The Crippling of the Voting Rights Act

Professor Atiba Ellis

Steven Ramirez posted yesterday on the Supreme Court's tone deaf holding in Shelby County v. Holder where the Court held that section 4 of the Voting Rights Act was unconstitutional. Atiba Ellis weighs in today on the ACS Blog calling the Supreme Court's decision a "crippling of the Voting Rights Act."

According to Professor Ellis:  "In Shelby County, AL v. Holder, the Supreme Court, in a 5-4 decision split on ideological lines, declared unconstitutional the formula used under the Voting Rights Act of 1965 to determine which states and localities must receive pre-approval of their voting rights laws. This decision, which effectively ends the preclearance practice meant to preserve minority voting rights, will transform the right to vote for years to come. Once again, relying on the myth of racial progress, the Supreme Court failed to confront the racial balkanization in voting that exists, and it ultimately crippled the role that Voting Rights Act has in limiting it. . . ."

Professor Ellis goes on to critique the key analytical premise relied upon by Chief Justice Roberts:  "The key premise of the Shelby County opinion is that the covered jurisdictions – mainly the ex-Confederate South – have changed so sufficiently that the government must reconsider selective preclearance enforcement of race-conscious remedies. The message of the Roberts opinion (and the Thomas concurrence) is that coverage formulas rooted to a past of racial discrimination in voting ignores racial progress.  Indeed, Roberts implied that to hold to such formulas amounts to punishment of the states covered for their racial history. (Slip op. at 20).
 
The majority’s analysis is incomplete and unpersuasive on this key issue. Indeed, it sidesteps the arguments put forward by both sides concerning the degree of progress as “debatable” (Slip op. at 21) rather than grapple with exactly how much progress we have made to racial political equality.  Instead, the majority simply asserted (again and again) that Congress had no basis in current political reality to rely on the current coverage formula.  Id. Rather than account for the varied forms of second-generation voter intimidation as evidence on which Congress could have based its findings, the majority suggests that increased voter participation demonstrates enough progress towards racial political equality to effectively scuttle Section Five.

As I argued before concerning the Shelby County case, this incomplete picture of racial triumph ignores the political realities of modern voter suppression tactics and their racial impact. Relying on this ideological view causes the majority to fall into the trap of wanting to believe that the markers of progress represent success rather than confronting the far more complex reality.  Moreover, without Section Five’s moderating influence and example, the voting wars will proceed unchecked – and we as a country may very well see the erosion of the right to vote. The consequences of this premature post-racial decision will likely define – negatively -- the scope of voting rights for the 21st century."

Professor Ellis succinctly describes the blinders that the majority opinion justices willingly wore when considering the Shelby County case.  In reality, voting as a constitutional right should be openly encouraged of all citizens.  In Brazil, voting is required with a Brazilian citizen paying a small penalty/fee if he or she fails to cast a ballot.  Why is so much energy being put forth in the United States to actually restrict voting and access to the ballot box?  Professor Ramirez provides some answers to that question in yesterday's post, calling GOP efforts to restrict voting an unconscionable "effort to disenfranchise voters of color nationwide."  Voter fraud is pretext.  Laws on the books appropriately punish those rare cases where individuals attempt to engage in voter fraud.  Instances of voting fraud are miniscule.  Efforts to dramatically restrict the rights of citizens to vote through voter ID laws, restricted early voting, and closing the number of polling places in large communities are all efforts to disenfranchise 21st century voters.  This point escapes the five member majority of the Shelby County opinion (or they are ostriches as Justice Ginsburg argues).

MARCH ON WASHINGTON!

 

Yesterday, by a 5-4 vote, the Supreme Court effectively eviscerated the Voting Rights Act of 1965. Although originally signed into law by President Lyndon Johnson, the Act was extended by President Bush in 2006, after clearing the Senate 98-0. The New York Times (along with other media outlets) condemned the opinion as "intellectually dishonest" while more conservative voices found it "defensible."

Congress enacted the Voting Rights Act under the Fifteenth Amendment. That Amendment gives express and broad power to Congress to secure voting rights of communities of color. It only requires any such legislation be "appropriate." As Justice Ginsburg stated in her blistering dissent: "When confronting the most constitutionally invidious form of discrimination, and the most fundamental right in our democratic system, Congress' power to act is at its height." (slip op., dissent at 8). Moreover, Justice Ginsburg also noted that the Constitution always limited state sovereignty regarding elections under the elections clause.

No observer can possibly claim that racial discrimination in voting is over. Indeed, Justice Roberts, who wrote the majority opinion, admits that "voting discrimination still exists." Further, the Voting Rights Act effectively operated for decades to reduce disparities in voter registration. (slip op. at 15). Again, Justice Roberts admits this.

But instead of leaving effective and necessary legislation in place, Justice Roberts uses the success of the Act to claim that the Act is not based sufficiently on "current conditions." In fact, Justice Roberts seemingly chides Congress for not "updating" the Act.

