Shane Reactions

Mostly on (a) the Presidency and (b) Democracy and Communication

  • Archive

  • Categories

  • Subscribe

Posts Tagged ‘Voting Rights’

How Full Is That Glass? Reflecting on Voting Rights, Employment Discriminiation and Gay Marriage

Posted by Peter M. Shane on June 27, 2013

Justice Kennedy’s opinion in United States v. Windsor immediately and deservedly now enters the canon of momentous Supreme Court human rights decisions. Historians and others will likely debate whether the Court’s disposal of the Prop 8 case on technical standing grounds — allowing same-sex marriage to proceed in California, but imposing no constitutional constraint on other states — was or was not the optimal outcome. The more optimistic view, of course, is that the Court’s restraint preserves the momentum of the gay rights movement without triggering the kind of political backlash that might have been engendered by a 5-4 decision holding prohibitions of same-sex marriage unconstitutional.

The political force of the Windsor and Perry cases, however, will be diminished by the Court’s evisceration of the Voting Rights Act in Shelby County v. Holder. A five-Justice majority held, in effect, that Congress could not constitutionally maintain a scheme designed to prevent and remedy racially discriminatory voting practices in the South because that scheme has apparently been successful in preventing and remedying at least some racially discriminatory voting practices. That conclusion, devastatingly refuted in Justice Ginsburg’s blistering dissent, is — to use her word — a stunning act of judicial “hubris.” The Fourteenth and Fifteenth Amendments explicitly give primary authority to Congress, not the Court, to determine the appropriate enforcement of their majestic guarantees. The Court’s determination that Congress just didn’t think hard enough about voting rights in 2006 to justify its latest extension of the Voting Rights Act is preposterous.

Shelby County also puts into context Justice Scalia’s vituperative DOMA dissent. He decries the Court’s “exalted conception” of its role in American life. He “promises” his readers that “T[he only thing that will ‘confine’ the Court’s holding [on DOMA vis-a-vis the larger question of same sex-marriage] is its sense of what it can get away with.” “It takes real cheek,” Scalia writes, “for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here–when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it.”

What makes this bluster so repugnant is that its author had no problem overturning a congressional act intended to preserve individual rights — the Voting Rights Act — that has been repeatedly and vigorously debated, was supported by successive bipartisan majorities in the national legislature, and which deprives not a single human being of life, liberty, or property. His fulmination, on the contrary, is on behalf of a statute that effectively did deprive married members of a political minority — men and women lawfully married under the laws of their respective states — of federal benefits potentially critical to their health and welfare.

It is also repugnant because Shelby County, in its determined obliviousness to America’s racial history, is of a piece with another Roberts decision Scalia supported — Parents Involved in Community Schools v. Seattle School District No. 1. In that 2007 case, a 5-4 Court held unconstitutional two school districts’ voluntary efforts to accomplish actual racial integration based on a reading of Brown v. Board of Education that was positively Orwellian. In Chief Justice Roberts’s world, the nastiness of racism is a thing of the past, apparently to be remedied on that rare occasion it may raise its ugly head only through case-by-case litigation, in which the laws of inertia clearly favor defendants, not targets of discrimination.

But it is important to see the DOMA and VRA cases, along with the week’s other civil rights decisions, in the same frame for yet another reason. The Court’s voting rights decision has now made it much harder for Democratic voters in the Deep South to achieve more progressive political representation.

Consider that the Supreme Court has now effectively left the definition of marriage for the determination of individual state legislatures. Likewise, in two employment discrimination cases this week, the Court has left it to Congress, our national legislature, to undo the Court’s ridiculously narrow understandings, respectively, of who qualifies as an employee’s supervisor and when retaliatory action against a sexual harassment claimant ought be actionable.

But, if Republican-controlled state governments in the South now wish to change their electoral systems to entrench their control of state government or to preserve a disproportionate share of their respective state delegations in Congress, it will be much easier to do so. As a formal matter, they will still be legally forbidden to adopt practices with the intent or effect of discriminating by race. Yet that legal guarantee will no longer be enforced through an efficient administrative process by the Justice Department. Individual voters, at their own expense and shouldering the burden of proof in litigation, will typically have to take the initiative (and the years of effort necessary) to challenge those practices. It won’t be pretty. Inertia again favors the bad guys, which is exactly what the Voting Rights Act sought to prevent.

In the Windsor and Perry cases, the Court has given Americans much to cheer. The Court has also left much, however, to a political process that the Court has befouled by taking the side of state rights against actual democracy.

Posted in Uncategorized | Tagged: , , , , , , , , , , , | Comments Off on How Full Is That Glass? Reflecting on Voting Rights, Employment Discriminiation and Gay Marriage

Occupy the Constitution

Posted by Peter M. Shane on October 13, 2011

The Occupy Wall Street movement has brought a level of energy and inspiration to participatory Left politics unseen since the 2008 Obama campaign and with, perhaps, yet more enduring potential.

Among admirers who are unfazed by the pathetic attempts at trivialization voiced by Republican politicians and their media propagandists, the chief anxiety seems to be the absence of a specific policy agenda around which to rally the citizenry.

If OWS is to become a lasting force, however, in American policy, its objectives have to go beyond policy proposals that aim at ameliorating our short-term economic distress. The movement has to try to reshape the institutions through which we conduct our politics. Government “of the people, by the people, and for the people” will remain an unlikely prospect as our political institutions are now rigged.

And there is simply no hope of doing the work that needs doing unless significant changes are made to the Constitution of the United States.

