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    A Supreme Court Test for What’s Left of the Voting Rights Act

    AdvertisementContinue reading the main storySupported byContinue reading the main storyA Supreme Court Test for What’s Left of the Voting Rights ActWhile state legislatures consider new voting restrictions to address claims of election fraud, the justices will hear arguments on what kind of legal scrutiny such laws should face.The Supreme Court has never considered how a particular provision of the Voting Rights Act of 1965 applies to policies that restrict the vote.Credit…Anna Moneymaker for The New York TimesFeb. 28, 2021, 12:24 p.m. ETWASHINGTON — As Republican state lawmakers around the nation are working furiously to enact laws making it harder to vote, the Supreme Court on Tuesday will hear its most important election case in almost a decade, one that will determine what sort of judicial scrutiny those restrictions will face.The case centers on a crucial remaining provision of the Voting Rights Act, which prohibits voting practices that discriminate on the basis of race. Civil rights groups are nervous that the court, now with a six-justice conservative majority, will use the opportunity to render that provision, Section 2, toothless.The provision has taken on greater importance in election disputes since 2013, when the court effectively struck down the heart of the 1965 law, its Section 5, which required prior federal approval of changes to voting procedures in parts of the country with a history of racial and other discrimination.But Chief Justice John G. Roberts’s majority opinion in the 5-to-4 decision, Shelby County v. Holder, said Section 2 would remain in place to protect voting rights by allowing litigation after the fact.“Section 2 is permanent, applies nationwide and is not at issue in this case,” he wrote.But it is more than a little opaque, and the Supreme Court has never considered how it applies to voting restrictions.The new case, Brnovich v. Democratic National Committee, No. 19-1257, was filed by the Democratic National Committee in 2016 to challenge voting restrictions in Arizona. Lawyers for civil rights groups said they hoped the justices would not use the case to chip away at the protections offered by Section 2.“It would be just really out of step for what this country needs right now for the Supreme Court to weaken or limit Section 2,” said Myrna Pérez, a lawyer with the Brennan Center for Justice, which submitted a brief supporting the challengers.Civil rights lawyers have a particular reason to be wary of Chief Justice Roberts. When he was a young lawyer in the Reagan administration, he unsuccessfully worked to oppose the expansion of Section 2, which had initially covered only intentional discrimination, to address practices that had discriminatory results.The Arizona case concerns two kinds of voting restrictions. One requires election officials to discard ballots cast at the wrong precinct. The other makes it a crime for campaign workers, community activists and most other people to collect ballots for delivery to polling places, a practice critics call “ballot harvesting.” The law makes exceptions for family members, caregivers and election officials.“I can’t believe the court would strike down common-sense election integrity measures,” Mark Brnovich, the state’s attorney general, said in an interview. In his brief, he wrote that “a majority of states require in-precinct voting, and about 20 states limit ballot collection.”Whether the particular restrictions challenged in the case should survive is in some ways not the central issue. The Biden administration, for instance, told the justices in an unusual letter two weeks ago that the Arizona measures did not violate Section 2. But the letter disavowed the Trump administration’s interpretation of Section 2, which would limit its availability to test the lawfulness of all sorts of voting restrictions.Section 2 bars any voting procedure that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race.” That happens, the provision goes on, when, “based on the totality of circumstances,” racial minorities “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”Dissenting in the Shelby County case, Justice Ruth Bader Ginsburg said Section 2 was not nearly as valuable as Section 5.A polling site in Phoenix in 2016. The case, Brnovich v. Democratic National Committee, was filed by the Democratic National Committee that year to challenge voting restrictions in Arizona.Credit…Max Whittaker for The New York Times“Litigation occurs only after the fact, when the illegal voting scheme has already been put in place and individuals have been elected pursuant to it, thereby gaining the advantages of incumbency,” she wrote. “An illegal scheme might be in place for several election cycles before a Section 2 plaintiff can gather sufficient evidence to challenge it. And litigation places a heavy financial burden on minority voters.”While Section 5 was available, Section 2 was used mostly in redistricting cases, where the question was whether voting maps had unlawfully diluted minority voting power. Its role in testing restrictions on the denial of the right to vote itself has been subject to much less attention.But Paul M. Smith, a lawyer with the Campaign Legal Center, which submitted a brief supporting the challengers, said lower courts had worked out a sensible framework to identify restrictions that violate Section 2.