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Carl P. Leubsdorf: John Roberts’ attack on minority voting

May 18, 2019

As is frequently the case, civil rights icon John Lewis had it right.

Testifying during John Roberts’ 2005 confirmation hearings, he called the nominee for Chief Justice “hostile towards civil rights, affirmative action and the Voting Rights Act,” warning against approving someone “whose record demonstrates a strong desire to reverse the hard-won civil rights gains that so many sacrificed so much to achieve.”

At the time, Roberts likened judges to impartial umpires calling balls and strikes and insisted, somewhat disingenuously, he was only carrying out the views of superiors in seeking to weaken the Voting Rights Act while a young Reagan administration staffer in the early 1980s. “Without access to the ballot box,” he said, “people are not in the position to protect any other rights that are important to them.”

In the 14 years since then, the smart, polished jurist who presides over the high court has become the leading edge of the Republican effort to undercut the expansion in minority voting and political power that stemmed from that landmark 1965 law.

In 2013, he wrote the majority opinion in a 5-4 Supreme Court decision that weakened the Voting Rights Act’s key enforcement mechanism. Last year, his court ratified GOP state efforts to “purge” voting rolls.

And a recent court hearing indicated that, in a different case, he seems likely to lead a majority in upholding the administration’s decision to include a citizenship question in the 2020 census. That would override the opinions of three federal judges and the census bureau’s own experts that asking about citizenship would limit Hispanic responses to the census, resulting in their reduced representation when new congressional and legislative districts are drawn.

If anyone doubts the political underpinning of all of these matters, consider the following:

Republican governors and legislatures have been responsible for virtually all of the enhanced voter identification laws and limits on measures encouraging voter participation like early voting. Even the conservative Republican judge who initially sanctioned the ID procedure has since conceded it discourages voting by minorities.Republican secretaries of state in contested states like Ohio and Georgia instituted registration roll purges that independent analyses said fell most heavily on areas with substantial minority populations.The acting Republican secretary of state in Texas sought to remove nearly 100,000 voters from the rolls on grounds they might be illegal immigrants, but did so in such an inept and inaccurate way the entire effort collapsed.Florida Republicans passed legislation aimed at limiting the action of voters in returning the franchise to more than 1 million formerly imprisoned felons by requiring them to pay all pending financial penalties first.A Republican administration wants to include for the first time in decades a census question asking respondents their citizenship, claiming the Justice Department sought it to help carry out the Voting Rights Act. That contention is widely disbelieved, given this administration’s hostility to the law that opened the way to expanded minority voting in many areas.

These efforts represent a 180-degree reversal of the support Republicans gave the Voting Rights Act when it was enacted in 1965 and for four subsequent decades. Their restrictive efforts have vastly expanded in the decade since a record outpouring of minority voters helped elect the nation’s first African-American president, Barack Obama.

John Roberts is, in a sense, the perfect face for such an effort. A brilliant law student and prominent appellate lawyer before his elevation to the U.S. Appeals Court in 2003, he is widely regarded as a serious jurist. He sought to convey an image of moderation at his confirmation hearings and has occasionally angered conservatives, notably in writing the 2012 ruling that upheld the Obama Affordable Care Act.

But on racial issues, Roberts has brought to the court the views he first expressed while working in the Justice Department in the early 1980s. As veteran court watcher Joan Biskupic points out in “The Chief,” her new biography of Roberts, he has never varied from his views at the time that the Voting Rights Act, as written, “excessively interfered with activities that the states should be able to regulate” and that it “should be narrowly interpreted” to focus on protecting individuals rather than groups.

He echoed those views in the majority opinion in the 2013 case ruling unconstitutional the landmark law’s provision requiring pre-clearance of voting law changes in states with a history of restrictive measures like Texas on grounds that the conditions that prompted it had been largely alleviated. But as soon as the decision was handed down, Texas officials reinstated the nation’s most restrictive voter identification requirements — previously blocked by Obama’s Justice Department — though later court rulings modified them somewhat.

That pattern is likely to persist, now that fellow conservatives Neil Gorsuch and Brett Kavanaugh have joined Roberts on the court.

A half century ago, a Republican chief justice, Earl Warren, presided over high court decisions that expanded minority voting rights. Now, as John Lewis presciently predicted, another GOP nominee, John Roberts, is taking it in the opposite direction.

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