The Voting Rights Act, which, among other things, makes it a federal crime for anyone to intimidate voters (Amy!), has become very porous since the 5-4 Supreme Court ruling in Shelby County v. Holder (2013). The 1965 law recognized the ongoing need to deal with the new and ingenious forms of legal discrimination devious vote suppressors would devise in the future. Section five of the law required federal pre-clearance for any changes in voting laws that would have a disparate impact on different groups of voters in the state. It is Section Five, this federal review for bias and voter suppression, that John Roberts  and the four other right wingers on the Supreme Court did away with in 2013.
In that case the right-wing majority held that, in a “post-racial” society like ours, where racism no longer rages, the 1965 Voting Rights Act no longer requires constitutional pre-clearance before any state can change its voting laws to make them more restrictive. State voting laws are now presumed to be unbiased and in compliance with the Voting Rights Act, no matter how selective they seem or what the history of bias in the state might have been, absent proof of actual bias in a federal lawsuit. The ruling shifts the burden (and expense) for proving bias in election laws onto the citizens and off of the state.
This kind of subtle, yet in-your-face, curtailment of guaranteed rights is what Thomas Jefferson meant when he said “the price for democracy is eternal vigilance.” Dig it.
Texas is among the states that have gone to work since the anti-voter decision in Shelby County. The devil, as always, when devils do their devilish best, is in the diabolical details.
Here is Bill Moyers talking to election lawyer Ben Clements and John Bonifaz who are fighting ongoing cases against voter suppression. I’m going to break up this transcript with a few bold-face headlines (with a “fuck you” shout-out to WordPress engineers for their excellent work in making this all but impossible)
BILL MOYERS: I see that you’re involved in a case in Texas involving the Voting Rights Act concerning a safe and secure election during the pandemic. What’s that about?
BEN CLEMENTS: So the case challenges a number of laws and policies in Texas that particularly as they’ve been implemented during the pandemic have made it very, very difficult for people to vote safely. And the key part of the law that we are currently seeking to have the district court in San Antonio strike down is the governor’s mask mandate order.
The governor of Texas issued a mandate in an order last July requiring masks to be worn in almost all public places in Texas with just a handful of exceptions. But one of the exceptions, oddly enough, was for polling places.
So it specifically says that voters are not required to wear masks when voting or when standing in line to vote. Poll workers are not required to wear masks. And so if you want to go vote safely in person you have no choice but to risk being exposed to other voters and to poll workers.
And the secretary of state has issued further guidance saying that the poll workers can require the voter to take their mask off when showing their identification. So essentially, requiring voters to go face to face with a poll worker that does not have a mask on, and you take your own mask off. Now, this is all compounded by the fact that Texas is among the very worst states for providing alternatives to voting in person.
They do not allow you to vote by mail unless you have a medical or other health necessity. And fear of contracting COVID-19, Texas authorities have said, does not qualify. They make it very difficult to vote curbside if you can get yourself into the polls physically, then you’re not permitted to vote curbside.
So for the vast majority of Texans, they have no choice, if they want to vote, but to go do so in person. And as a result of this exemption in the governor’s order, to do so by exposing themselves, potentially for a long period of time because Texas also has very, very long lines in many of their counties and this claim is also under the Voting Rights Act. And particularly, as a discriminatory exemption. Because as we know COVID-19 affects Blacks and Latinos much worse than it does white people in terms of the likelihood of being infected and in terms of the severity and the risk of death if they are infected. And it’s been pretty well documented that that is all of the result of underlying, systemic racism in this country. And particularly in Texas. So we’re awaiting an order from the judge. We’re hopeful that he will order the exemption removed so that people are required to wear masks at the polls.
BEN CLEMENTS: I don’t think there’s any question that on one level, it’s extremely political. I mean, the only justification that the state can come up with for this exemption is their claim that some people just don’t want to wear a mask. It’s not just the poll workers who are exempt. Voters are exempt. And so if you want to go vote without a mask, because you don’t care about possibly infecting other people, you’re entitled to do that in Texas. And the Texas authorities claim that they need to do that because people should have the right to go vote without a mask if they want to. Now, that decision that they are more concerned about protecting the interest of someone who feels that it’s a personal affront to have to put on a mask than they are in protecting those people who feel that it’s not just a personal affront, but a risk to my safety and my health and possibly my life to be exposed to these people who won’t put a mask on, that they have made that choice.
The position of the good, Republican authorities in Texas, doing their best to get their candidate back into the White House, is that since wearing a mask offends some people, nobody will be required to wear one and if you want to vote safely then — be a pussy, stay home and don’t vote:
“That decision [to not require masks during voting] that they are more concerned about protecting the interest of someone who feels that it’s a personal affront to have to put on a mask than they are in protecting those people who feel that it’s not just a personal affront, but a risk to my safety and my health and possibly my life to be exposed to these people who won’t put a mask on, that they have made that choice…”
That shit speaks for itself.
BILL MOYERS: How much has the Voting Rights Act been hurt by that decision of the Supreme Court, enabled, inspired by John Roberts? Who, as a young member of the Department of Justice, wrote a memorandum to his bosses laying out a strategy for undoing the Voting Rights Act that he then, once on the Supreme Court, began to implement?
JOHN BONIFAZ: He started very early during the Reagan Justice Department. He did not want President Reagan at the time to extend the Voting Rights Act. He lost that battle as a young attorney in the Reagan Justice Department. But then, of course, he ascended to the Supreme Court. And in the Shelby County case in 2013, he invalidated Section 5. And what we’ve seen as a result is a sweeping set of voter suppression laws and restrictions throughout the South, throughout the areas that were subject to Section 5 preclearance, including states like Texas.
BEN CLEMENTS: That decision in Shelby that gutted Section 5 and other decisions in other areas such as Affirmative Action, Justice Roberts has been animated by this idea that racism in this country is not a problem anymore. That we don’t need Section 5 of the Voting Rights Act because those states that used to engage in suppression of non-white people’s votes don’t do that sort of thing anymore. And the very painful irony is in his insistence on gutting these efforts, he has helped usher in a resurgence of systemic racism and and in particular, voter suppression often on racially-based lines as a result of some of his rulings.