US Supreme Court, Elections and Equality

The U.S. Supreme Court’s focus on minority voting rights on June 25 started an intense debate across the Atlantic, while it practically went un-noticed on this side of the ocean. Decided on the same day as the ruling that supports the right to marry “for all” in the United States, the ruling on the Voting Rights Act deserves attention since it brings forth the problem of the means at a government’s disposal to fight racism and all other forms of discrimination.

Let us remember the goal of the VRA was to prevent certain U.S. states from adopting measures that exclude African-Americans at the ballot, and now Latino-Americans, as well as women in disadvantaged areas.

It is not a coincidence that this law, promoted by Lyndon B. Johnson, was adopted in 1965, in the wake of demonstrations for civil rights. Founded in the 15th amendment of the American Constitution, which prohibits all limitations on the right to vote and eligibility on the basis of race or skin color, it required nine states, considered as having racist pasts, to submit their electoral law initiatives for clearance authorization from the U.S. Department of Justice. Hence it is an established preventative system.

Because, in fact, political ingenuity has shown itself fruitful in the matter of alienating “undesirable” voters from the ballots through the obligation to submit to reading and writing exercises, register several times, send complicated forms to be registered or present a certain type of form for identification. Other practices, like gerrymandering, or dividing districts in order to redraw the contours of an electoral district in a way that black minorities, for instance, are swallowed up in the mass of voters, have also been used.

To fight this, the law on voter’s rights was applied with outstanding efficiency. Between 1983 and 2006, the DOJ has blocked more than 700 discriminatory legislative initiatives. Moreover, when the DOJ chooses to request an explanation from the state in question, the latter generally modifies its initiative to avoid its rejection.

The results: There are now just as many citizens who vote — black and Latino-American minorities and women in America — as there are in the other categories of voters. Furthermore, they present themselves increasingly with success to elections, witnessed in an explosive way at Barack Obama’s election.

Why remove a system that works? That is the question. This is what the Supreme Court just did with five voices against four, following the current line of separation between liberal and conservative judges. Yet this law on the right to vote was adopted on a bipartisan basis by Democrats and Republicans. And it is on that same basis that this law — which originally was intended to last five years — was continually renewed for 25 years, until the last time in 2006 — under George W. Bush’s presidency.

It must be noted that, since the departure of Sandra Day O’Connor from the Supreme Court in 2006, the court often rules with very conservative options. O’Connor, the first woman appointed to the U.S. Supreme Court by Ronald Reagan, is the one who allowed the court to take more liberal positions on questions concerning women’s rights, and particularly minorities. She had what we call the “swing vote,” for which the political orientation was not predetermined.

Today the votes of the five judges considered conservative are almost always predictable on most subjects, which is how this majority struck down the essential part of the VRA, which framed the competence of certain states to define conditions for the electorate and eligibility.

Striking down this law was an occasion for the Court to reaffirm the sovereignty of the American states against the federal government, to the detriment of the protection of liberties. But the court especially wanted to demonstrate that it was time to expunge the racist part of American history. The ruling clearly indicates, in this respect, that controlling electoral laws in the nine states with a racist past makes no sense today. As soon as there is equality in the number of black or Latino-American and other voters, and women vote as much as men, and a growing number of them gain access to elected office, the law would become pointless! Thus — it can be inferred — it was necessary for Obama’s election to the presidency.

This is not convincing, and I strongly advise those who are interested to read the dissenting opinion of Ruth Bader Ginsburg, a remarkable judge appointed by Bill Clinton, who describes very well the bad practices that should never have been repeated here and there. This dissenting opinion was endorsed by the two other women on the court — appointed by Obama — and by Steven Breyer, appointed like Ginsburg by Bill Clinton; and like her, he is perfectly knowledgeable on France. No comment.

In spite of the Supreme Court striking down the law, discriminatory voting laws can still be contested through the justice system. However, petitioners in this case will have to wait for years before their appeal is addressed.

For us French and Europeans, this affair brings forward a two-pronged lesson:

On the one hand, we should not consider abolishing anti-discriminatory laws too hastily, and this is the case in France, where equality laws involving the place of women in society are in the process of changing.

On the other hand, if it is not too risky to compare the European Union to the federal American government, take note that on the matter of laws and liberties, Europe can be ahead of its member-states, and that the fight against all forms of discrimination is a part of its founding project.