Update the rules of racial preference

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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Thus, even if Section 4’s outdated “formula” can no longer be constitutionally used to treat States “unequally” or to add jurisdictions to those already covered by Section 5’s “pre-clearance”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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