Update the rules of racial preference

It is no longer 1965 and, thank goodness, the racial discrimination that once dominated so much of this nation no longer exists as it did 48 years ago.

That is not to claim racial bigotry has ended. It certainly continues in a variety of forms. But, nearly half a century on, it is worthwhile to re-examine programs passed in the midst of the civil-rights battles. The U.S. Supreme Court did just that this week with two rulings related to programs designed to remedy the effects of racial discrimination.

In the first ruling, handed down Monday, the high court remanded to a lower court the question of using a person’s race when universities are trying to determine whether to admit an individual to their schools.

Some observers said the Supreme Court punted in that case by sending it back to the appeals court, and that may be true. But the high court also ordered the appeals court to apply “strict scrutiny” when evaluating the University of Texas’ entrance requirements, which include a racial component. In doing so, it said, the lower court must thoroughly examine whether the university’s racial considerations are necessary to obtain the educational benefit of diversity.

Although the Supreme Court didn’t overturn the use of racial and ethnic considerations in university admissions policies, its 7-1 ruling suggested such policies will have to do more than claim diversity if they are to be upheld in the future.

On Tuesday, a more divided court was more emphatic in striking down one portion of the Voting Rights Act of 1965. Led by Chief Justice John Roberts, a five-member majority of the Supreme Court said that a “preclearance” formula created in 1965 can no longer be used to determine which states and cities must get permission from the federal government prior to changing their voting procedures.

Under the ruling, Congress is allowed to update the formula if it chooses. But, Roberts wrote, “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”

Roberts is exactly right. When the Voting Rights Act was passed, the preclearance formula was deemed necessary to overcome decades of racial discrimination in voting, particularly in the South, where blacks had long been disenfranchised by Jim Crow laws. But these days, some of those states have higher percentages of black voters than anywhere in the country, and the number of black officeholders has soared. It doesn’t make sense to use an outdated formula that punishes states despite the changes they have made.

We must remain vigilant against racial or ethnic discrimination. But we should also recognize gains that have been accomplished and update our laws to reflect those changes. This week, the Supreme Court moved cautiously in that direction.


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Apparently with Daily Sentinel’s endorsement (“Update the rules of racial preference”), our Supreme Court has disingenuously re-injected partisan judicial activism into its anti-democratic interpretations of our Constitution – by striking down Section 4 of the Civil Rights Act of 1965 (“CRA”).

In Bush v. Gore (2000), the 5-4 majority turned familiar “equal protection” analysis on its head by prohibiting recounts in Florida counties using different vote-counting procedures – a practical reality inherent in our decentralized and non-standardized election system. 

In Citizens United (2010), the 5-4 majority “naively underestimated” the impacts of both unlimited and anonymous political spending on the integrity of elections – by relying on dubious precedents to rule that “money” is “speech” protected by the Free Speech Clause of the First Amendment (rather than “property” subject to reasonable regulation) and that corporations are living “persons” entitled to First Amendment protections (rather than artificially-created legal entities with limited privileges specifically defined by statute).

In Shelby County v. Holder (2013), Chief Justice Roberts’ opinion for the 5-4 majority entirely ignored – by making no reference to – the plain language of Article I, Section 4:

The . . . Manner of holding Elections . . . shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . .

Thus, our Constitution expressly empowers Congress to selectively override “principles of Federalism” (a polite euphemism for “states rights”).  In 2006, Congress compiled an 1800 pages record documenting ongoing race-based election abuses, which justified its nearly unanimous renewal and extension of the VRA. 

Thus, even if Section 4’s outdated “formula” can no longer be constitutionally used to treat States “unequally” or to add jurisdictions to those already covered by Section 5’s “pre-clearance” provisions, their renewal at least ratified the then-existing coverage map – without regard to any “formula”.

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