Justice Kennedy Has To Answer For North Carolina

To become better citizens "we must know and understand our heritage and our history, its triumphs and its mistakes," Justice Anthony Kennedy told an audience last Monday at the Chautauqua Institution in Upstate New York in a speech that, sadly, was neither recorded nor transcribed for posterity. Four days later, as if on cue, the governor of the relentlessly regressive state of North Carolina showed the justice who last month helped scuttle the heart of the Voting Rights Act exactly how some intend to interpret his lecture. Pat McCrory, the Republican presiding over the dismantling of the state's relatively reasoned approach to race and the law, declared Friday that he was eager to sign the state's restrictive new voting law, the most suppressive of its era, even though he had not read a key part of it. "I don't know enough, I'm sorry," the governor told a reporter who asked about a provision in the pending measure that will preclude pre-registration for those under 18 (because, after all, if there is anything this nation needs to do when it comes to encouraging civic participation it is to make it harder for eager young people to vote).

In his confessed ignorance of the details of a discriminatory voting law in a Southern state, McCrory is no outlier. His incurious approach to such vital legislation is yet another form of the willful ignorance that has animated much of the national debate over voting rights over the past half decade or so. There has been the legal and historical ignorance of the purposes of the 15th Amendment and their continuing application to the modern-day ruses designed to suppress minority votes. There has been widespread practical ignorance of the differences (constitutional and otherwise) between being required to show photo identification to purchase allergy medicine and being required to show photo identification to exercise a constitutionally protected right to vote. And of course there is the granddaddy of them all when it comes to modern-day voter suppression -- the factually ignorant and quite persistent myth that "voter fraud" in anything more than a negligible problem in any of the states where lawmakers have invoked such "fraud" to make it measurably harder for poor and elderly and ill and young citizens to vote.

In North Carolina, Gov. McCrory might not have read what he was so gleeful to sign. But he sure had memorized his talking points about why the state needed to eliminate same-day voter registration, cut early voting by a week, ban paid voter registration drives, and allow more people to challenge the registration qualifications of other voters, to name just some of the ways in which state lawmakers rushed to stymie the voting rights of their fellow citizens. "Republicans have said the legislation is meant to prevent voter fraud, which they claim is both rampant and undetected," the Associated Press diplomatically reported in its piece about McCrory and the bill he is expected to sign in the next week or so. Just how something can be known to be "rampant" and yet also be "undetected" is unclear. What is clear is that North Carolina since 2000 has had just 22 reported cases of voter fraud and no reported cases of voter impersonation out of millions upon millions of votes cast.

How can a state justify such drastic voting restrictions based upon so little evidence of voter fraud? Because the United States Supreme Court said so, in 2008, in a case styled Crawford v. Marion County. Today, Crawford seems one part ignorant, one part naïve: yes, the justices said by a vote of 6-3, let's unleash partisan state lawmakers to restrict voting access without requiring them to justify those restrictions on any discernible evidence. What could possibly go wrong? No wonder John Paul Stevens, the retired justice who authored Crawford, so quickly and passionately excoriated Chief Justice John Roberts and the rest of the Court's conservatives for their June decision in Shelby County v. Holder, the ruling which gutted Sections 4 and 5 of the federal law and encouraged McCrory and Company to pounce. Perhaps Justice Stevens is mortified about what state officials, in North Carolina and elsewhere, have done with the "good faith" leeway he gave them in Crawford. He sure ought to be.

There is yet one more form of ignorance on voting rights that's worth mentioning here—a hybrid of all the rest -- and it's brought to us by Ross Douthat, the columnist for The New York Times, who told his readers last week that the voting data behind North Carolina's suppression measures support the Supreme Court's dubious rationale in Shelby County because the new state law "has an impact on white Republicans as well as black Democrats ... mostly affects the already-nonvoting ... only matters in whisker-tight elections, and ... probably [can] be mitigated through an effective voter turnout operation." In this iteration of the constitutional universe, unacknowledged until now in the text of the 15th Amendment or Voting Rights Act, a justification without any justification, the state's ability to deprive a citizen of her most fundamental right depends upon how close an election is likely to be, how motivated the voter is to cast a ballot, how broadly the voting restrictions cut across racial lines, and how capable her party is in overcoming the partisan restrictions upon her ability to vote.

There isn't enough evidence to plausibly argue "voter fraud" anymore. And arguing "voter integrity" is a tough sell, even to the masses, when you are actively precluding registered voters from casting a ballot. So now the argument to justify voter suppression has devolved to this: Because blacks are no longer killed when they try to register to vote, because many more vote now than voted 50 years ago, "things have changed" enough in the South to permit states to enact discriminatory laws that threaten minority votes in more subtle ways. The intended result is the same -- disenfranchisement -- but the method of getting there has a more sterile and bureaucratic visage. In this, Southern lawmakers are demonstrating to Justice Kennedy and everyone else that they indeed understand fully their "heritage" and their "history, its triumphs and its mistakes" and have learned from them. Fifty years after Birmingham, they have learned once again how to use the law as a weapon and not a shield against minority citizens within their midst.