That is not an appropriate level of deference for voting rights legislation under the Fifteenth Amendent. Judicial review does not give the Court license to second guess our elected officials. This is judicial activism running riot. Tellingly, Justice Roberts cites to no precedent overturning Congressional voting rights legislation under the Fifteenth Amendment.

Some claim that this Court simply acts in a brazenly partisan way. While I hesitate to reach that conclusion, it seems clear that the Supreme Court fears the voting power of communities of color. First, they dare not overturn affirmative action (just yet). Then, they nullify the Voting Rights Act of 1965. The majority of the Court acts as though the voting power of communities of color is the problem. The Court has certainly given a green light to GOP efforts to disenfranchise voters of color nationwide, as evidenced here, here, here and here.

So, we have little option, as those resistant to the efforts of entrenched power to perpetuate injustice illegitimately, but to march on Washington. There is already a march organized for August 24th to commemorate Martin Luther King's I Have a Dream speech of 50 years ago.  This march forms an ideal platform to demand a new voting rights act now.

Given the nature of efforts to disenfranchise minority voters perhaps a new Voting Rights Act of 1965 could emerge as an even stronger source of protection for voting rights across the entire nation. If the Court sought to curb the voting power of voters of color, this decision could easily backfire. Indeed, efforts to disenfranchise minority votes seem to increase turnout.

The five justices in the majority, as Republican appointees, certainly belie any supposed GOP effort toward greater inclusivity.
 
See you in Washington!

AFFIRMATIVE ACTION AFFIRMED

The Supreme Court today released its awaited affirmative action decision.

The full text of the opinion in Fisher v. University of Texas is available here. Essentially, the Court remanded to the Fifth Circuit and directed the lower courts to apply its affirmative action precedents in Grutter and Bakke.

I have little to add to my first post on this case: Fisher v. Texas: Affirmative Action for Whites Only? I do however wish to highlight that this case seems to obviously reflect the new political realities of an increasingly diverse nation. As such, conservatives would be well advised to embrace this outcome as a de minimis step for relieving continued racial oppression in America.

For example, there is this grim reality for children of color in America:

 
Or, consider this obscene reality for incarceration rates in America:


Facts are stubborn things and conservatives ought not to ignore these morally reprehensible racial disparities. If not swayed by morality, let them be swayed by political reality.

Charitable Giving?

Corporations are legally permitted to expend general treasury funds for charitable purposes.  Indeed, corporations are encouraged to contribute to charities in order to improve the communities in which they do business and to support the consumers that purchase their products or use their services.  State rules place parameters around the amount of money that can be allocated from corporate coffers to charitable entities with most rules allowing contributions that are reasonable in amount, related to a corporate purpose, and not distributed to "pet" charities.  With corporations now stepping into the giving role that large philanthropic families played in the 19th and 20th centuries (like the Mellon family, the Rockefeller family, etc.), and with charities relying more heavily than ever on corporate gifts, what are we to make of news today that dozens of charities are little more than scams initiated by individuals seeking easy windfalls?

CNN, together with the Tampa Bay Times and the Center for Investigative Reporting, released a stunning report today indicating that hundreds, if not thousands of charities are siphoning millions of dollars from charitable givers and enriching charity founders and executives and for-profit companies that are paid to solicit the charitable gifts.  This report indicates that thousands of charities pay for-profit vendors to raise their donations, sometimes spending more than 90% of the contributions on soliciting more contributions.  CNN reports that the worst charity investigated was the Kids Wish Network:

"Every year, Kids Wish Network raises millions of dollars in donations in the name of dying children and their families.  Every year, it spends less than 3 cents on the dollar helping kids.  Most of the rest gets diverted to enrich the charity's operators and the for-profit companies Kids Wish hires to drum up donations.  In the past decade alone, Kids Wish has channeled nearly $110 million donated for sick children to its corporate solicitors. An additional $4.8 million has gone to pay the charity's founder and his own consulting firms.  No charity in the nation has siphoned more money away from the needy over a longer period of time.  

But Kids Wish is not an isolated case, a yearlong investigation by the Tampa Bay Times and The Center for Investigative Reporting has found.  Using state and federal records, the Times and CIR identified nearly 6,000 charities that have chosen to pay for-profit companies to raise their donations.  Then reporters took an unprecedented look back to zero in on the 50 worst - based on the money they diverted to boiler room operators and other solicitors over a decade.  These nonprofits adopt popular causes or mimic well-known charity names that fool donors. Then they rake in cash, year after year. The nation's 50 worst charities have paid their solicitors nearly $1 billion over the past 10 years that could have gone to charitable works."

The Kids Wish Network is not alone.  This investigative report listed the 50 worst charities.  Below is a chart listing the top ten worst charities ranked by money spent on soliciting costs versus money spent on direct cash aid.

Are publicly traded corporations engaging in appropriate due diligence before spending general treasury funds on charitable contributions?  The report above indicates that there is an urgent need to engage in such diligence.

