Lies the government told you

by Andrew P. Napolitano

  The Fifteenth Amendment, Voting Rights Act,

  and Racial Gerrymandering

  In 1870, the United States ratified the Fifteenth Amendment, which prohibits voting discrimination “by the United States or by any State on account of race, color, or previous condition of servitude.”31 The governments in the South did not adhere to this amendment and did much to prevent blacks from voting.32 Literacy tests were administered to disqualify the substantial black population that could not read or write.33 Property requirements were also implemented to prevent blacks from voting.34

  Furthermore, Southern governments used various districting techniques to dilute the African-American vote. One of these techniques is “cracking,” in which the legislature split a large number of black voters among several majority-white voting districts.35 The same governments also engaged in “packing,” in which a significant number of African-Americans were placed in one district, thus limiting black representation in that part of a State to that district only.36

  The Southern States continued to disobey the law, and the federal government permitted them to do so until Congress finally passed the Voting Rights Act of 1965. Section 2 of the Act, as amended in 1982, states that “no voting qualification or prerequisite to voting or standard, practice or procedure shall be imposed or applied by any State or political subdivision in a manner which will result in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”

  Therefore, according to the Act, complainants need only prove that a voting plan had the effect of discriminating against minorities, not that it was devised with the intent to discriminate.

  Today, the concern is not whether African-Americans actually have the right to vote, but whether they are adequately represented.37 To ensure adequate representation for African-Americans (and other minorities), many States have redrawn congressional district lines based on race, through a process called racial gerrymandering, to create “majority-minority” districts.38 In this way, States can guarantee representation for minorities. But isn’t this a government decision based on race; and was not the Fourteenth Amendment written to abolish that? In Shaw v. Reno (1993), the United States Supreme Court held that redistricting based on race is subject to the highest standard of judicial scrutiny under the Equal Protection Clause of the Fourteenth Amendment, but the States still may take race into account to comply with the Voting Rights Act.39

  Shaw v. Reno tells us that racial gerrymandering is constitutional if the plan is “narrowly tailored to serve a compelling state interest.” Could any racial gerrymandering plan, regardless of its lawfulness, be constitutional today? Majority-minority districts are unnecessary, particularly due to the advances African-Americans have made in this country.40 Conservative whites do not vote for black candidates, particularly in the South, not because they are racist, but because the liberal views associated most with African-Americans are not attractive to conservative whites, regardless of the candidate’s color.41 Furthermore, the existence of majority-minority districts reinforces racial differences, when the goal of the Voting Rights Act and Civil Rights Movement was to achieve color blindness and equality.42

  The 2008 presidential election is further evidence that racial gerrymandering is unnecessary.43 Barack Obama did not win an overall majority of white votes, but no Democrat since Lyndon B. Johnson in 1964 has won the majority of the white vote.44 Obama captured 43 percent of the white vote, a slightly higher percentage than that of Al Gore (42 percent) in 2000, and John Kerry (41 percent) in 2004.45 In Iowa, which has a negligible black population, 5 percent of voters said that race was the most important factor in the election.46 However, 54 percent of Iowans voted for Obama.47 Obama achieved similar results in Minnesota and Wisconsin, states that are also predominantly white.48 This data shows that black candidates can win elections, even in majority-white areas. In fact, as early as 1990, 40 percent of the black members of Congress did not come from majority-black districts.49

  Another major problem with racial gerrymandering is that it involves blatant government manipulation of people. Legislators redistrict all the time to achieve desired results. They group people together based on how they think they will vote. There is something fundamentally wrong with this tactic; it is unconstitutional, it is manipulative, it is patronizing, and it infringes upon all citizens’ right to vote.

  Collectivism is a political theory that favors the group over the individual. It is a philosophy diametrically at odds with the American concept of individual liberty and limited government. According to Ayn Rand, “[c]ollectivism holds that man must be chained to collective action and collective thought for the sake of what is called ‘the common good.’” By engaging in racial gerrymandering, legislatures are operating under the false and dangerous premise that all members of a particular race will support a similar candidate, and promoting collectivist ideals, thus “chaining” individuals to their respective races.

  The right to vote in America is an individual right, not a collective one; one may vote because one is a citizen, and at least eighteen years old, not because one belongs to a group the membership in which is some immutable characteristic of birth. On Election Day, we select our representatives by secret ballot, and we choose our candidates based on their ability to protect our individual rights, not the rights of the group of people with which we most closely identify. (Though surely, many voters are more interested in voting for a Robin Hood than a Thomas Jefferson.) Most of us choose not to reveal the candidates we voted for, and it is considered rude to ask another directly how he or she voted.

  Racial gerrymandering takes the individual out of the voting process, and divides large groups of individuals into smaller voting blocs based on race. Legislatures create “majority-minority” districts to ensure that the African-American community, or the Hispanic community, or the Italian-American or Irish-American or Jewish-American communities receive fair representation, not the individual African-American or Hispanic or Italian-American or Irish-American or Jewish-American voter. It is true that certain groups typically vote the same way, but it is not a government’s job to assume that the “common good” will be served if it artificially groups people so as essentially to rig election results. Individuals should decide, and let the chips fall where they may.

