Monday, January 02, 2012

The Tenth Amendment Is Not A Suicide Pact

Rick Santorum is right, you know.

More on that later.     For now, let's congratulate the Department of Justice, which on December 23 officially notified the Deputy Attorney General of the State of South Carolina that the Justice Department was denying approval of South Carolina's new voter photo ID law. South Carolina is one of only five states required, because of their history of racial discrimination, by Section 5 of the 1965 Voting Rights Act to obtain "pre-clearance" from the DOJ or a three-judge panel in Washington for voting requirements.

In a 2009 case, Northwest Austin Municipal Utility District Number One vs. Eric Holder, Chief Justice Roberts, delivering the opinion of the Court, wrote "the preclearance requirement represents an intrusion into areas of state and local responsibility that is otherwise unfamiliar to our federal system.      While the South Carolina law appears headed back to the High Court, Jeffrey Toobin summarizes the critical role played by the Voting Rights Act, regardless of state of residence:

The Justice Department action in South Carolina underlines the continuing necessity for the Voting Rights Act, nearly four decades after it was first passed. The South Carolina law is part of a wave of new rules, passed in the wake of the 2010 Republican landslide purportedly to stop vote fraud, that limit the right to the franchise.

As many independent studies have found, “voter fraud” is a cure in search of a disease. There is no significant voter-fraud problem in the United States. Rather, these laws are transparent attempts by Republican majorities to stifle and suppress the number of minorities and poor people (mostly Democrats) who go to the polls. Thanks to the Voting Rights Act, the Justice Department has the tools to stop this travesty—at least in states like South Carolina, which are still subject to “pre-clearance.”

Whether states imposing new requirements (and Holder has implied that the Department will challenge new laws in states not covered by the 1965 law) are doing so because they believe their legislators believe the NBA is unjustifiably dominated by blacks (inaccurate and accurate, respectively) or because they recognize that racial minorities mostly cast their votes for Democrats (accurate, and more likely the motivation) should not be controlling.       Either way, the laws should not be tolerated, inasmuch as they are intended to have a particular, and adverse, effect on black citizens.        

Notably, individuals will be allowed to vote in caucuses throughout Iowa tonight without having to show identification, pursuant to rules established by the state Democratic Party. Brad Friedman observes "since only Republicans are on the IA Republican Caucus ballot, unlike general elections, the GOP has no interest in disenfranchising their own voters."      He states the obvious:  "Polling place photo ID laws, passed in states where Republicans took control in the wave election of 2010, are instituted for one purpose and one purpose only: to suppress the votes of voters such as the elderly, minorities and students, all of whom have a dastardly tendency to vote for Democratic candidates rather than Republicans."
Perpetrators of racial discrimination ought not to be able to hide behind the cloak of "states rights."      But neither should the adversaries in the matter of same-sex marriage.      Rick Santorum has at least one thing right, having recently told MSNBC's Chuck Todd, according to Think Progress,  "I think marriage has to be one thing for everybody.    We can't have 50 different marriage laws in this country."

Instead, of course, we have the Defense of Marriage Act, which defines marriage as the union of a man and a woman (Section 3)  and authorizes states to refuse to recognize same-sex marriages performed in another state (Section 2).       Lawsuits have been filed challenging DOMA as violative of  the full faith and credit clause in Article IV, Section 1 of the U.S. Constitution and the Holder Justice Department has announced its refusal to defend Section 3 of the law in court.     

Meanwhile, efforts are underway in the U.S. Congress to repeal DOMA.       The momentum toward granting the right of same-sex marriage throughout the country may be brought to climax or, as Santorum wishes, a constitutional amendment barring the unconventional practice may be enacted (though that appears highly unlikely).      Either way, however, this issue, as well as preserving the right to vote free of restrictions imposed by Republican partisans, calls for aggressive, definitive, federal action, whatever the annoyance to states rights purists.    

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