is no evidence that anyone in [Alabama] is trying to reinstate Jim Crow laws or prevent African Americans or other minorities from exercising their constitutionally protected right to cast a ballot. Nor is there any evidence that this is true anywhere else in the states and counties that remain under direct federal supervision as a result of the 1965 law. The entitlement in question is rather the ability of the Justice Department to act as a national elections commission in certain areas that were once strongholds of racial hatred, even though the country has changed markedly in the last half century. ...[T]he focus should be on who benefits from the continuation of Section Five of the Act. The answer is: a class of political elites that benefit from the creation of racial majority districts.
Toobin has no answer for this. The reason is that there is no answer for this. There is no proof of any sort that the states and counties covered by Section 5 of the Voting Rights Act are discriminating in any way against minorities. Nor is there proof of any attempt to do so. That means that absent such proof, Congress has no reason to differentiate between those states which are covered and those which are not. Simply put, that means the law is unconstitutional.
Now before you tell me that when the law was first passed there was rampant racism in these states, you need to bring your facts up to date. What was done fifty years ago by other people does not provide the basis for Congress to limit the rights of other folks today. If you doubt this, consider whether or not Congress could pass a law that required all Americans with a grandparent born in Germany to register with the FBI and undergo background checks. After all, a mere 70 years ago, those grandparents may well have been enemy aliens fighting against the USA. The point here is that Congress could not do this. Likewise, Congress cannot act now on the basis of 50 year old racism.
The sooner that folks like Toobin realize that this discussion is not about bringing back racism but rather about treating all states equally, the quicker section 5 of the Voting Rights Act will get the death it so richly deserves.
Remember, nothing before the Supreme Court will allow any state to pass any statute or rule that would discriminate on the basis of race. That requirement remains untouched. All that will be eliminated is the ability of the Justice Department to meddle in the affairs of some, but not all, of the states.
According to Toobin, the argument turns on the desire of the Chief Justice to do away with all the legal weapons that won the civil rights movement. According to Tobin, the issue is whether the political elites will still be able to protect their turf using outmoded and improper arguments that arise from the Voting Rights Act.
Perhaps the strongest statement in either piece is this from Tobin:
There is no evidence that anyone in [Alabama] is trying to reinstate Jim Crow laws or prevent African Americans or other minorities from exercising their constitutionally protected right to cast a ballot. Nor is there any evidence that this is true anywhere else in the states and counties that remain under direct federal supervision as a result of the 1965 law. The entitlement in question is rather the ability of the Justice Department to act as a national elections commission in certain areas that were once strongholds of racial hatred, even though the country has changed markedly in the last half century. ...[T]he focus should be on who benefits from the continuation of Section Five of the Act. The answer is: a class of political elites that benefit from the creation of racial majority districts.
Toobin has no answer for this. The reason is that there is no answer for this. There is no proof of any sort that the states and counties covered by Section 5 of the Voting Rights Act are discriminating in any way against minorities. Nor is there proof of any attempt to do so. That means that absent such proof, Congress has no reason to differentiate between those states which are covered and those which are not. Simply put, that means the law is unconstitutional.
Now before you tell me that when the law was first passed there was rampant racism in these states, you need to bring your facts up to date. What was done fifty years ago by other people does not provide the basis for Congress to limit the rights of other folks today. If you doubt this, consider whether or not Congress could pass a law that required all Americans with a grandparent born in Germany to register with the FBI and undergo background checks. After all, a mere 70 years ago, those grandparents may well have been enemy aliens fighting against the USA. The point here is that Congress could not do this. Likewise, Congress cannot act now on the basis of 50 year old racism.
The sooner that folks like Toobin realize that this discussion is not about bringing back racism but rather about treating all states equally, the quicker section 5 of the Voting Rights Act will get the death it so richly deserves.
Remember, nothing before the Supreme Court will allow any state to pass any statute or rule that would discriminate on the basis of race. That requirement remains untouched. All that will be eliminated is the ability of the Justice Department to meddle in the affairs of some, but not all, of the states.
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