  If the purpose of the Fourteenth and Fifteenth Amendments was to remove race from the government’s weapons, racial gerrymandering has nullified that purpose.

  An “Unpopular” Decision

  I opened this chapter with one of the most contentious voting events of our history, where the Supreme Court essentially decided the result of the 2000 presidential election. The Supreme Court’s decision in Bush v. Gore is so disheartening not because Vice President Al Gore received over 539,000 more popular votes than Governor Bush, but because the Supreme Court disregarded not only the fundamental right to vote, and in turn kept us from discovering the true winner (whoever it may have been),50 but it assaulted federalism by denying the State of Florida the ability to manage its mechanisms of voting and interpreting its own laws.

  The contested 2000 presidential election involved a series of legal proceedings. For the purpose of this discussion, we’ll pick up the story in early December 2000. At this point, the Secretary of State of Florida, Katherine Harris, had certified the election for Governor Bush. On December 4th 2000, in the case of Gore v. Harris, a local judge in Tallahassee, Florida, upheld Harris’s certification, and rejected any further recounts, concluding that a recount would make no difference. Gore appealed to the Florida Supreme Court, which on December 8th, ordered a manual recount of all “undervotes” that had not yet been counted. An “undervote” in the context of this case was a ballot where the counting machine failed to register a preference in the race. Approximately 60,000 Florida undervotes were outstanding at this time. Bush then appealed to the United States Supreme Court, asking the Court to stay the recount. The Court, ruling by 5 to 4, granted
the stay and heard oral arguments on the merits of the case on December 11th. On December 12th, the Supreme Court decided, again 5 to 4, to stop the recounts because the standards applied in the recounts were not uniform across the state, and would result in unequal treatment of votes and thus fundamental unfairness.51

  The Court’s decision to hear this case stemmed from the majority’s political affiliation; their self-interest in the election cannot be denied. Each of the five justices in the majority, to different extents, was affiliated, or had been affiliated, with the Republican Party. Justice Sandra Day O’Connor, a native Arizonan, is a Republican who typically referred to Republicans as “we” and “us.”52 She served three terms in the Arizona State Senate and also served as co-chairperson of the Arizona state committee to elect Richard Nixon president.53 O’Connor was also an old friend of the Bush family.54 She played tennis with Barbara Bush, and admired George W. Bush.55 In fact, she spent election night at a party hosted by Republicans, and was heard saying, “This is terrible,” when the networks had called the election for Gore.56 According to her husband, Sandra was ready to retire to Arizona, but did not want to give up her seat to a Democratic president.57

  Chief Justice William Rehnquist campaigned for Barry Goldwater in 1964, and in 1962, provided legal advice to Republicans working to challenge Democratic voters’ credentials at a Phoenix, Arizona, polling station.58

  Justice Anthony Kennedy was considered a “Sacramento lawyer-lobbyist,” who voluntarily traveled the State of California campaigning for then-Governor Ronald Reagan’s anti-tax initiative.59

  Justice Clarence Thomas’s wife worked for the Heritage Foundation, a conservative organization, to manage Bush’s transition to the White House.60

  Two of Justice Antonin Scalia’s sons worked for law firms representing George W. Bush.61 I mean this thumbnail personal, political history not as an assault on the Republican members of the Court, some of whom—at this writing—I am privileged to call personal friends. And I cannot overlook the pre-judicial Democratic political activities of Justice Ruth Bader Ginsburg and Justice Stephen Breyer. And I am mindful of the incendiary admission of Justice William O. Douglas that “up there [at the Supreme Court] no one is neutral.”62 Nevertheless, whether the justices’ intentions were good or bad, pure or impure, constitutional or political, Bush v. Gore was an assault on federalism and freedom.

  The justices’ political motivation was also evident from the decision itself. Conservative judges typically claim to have a strong belief in the concept of federalism, and want us to believe that they will exercise deference to state governments when applicable. They also tend to assail liberal “activist” judges for not practicing judicial restraint and essentially legislating from the bench. Here, however, the conservatives acted out of character. Until Bush v. Gore, neither the Supreme Court, nor any other federal court, had ever enforced a uniformity rule in the counting of ballots.63

  Furthermore, every State has varying methods of casting and counting votes; this issue was not unique to Florida. Florida election law required that the votes be counted to determine the “intent of the voter.” The Florida Supreme Court, perhaps somewhat haphazardly, ordered manual recounts to ascertain voter intent. (You may recall the “hanging chad” and “pregnant chad” news stories of that time.) The United States Supreme Court, however, essentially overruled the Florida Supreme Court’s determination, claiming the recount process violated the Equal Protection Clause.

  The more disturbing part is that the Supreme Court did not seek to remedy the Equal Protection violation. According to the Court, uniform standards could not be set before the federal deadline for Florida to certify its results. The deadline happened to be December 12th, the date on which the decision was rendered. Therefore, the Supreme Court deemed the recounts unconstitutional, yet in the end proceeded to ignore the 60,000 undervotes, rather than allow the Florida Supreme Court to attempt to resolve the situation.