“It is not enough that a rule has a racially disparate impact,” he said. “That disparity must be related to, and explained by, the history of discrimination in the jurisdiction. Our hope is that the court will recognize the importance of maintaining this workable test, which plays an essential role in reining in laws that operate to burden voting by Blacks or Latinos.”The two sets of lawyers defending the measures in Arizona did not agree on what standard the Supreme Court should adopt to sustain the challenged restrictions. Mr. Brnovich, the state attorney general, said the disparate effect on minority voters must be substantial and caused by the challenged practice rather than some other factor. Lawyers for the Arizona Republican Party took a harder line, saying that race-neutral election regulations that impose ordinary burdens on voting are not subject at all to challenges under Section 2.Last year, the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled that both Arizona restrictions violated Section 2 because they disproportionately disadvantaged minority voters.In 2016, Black, Latino and Native American voters were about twice as likely to cast ballots in the wrong precinct as were white voters, Judge William A. Fletcher wrote for the majority in the 7-to-4 decision. Among the reasons for this, he said, were “frequent changes in polling locations; confusing placement of polling locations; and high rates of residential mobility.”Similarly, he wrote, the ban on ballot collectors had an outsize effect on minority voters, who use ballot collection services far more than white voters because they are more likely to be poor, older, homebound or disabled; to lack reliable transportation, child care and mail service; and to need help understanding voting rules.Judge Fletcher added that “there is no evidence of any fraud in the long history of third-party ballot collection in Arizona.”In dissent, four judges wrote that the state’s restrictions were commonplace, supported by common sense and applied neutrally to all voters.Lawmakers were entitled to try to prevent potential fraud, Judge Diarmuid F. O’Scannlain wrote. “Given its interest in addressing its valid concerns of voter fraud,” he wrote, “Arizona was free to enact prophylactic measures even though no evidence of actual voter fraud was before the legislature.”The appeals court stayed its ruling, and the restrictions were in place for the election in November.Mr. Brnovich will argue before the justices on Tuesday in the case that bears his name. He said the Ninth Circuit’s approach “would jeopardize almost every voting integrity law in almost every state.”Leigh Chapman, a lawyer with the Leadership Conference on Civil and Human Rights, which filed a brief supporting the challengers, said the Supreme Court faced a crossroad.“Especially in the absence of Section 5,” she said, “Section 2 plays an essential role in advancing the federal commitment to protecting minority voters and ensuring that they have an equal opportunity to participate in the political process.”AdvertisementContinue reading the main story More

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    We Need a Second Great Migration

    AdvertisementContinue reading the main storyOpinionSupported byContinue reading the main storyWe Need a Second Great MigrationGeorgia illuminates the path to Black power. It lies in the South. Follow me there.Opinion ColumnistJan. 8, 2021A young supporter at a rally for Raphael Warnock and Jon Ossoff in Atlanta in December.Credit…Damon Winter/The New York TimesATLANTA — A year ago this week, I packed some bags and left New York City for Atlanta.I’d lived in New York for 26 years. The city made me feel awake and alive — buildings tickling the sky, trains snaking underfoot. There was a seductive muscularity to the city, a feeling of riding the razor between your destiny and your demise.I had become a New Yorker, a Brooklyn boy. There I had raised my children. There I planned to live out my days.But the exquisite fierceness of the city, its blur of ambition and ingenuity, didn’t hide the fact that many of my fellow Black New Yorkers were locked in perpetual oppression — geographically, economically and politically isolated. All around the North, Black power, if it existed, was mostly municipal, or confined to regional representation. Black people were not serving as the dominant force in electing governors or senators or securing Electoral College votes.Bryan Stevenson, the executive director of the Equal Justice Initiative, calls migrants of the Great Migration “refugees and exiles of terror.” By extension, many