The 50 worst, ranked by money blown on soliciting costs

Totals from the latest 10 years of available federal tax filings

Rank	Charity name	Total raised by solicitors	Paid to solicitors	% spent on direct cash aid
1	Kids Wish Network	$127.8 million	$109.8 million	2.5%
2	Cancer Fund of America	$98.0 million	$80.4 million	0.9%
3	Children's Wish Foundation International	$96.8 million	$63.6 million	10.8%
4	American Breast Cancer Foundation	$80.8 million	$59.8 million	5.3%
5	Firefighters Charitable Foundation	$63.8 million	$54.7 million	8.4%
6	Breast Cancer Relief Foundation	$63.9 million	$44.8 million	2.2%
7	International Union of Police Associations, AFL-CIO	$57.2 million	$41.4 million	0.5%
8	National Veterans Service Fund	$70.2 million	$36.9 million	7.8%
9	American Association of State Troopers	$45.0 million	$36.0 million	8.6%
10	Children's Cancer Fund of America	$37.5 million	$29.2 million	5.3%

The Sordid Private Prison Corporation Agenda

"Kids for Cash" Judge Mark Ciavarella

News out of the United States this week in connection with the debacle that is the for-profit private prison corporation regime borders on deprave.  That the privatization of the prison industry in the U.S. (and abroad) is not now considered an epic failure is mystifying.  In Pennsylvania, Mark Ciavarella, Jr., the former juvenile court judge that orchestrated the "Kids for Cash" scandal, was formally sentenced to 28 years in prison for his role in sending children to jail in return for cash payments (the Third Circuit Court of Appeals upheld the sentence from his 2011 trial).  Ciavarella was found guilty in 2011 of "engaging in a pattern of racketeering and participating in a racketeering conspiracy through his receipt and transfer of $997,600 from individuals associated with the juvenile detention centers."  Ciavarella and former Judge Michael Conahan were both accused of sending children to private juvenile detention facilities, in Luzerne County, PA, often in violation of the kids' constitutional rights, in return for bribes and kickbacks from private prison owner Robert Mericle for the number of children that they sentenced to spend time in the Mericle-built private juvenile facilities.  Conahan pled guilty to racketeering in 2010, while Ciavarella cavalierly battled the indictment claiming that he received only a "finders fee" for assisting in the construction of the private prison facility.

As reported in 2011 by the Christian Science Monitor, the jury found Ciavarella guilty on 12 of 39 counts in his indictment. Aside from racketeering, he "was also convicted of failing to record the secret payments on judicial financial disclosure forms from 2004 to 2007, and for filing false tax returns for those same years. In addition, the jury found him guilty of engaging in a money-laundering conspiracy to conceal the payments."

The perverse incentives that attach when private corporations seek to control a public function like crime and punishment, including sentencing and imprisonment, literally overwhelms both judges and corporate executives. That a private prison company would actually bribe judges to fill their prisons is appalling.  Just as outrageous is that judges would, without remorse, destroy the lives of young kids by imprisoning them for minor crimes or misbehaviors, in order to receive bribes that the private industry seems more than willing to pay.

GEO Group Headquarters in Florida

Meanwhile, the GEO Group, Inc., one of the nation's largest private prison companies, has been lying to investors and the general public. The mantra of private prison companies is that they "do no harm" as they simply run prisons more efficiently and for lower cost than government can.  In repeating this mantra, the GEO Group and the Corrections Corporation of America (CCA) routinely claim that they do not seek to influence legislatures or lobby for longer sentences, for greater prison time or for the expansion of crimes that will ultimately lead to a stronger flow of prisoners into their prison beds, including claims that they are not involved in the criminalization of immigration.  This however, is reportedly not true.  Not only is there emerging evidence that private prisons run less efficiently and at greater cost than those run by states and municipalities, but GEO Group's public disclosures this year admitted to paying millions of dollars to lobbyists that are seeking to influence immigration policy by sending illegal immigrants into the private prisons.

The Nation reports:  "Earlier this year, one of the largest private prison corporations in the country sent out a statement to reporters claiming that it would not lobby in any way over the immigration reform debate. A new disclosure shows that the company, the Boca Raton–based Geo Group, has in fact paid an 'elite team of federal lobbyists' to influence the comprehensive immigration reform legislation making its way through Congress. . . .

In February and March, Pablo Paez, the Geo Group’s vice president of corporate relations, told media outlets, including the Financial Times and The Nation, that his firm would steer clear of immigration reform politics. . . . 'The GEO Group has never directly or indirectly lobbied to influence immigration policy. We have not discussed any immigration reform related matters with any members of Congress, and we will not participate in the current immigration reform debate.'

Geo Group’s quarterly lobbying disclosure tells a different story. A disclosure filed in April shows that the company turned to Navigators Global to lobby both houses of Congress on 'issues related to comprehensive immigration reform.' Navigators Global, a corporate government affairs firm founded by several Republican aides, has been retained by the Geo Group since 2011 . . . ."

The private prison industry is sordid, evidenced by judicial bribery and lying to investors and the public at large.  How long will we stand for this debauchery?