  As icing on the cake, the Supreme Court further stated, in its opinion: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”64 The Court, however, is not supposed to decide complex issues that involve politics, especially when the State involved in the suit has already made a decision.

  Furthermore, no Supreme Court decision is “limited to the present circumstances.” It is true that the Supreme Court decides cases, and does not actively make law, but its decisions establish precedent applicable to future cases. Moreover, even if the Court’s decision did not extend to future circumstances, it did damage to its own legitimacy and the legitimacy of the 2000 presidential election, and disenfranchised 60,000 American voters. And the winner of that election certainly did not confine his exercise of presidential power “limited to the present circumstances.” Bush v. Gore literally had limitless effect on the lives of six billion human beings; and the Court ought to have known that.

  But Who Really Cares?

  The Supreme Court’s decision in Bush v. Gore was a travesty, but even if we had discovered the true winner, the two-party system would still dominate American politics, limiting voter choice and the development of third parties.

  No matter what they say, Democrats and Republicans in the United States do not control the government because they are best able to serve us and meet our needs. In fact, both parties couldn’t care less about us. The United States government, as stated earlier, is not a democracy. In fact, some would argue that it is not even a republic, since our leaders do not actually work for us. Some believe that the United States government is actually an oligarchy in which just a few thousand people, “mostly in government, finance, and the military-industrial complex, run this country for their own purposes.”65 These powerful people seek to preserve their power by manipulating the mainstream media, controlling campaign finance money, and thus nominating candidates who will work for them, regardless of their party affiliation.

  Democrats and Republicans, controlled by powerful interests, work to preserve their power. Both parties promote “changing Washington,” but in reality, they like Washington just the way it is: little gets done that they don’t like, and none of our officials are truly held accountable. If we don’t seek to change the system, the Republican Party will always be the party that claims it does not want to govern, and the Democratic Party will always pretend to govern.

  The 2008 presidential election is a great example of the two-party monopoly putting forth two candidates who were substantially the same. Senator John S. McCain, a “Republican” from Arizona, and Senator Barack Obama, a “Democrat” from Illinois, spoke ad naseum about the “fundamental disagreements” between them. After following the campaign closely, listening to the speeches, and watching the debates, it was still difficult for me to come up with issues on which the two candidates truly disagreed. Both candidates oppose gay marriage, at least so long as they are politicians. Obama hoped that the Iraq War would end during his presidency, while McCain ran on the idea that the “surge” was working. President Obama currently has plans to shift American involvement in Iraq to Afghanistan.

  Both candidates supported bigger and more powerful government; not just Obama. McCain stated that he supported “smaller” government, but chose to “suspend” his campaign in September 2008 (He did no such thing; it was a PR stunt) after the fall of Lehman Brothers, Fannie Mae, and Freddie Mac, to go to Washington and vote for the first of many massive, bailout packages. That package authorized the borrowing or printing and spending of over one trillion dollars on the same government-motivated, get-rich-quick schemes that produced the crisis.

  Both Obama and McCain thought that it would be nice to decrease the national debt, and both viewed lower taxes as better for Americans than higher ones. Moreover, I do not think the Federal Reserve Bank was discussed publicly even once by either candidate during the campaign, let alone plans to audit, reform, or abolish it.

  They both
approved TARP funds for struggling companies and supported the federal takeover of education, Medicare prescription drug benefits, and the burdensome Sarbanes-Oxley Act.

  Moreover, Obama and McCain still endorse the unconstitutional, liberty-restricting Patriot Act, which, while not making us safer, invades our natural rights. Both candidates opposed the legalization of marijuana, although Obama stated he was open to the use of marijuana for medicinal purposes.

  On abortion, Obama and McCain seemingly disagreed. Obama is pro-choice, and believes that having an abortion is “one of the most fundamental rights we possess.”66 McCain claims to oppose abortion. Throughout the campaign, he denounced the Supreme Court’s decision in Roe v. Wade, and vowed to nominate Supreme Court justices who would overturn it. Yet, in August 1999, McCain stated, “[C]ertainly in the short term, or even in the long term, I would not support repeal of Roe v. Wade, which would then force X number of women in America to undergo illegal and dangerous abortions.”67 I do not doubt that McCain is personally pro-life, but his stance against abortion is not nearly as realistic as his campaign made it out to be.

  In selecting their running mates, both Obama and McCain chose candidates whom they hardly knew. John McCain asked then-Governor Sarah Palin of Alaska to be his running mate just six months after meeting her for the first time.68 Before inviting her to his home in Sedona, Arizona, to offer her the job formally, McCain had only spoken to Palin once on the phone about the position.69 Obama, who had only been a Senator for two years prior to the start of his presidential campaign, chose veteran Senator Joe Biden as his running mate. The two colleagues appeared to be good friends, but it is clear that Obama picked the experienced Biden merely to counter his image as a young, naïve candidate.

  We did not hear about the similarities between the two candidates, however, because the campaign was not about real issues that matter to people. I think we will remember Reverend Jeremiah Wright much better than Obama’s proposed healthcare plan. At one point during the campaign, it seemed for a moment that William Ayers was Obama’s running mate. We will all remember that John McCain has more than one house, but most likely fewer than ten.