Black communities in Northern cities, abandoned by the Black elite and spurned by white progressives, have become, functionally, permanent refugee camps.I had an idea to change that. An idea about Black self-determination. Simply put, my proposition was this: that Black people reverse the Great Migration — the mass migration of millions of African-Americans largely from the rural South to cities primarily in the North and West that spanned from 1916 to 1970. That they return to the states where they had been at or near the majority after the Civil War, and to the states where Black people currently constitute large percentages of the population. In effect, Black people could colonize the states they would have controlled if they had not fled them.In the first census after the Civil War, three Southern states — South Carolina, Mississippi and Louisiana — were majority Black. In Florida, Blacks were less than two percentage points away from constituting a majority; in Alabama, it was less than three points; in Georgia, just under four.Credit…Library of CongressBut the Great Migration hit the South like a bomb, siphoning off many of the youngest, brightest and most ambitious. In South Carolina, the Black share of the population declined from 55 percent to about 30 percent. Over six decades, six million people left the South.Reversing that tide would create dense Black communities, and that density would translate into statewide political power.Generally speaking, mass movements are largely for the young and unencumbered. Moving is expensive and psychologically taxing, displacing one from home, community and comforts. But I believe those obstacles are outweighed by opportunity. All who are able should consider this journey. That, it became clear, included me.I chose Atlanta because many of my friends were already there, having moved to the “hot” Southern city after college, and because I saw Georgia as on the cusp of transformational change. Little did I know that this election cycle would be a proof of concept for my proposal.In November, Georgia voted blue for the first time since Bill Clinton won the state in 1992. A majority of those who voted for Joe Biden were Black. This week, Georgia elected its first Black senator in state history — indeed the first popularly elected Black senator from the whole South: Raphael Warnock, a pastor at Ebenezer Baptist Church in Atlanta, where Martin Luther King Jr. once preached. Georgia also elected its first Jewish senator — only the second from the South since the 1880s: Jon Ossoff.The Rev. Raphael Warnock on Tuesday.Credit…Lynsey Weatherspoon for The New York TimesPerhaps most striking, the Warnock win was the first time in American history that a Black senator was popularly elected by a majority-Black coalition. It was a momentous flex of Black power.It was jarring to see that news almost immediately overshadowed by the vision of white rioters marauding through the Capitol on Wednesday. It was an affront, an attack. We must remember that while modern wails of white power may be expressed by a man in face paint and furs shouting from a purloined podium, Black power must materialize the way it did in Georgia.The success of the Democratic Party’s gains there were in part due to a massive voter enfranchisement effort led by Stacey Abrams, the former candidate for governor, whose group Fair Fight helped register 800,000 new voters in the state in just two years. But it was also attributable to a rise in the state’s Black population.In the early 1990s, Black people constituted a little over a quarter of the population; now they constitute about a third of it. The Atlanta metro area saw an increase of 251,000 Black people between 2010 and 2016. In 2018, The Atlantic magazine described this area as the “epicenter of what demographers are calling the ‘reverse Great Migration’” of Black people to the South.Credit…Sheila Pree BrightBiden carried the state by only around 12,000 votes. With this election, Georgia became the model for how Black people can experience true power in this country and alter the political landscape.I realize that I am proposing nothing short of the most audacious power play by Black America in the history of the country. This may seem an odd turn for me. I am not an activist. I am a newspaperman. I interpret. I bear witness.The moment that I realized that I could be more than an observer came in 2013. I was at the Ford Foundation for a series of lectures on civil rights when Harry Belafonte addressed the room. He spoke in a low-but-sure raspy voice, diminished by age, but deepened in solemnity. He was erudite and searing, and I was mesmerized. He posed a question: “Where are the radical thinkers?”That question kept replaying in my head, and it occurred to me that I had been thinking too small, all my life, about my approach to being in the world. I realized that a big idea could change the course of history.This proposition is my big idea.Many of the issues that have driven racial justice activists to organize and resist