Larry Lessig has made an overwhelming case that money is corrupting our democracy. Money has that power, in part because the Supreme Court has interpreted the Constitution to protect plutocracy. But our Constitution, as interpreted by the Court, also lets transient majorities in state legislatures so finagle our legislative elections as to undermine genuine electoral competition. If our “representatives” don’t have to compete for our votes, their positions are quite unlikely to mirror our preferences.

Consider that, in the convulsive 2010 congressional mid-term elections, 87 percent of the incumbents who stood for election were re-elected — this, at a time when public approval of Congress was in the low 20s. If nearly nine out of ten incumbents get to keep their jobs even when the public hates their handiwork, what kind of democratic accountability do our elections actually provide?

It is commonly said that high rates of incumbent retention reflect a world in which voters despise Congress, but love their local representatives. There is, of course, another explanation: legislatures have stacked the deck in favor of protecting incumbents.

There are many ways in which our Constitution undermines democracy. The legislative disenfranchisement of the District of Columbia, the setup of presidential elections and the malapportionment of the Senate are all conspicuous examples. Yet, if recent history is a guide, changing any of these provisions — the makeup of the Senate could not be undone without a new constitutional convention — would be extremely difficult.

It should be less contentious, however, to rally around three ideas that ought to elicit widespread public support across a considerable political spectrum — undoing the constitutional protection for corporate spending, expanding the adult franchise so that all Americans can vote and authorizing the public funding of elections. Toward that end, I have appended below yet another draft of what a pro-democracy constitutional amendment could look like.

Rep. Jesse Jackson, Jr. wrote some years ago of his puzzlement that the American Right seemed always ready, willing and able to rally around proposed constitutional amendments, no matter how improbable — whether it’s a “Human Life” amendment, or a pro-school prayer amendment, or now an anti-gay-marriage amendment. Would it not seem more promising to organize the American people around a constitutional ideal in which people actually believe, namely, democracy?

To cement its role as a new anchor for the Left in American politics, OWS participants should endorse both policy proposals to increase economic fairness and prosperity in the short-term and constitutional changes that will restore government accountability as a meaningful aspiration in America.

DRAFT PRO-DEMOCRACY CONSTITUTIONAL AMENDMENT
Sec. 1. The freedom of speech shall not be construed to deny Congress authority to prohibit or otherwise regulate political contributions and expenditures by commercial, for-profit corporations for any federal office.

Sec. 2. The freedom of speech shall not be construed to deny authority to the States to prohibit or otherwise regulate political contributions and expenditures by commercial, for-profit corporations for any state or local office, or for any state or local referendum or initiative, within their jurisdiction, and or to delegate such regulatory authority for local offices, referenda and initiatives to the relevant local governments.

Sec. 3. No citizen of the United States who has reached the age of 18 may be denied the right to vote in any election for state or federal office or any referendum, initiative or similar ballot contest conducted in the state of which he or she is a duly registered domiciliary. No citizen of the United States who has reached the age of 18 may be denied the right to vote in any election for local office or any referendum, initiative or similar ballot contest conducted in a local jurisdiction of which he or she is a duly registered domiciliary. Any election regulation that has the purpose or effect of denying the right to vote that is not narrowly tailored to serve a compelling and legitimate government interest shall be unconstitutional. States shall adopt affirmative measures to ensure that citizens may conveniently exercise the rights guaranteed by this section.

Sec. 4. In districted elections for federal, state or local office, every citizen of the United States who has reached the age of 18 shall have the right to vote in a fairly apportioned district that implements the principle of one person, one vote and that has not been drawn substantially for the purpose of defeating political competition and preserving the majority status within that district of any political party.

Sec. 5. Congress may provide for the funding of elections in connection with any federal office. Should any candidate in a publicly funded federal election choose to decline public funding, Congress may permit adjustments to the subsidies provided other candidates according to the fundraising and spending of their privately financed opponents.

Sec. 6. States may provide for the funding of elections in connection with any state or local office. Should any candidate in a publicly funded state or local election choose to decline public funding, the state or relevant local jurisdiction may permit adjustments to the subsidies provided other candidates according to the fundraising and spending of their privately financed opponents.

Sec. 7. Congress may enforce the rights protected by this Amendment through appropriate legislation.

Posted in Uncategorized | Tagged: , , , , , , , , , | Comments Off on Occupy the Constitution

Are the People of Egypt Available for Freelance Democracy Building?

Posted by Peter M. Shane on February 11, 2011

Now that the people of Egypt have successfully ended the Mubarak regime, I’m wondering if they are available for freelance work.

For example, I am thinking of a nation whose capital is home to over 600,000 people, none of whom are represented by a voting member of their national legislature.

It is a country where about 16 per cent of the population is given control over half the seats in the upper house of that legislature – and can effectively block what a majority of citizens want. (Actually, it’s worse than that because a single legislator in that House can block legislation, and not even a majority can insist on a vote.)

It’s a country where the right to vote is not even in the national constitution. Its Supreme Court actually said that no one in the country has a constitutional right to vote for its President.

Of course, there are other ways of catapulting democracy. You can invade, as we did in Iraq. But when I consider the price tag for that effort, in both money and human life, the Egyptian plan looks way better.

And the country I’m thinking of is not even a dictatorship. If the Egyptians have 18 days to work their democratic genius, they could probably institute democracy in half that time and grab a week for a well-deserved vacation.

Posted in Uncategorized | Tagged: , , , , , | Leave a Comment »