over the last few years — criminal justice, mass incarceration, voting rights and education and health policies — are controlled at the state level. The vast majority of people incarcerated in America, for example, are in state prisons: 1.3 million. Only about a sixth as many are in federal prisons. States have natural resources and indigenous industries. Someone has to control who is granted the right to exploit, and profit from, those resources. Why not Black people?Of course questions — and doubts — abound about such a proposal. Questions like: Isn’t the proposal racist on its face?No. The point here is not to impose a new racial hierarchy, but to remove an existing one. Race, as we have come to understand it, is a fiction; but, racism, as we have come to live it, is a fact. After centuries of waiting for white majorities to overturn white supremacy, it has fallen to Black people to do it themselves.I am unapologetically pro-Black, not because I believe in Black supremacy, which is as false and reckless a notion as white supremacy, but rather because I insist upon Black equity and equality. In a society and system in which white supremacy is ubiquitous and inveterate, Black people need fierce advocates to help restore the balance — or more precisely, to establish that balance in the first place.My call for Black power through Black majorities isn’t intended to exclude white people. Black majority doesn’t mean Black only. Even in the three states that once held Black majorities after the Civil War — South Carolina, Mississippi and Louisiana — those majorities were far from overwhelming, peaking at 61 percent, 59 percent and 52 percent.Nor does a majority-Black population mean a Blacks-only power structure. There are cities in the Northeast and Midwest, like Detroit, Philadelphia and Saint Louis, that have a Black majority or plurality and yet have white mayors. The point is not to create racial devotion, but rather race-conscious accountability.Others have objected: Isn’t the North just better for Black people than the South?Many Black people are leery of the South, if not afraid of it. They still have in their minds a retrograde South: dirty and dusty, overgrown and underdeveloped, a third-world region in a first-world country. They see a region that is unenlightened and repressive, overrun by religious zealots and open racists. The caricatures have calcified: hillbillies and banjos, Confederate flags and the Ku Klux Klan.To be sure, all of that is here. But racism is more evenly distributed across the country than we are willing to admit.It is true that in surveys, people in the North express support for fewer racially biased ideas than those in the South, but such surveys reveal only which biases people confess to, not the ones they subconsciously possess. So I asked the researchers at Project Implicit to run an analysis of their massive data set to see if there were regional differences in pro-white or anti-Black prejudice. The result, which one of the researchers described as “slightly surprising,” was that there was almost no difference in the level of bias between white people in the South and those in the Northeast or Midwest. (The bias of white people in the West was slightly lower.)White people outside the South are more likely to say the right words, but many possess the same bigotry. Racism is everywhere. And if that’s the case, wouldn’t you rather have some real political power to address that racism? And a yard!For decades Northern liberals have maintained the illusion of their moral superiority to justify their lack of progress in terms of racial equality. The North’s arrogant insistence that it had no race problem, or at least a minimal one, allowed a racialized police militarism to take root. It allowed housing and education segregation to flourish in supposedly “diverse” cities. It allowed for the rise of Black ghettos and concentrated poverty as well as white flight and urban disinvestment.Credit…Joshua Lott for The New York TimesThe supposed egalitarianism of Northern cities is a flimsy disguise for a white supremacy that diverges from its Southern counterpart only in style, not substance.And, while the North has been stuck in its self-righteous stasis, the savagery of the South has in some ways softened, or morphed. I am careful not to position this progress as fully redemptive or restorative. White supremacy clearly still exists here, corrupting everything from criminal justice to electoral access. The “New South” — with its thriving Black middle class and increasing political power — is still more aspiration than reality.But the wishful idealizing of a New South is no more naïve than a willful blindness to the transgressions of the Now North. As the author Jesmyn Ward wrote in 2018 in Time about her decision to leave Stanford and move back to Mississippi, American racism is an “infinite room”: “It is the bedrock beneath the soil. Racial violence and subjugation happen on the streets of St. Louis, on the sidewalks of New York City and in the BART stations of Oakland.”Protesting against police brutality in New York in June.Credit…Demetrius Freeman for The New York TimesBlack people have traversed this country in search of a place where the hand of oppression was lightest and the spirit of prosperity was greatest, but have had to learn a bitter lesson: Racism is everywhere.Finally: Won’t this idea encounter powerful opposition, even from liberals?Well, when has revolution ever been easy? When has a ruling class humbly handed over power or an insurgent class comfortably acquired it? Revolution, even a peaceful one, is frightening, and dangerous, because those with power will view any attempt at divestiture as an act of war.The opposition will most likely manifest in many ways. There will no doubt be opposition from the Black Establishment in the North, and those in the political class whose offices will be in jeopardy if the Black populations in their cities shrink.This is a very real concern. There may be some fluctuation in Black political representation during the course of a reverse migration, and, in the beginning, positions added in the South may not balance out those lost in the North. This is a function of how political machines operate, the way regions are gerrymandered, the way parties horse-trade, the way the establishment grooms ascendant stars, and the way voter suppression is inflicted. But, in the end, the benefit and abundance of Black political power would be to the good.Even some white liberals, those who call themselves allies, may shrink from the notion of Black power, drawing a false equivalence to the concept of racial superiority espoused by the white power movement. They recoil from the very mention of Black power even as they live out their lives in a world designed by and for white power, not only the hooded and hailing, but also the robed and badged.Others may simply mourn the notion of a path to Black equality that doesn’t feature a starring role for white liberal guilt, one that doesn’t center on their capacity for growth and evolution, but skips over them altogether.Still others may simply hesitate because it sounds like I’m throwing in the towel on the grand experiment of multiculturalism. I sought for months to put this proposal to Bill Clinton, someone I thought had deftly navigated the racial minefields in the South. I got my chance in the wee hours of a summer night on Martha’s Vineyard in 2019. He responded with curiosity but not endorsement. The lack of approval was not deflating, because it had not been requested. Black people need no permission to seek their own liberation.The idea received a more enthusiastic reception from the Rev. William Barber, the father of the Moral Monday civil rights protests, who in 2018 reactivated the Poor People’s Campaign, the multiracial project Martin Luther King was organizing when he was assassinated. Barber, a staunch believer in what he calls “fusion coalition” and cross-racial alliance, pointed out that most of the people who marched with him in the Moral Monday protests were white. And yet he was open to the concept of reverse migration.Atlantans gathered outside the Georgia State Capitol building in June.Credit…Alyssa Pointer/Atlanta Journal-Constitution, via Associated Press“From state up is the only way,” he told me. “If you change the South, you change the entire nation.” This is not surprising coming from Barber, whose own parents were reverse migrants who moved back South to fight racism.All these objections are to say nothing of the backlash to come from conservatives, of course. One lesson that history teaches is that the system reacts forcefully, often violently, when whiteness faces the threat of a diminution of its power. And that’s exactly what we saw in this week’s storming of the Capitol by supporters of the white power president Donald J. Trump, in concert with his efforts to overturn the election.For 150 years, Black Americans have been hoping and waiting. We have marched and resisted. Many of our most prominent leaders have appeased and kowtowed. We have seen our hard-earned gains eroded by an evolving white supremacy, while at the same time we have been told that true and full equality was imminent. But, there is no more guarantee of that today than there was a century ago.I say to Black people: Return to the South, cast down your anchor and create an environment in which racial oppression has no place.As Frederick Douglass once wrote about escaping slavery, “I prayed for 20 years but received no answer until I prayed with my legs.”Black people must once again pray with their legs.This is an adaptation from the forthcoming, “The Devil You Know: A Black Power Manifesto.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook and Twitter (@NYTopinion), and Instagram.AdvertisementContinue reading the main story More

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    Knocking on Two Million Doors in Georgia

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    Electoral College Results

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