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Has the Supreme Court's Voting Rights Decision Ended Hope for CIR? By Roger Algase

Rating: 3 votes, 5.00 average.
I very much want to believe that the House of Representatives will come around and pass CIR within the next few months and that 11 million people will soon be given a fair and realistic opportunity for legalization and eventual permanent residence and US citizenship.

I also want to believe that the badly needed streamlining in our legal immigration system contained in the Senate-passed CIR bill, S. 744, will also take place. Like most other immigration supporters, I find it difficult to imagine that a reform which has such wide support among so many different interests in both parties - including business groups, labor unions, and evangelicals - and which is backed up by compelling objectives such as racial equality, family unity and humanitarian considerations - not to mention having the likely support of a majority of the House members, if both parties are included (as Chris Musillo points out in the August 26 ID) could possibly fail.

So when I read all the doom and gloom about CIR's chances - including some of my own previous blogging posts - I really want to believe: No! CIR can't be allowed to fail! As in the famous "Black Sox" baseball scandal almost 100 years ago, I want to shout: "Say it ain't so, Joe!"

Besides, there are encouraging stories in the mainstream media about how immigration opponents are not making as much noise or showing up at rallies in as great numbers as expected during the August recess.

See, for example, Jennifer Rubin's August 22 Washington Post column: Immigration Reform Survives August and Molly Ball's August 27 article in the The Atlantic: Immigration Reformers are Winning August.

Everything we need for reform to succeed is in place, it seems - except the support of anywhere near the majority of House Republicans which Speaker John Boehner needs to bring CIR to the House floor, if he has the slightest intention of keeping a job which he has no apparent wish to give up.

But everything else looks great for reform, we are told - except for the minor detail of other influential House Republicans such as Judiciary Committee Chairman Bob Goodlatte, who is against a pathway to citizenship for all but the few unauthorized immigrants who might be qualified through "normal channels", who talks about making legalization itself dependent on achieving impossible to fulfill enforcement goals first, and who seems determined to avoid a Senate-House conference at all costs.

Not to worry, the optimists tell us. Give it time. October is just around the corner. If nothing happens then, there is always next January - and beyond. (Of course, there will also be a minor distraction next year known as an election campaign, but hey, we have to be optimistic no matter what, don't we?) Somehow, even the House Republicans will eventually come around, and maybe a few of them might already be thinking of doing so - one day.

Besides, demographics are on the side of reform, and no one can win a fight with history.

I have very great admiration and respect for the optimists - I share their vision of reform, and I earnestly hope that they will be proven right and I will turn out to be as totally wrong as anyone could possibly be about whether CIR will pass any time soon.

But there is one nagging source of doubt over the chances for immigration reform that we cannot wish away - namely the Supreme Court's decision this past June striking down Section 4 of the 1965 Voting Rights Act.

All discussion of immigration reform has to begin with the fact that 71 percent of Latino voters chose to re-elect President Obama in the 2012 election, just as Euclidian geometry must start with the proposition that two parallel lines can never meet. Otherwise, there is no point in having a conversation.

(OK, I don't know if Euclidian geometry really starts with that - I was a terrible high school math student - but I do know that there is no Euclidian geometry without it - there may be other types.)

If Latinos - and Asians - had not turned away from the Republicans in droves last year, we would not be talking about any realistic chance for immigration reform this year. Senator Lindsey Graham (R-SC) would not be warning about how the GOP is in a "demographic death spiral", and there might not even have been any bipartisan Gang of Eight, let alone 14 Republican votes to pass CIR in the Senate.

Yes, there were a few people like Ann Coulter and other far right extremists who argued that the Republicans don't need minority voters, only more white ones, but it was hard to wave away the 2012 election results. That is, until this June's Supreme Court Voting Rights Act decision.

But after the Supreme Court struck down the most powerful and effective part of the 1965 Voting Rights Act - Section 4 pre-clearance - the unthinkable question arises - what happens if Latinos, African-Americans and other minorities don't vote in future elections - because they can't vote?

Then why would Republicans need to support immigration reform any more?

We have all assumed that even without Section 4, the Voting Rights Act still has some teeth in it. The US Department of Justice only needs to work a little harder to bring lawsuits against bigoted voter ID laws and other types of voter suppression scams in many Republican states and everything will be fine, or so the conventional thinking goes.

But an August 26 POLITICO article Obama's big voting rights gamble challenges this easy assumption and raises questions which could, among other things, put the entire concept of immigration reform in jeopardy, now and for the foreseeable future.

The link is:

dyn.politico.com/printstory.cfm?uuid=B60376A6-C96B-4947-8BB0-B7D677E74B02

POLITICO's argument is that the remaining section of the VRA which the Justice Department apparently intends to use in forthcoming lawsuits against Republican voter suppression laws in Texas, North Carolina and perhaps other states, Section 2, may be too weak to be effective.

POLITICO writes that even though Section 2 bans voting laws or practices which result in discrimination against minority voters, there could be obstacles to winning lawsuits based on this section:

"Until now, the Justice Department hasn't used Section 2 to challenge voter ID laws like the one in Texas - the provision has mostly been used in lawsuits against at-large elections. Hasen [Rick Hasen, a University of California - Irvine Law Professor and Editor of the Election Law Blog] says it will be an uphill battle for the department: The Supreme Court has generally upheld voter ID laws, and other courts have read Section 2 narrowly."


POLITICO also writes:

"Spencer Overton, a law professor at The George Washington University who served as a deputy assistant attorney general under Holder, says it's tough to predict the outcome because Section 2 'is well-tailored to address discriminatory redistricting, but is not tailored to address other discriminatory voting devices, like barriers to the ballot."

POLITICO also quotes another election law professor, Rick Pildes of New York University, as suggesting that the Justice Department may be overlooking protections against voter discrimination outside the VRA, such as in the 14th Amendment.

Texas and North Carolina are not the only Republican states which have rushed to impose draconian voter suppression measures in the wake of the Supreme Court decision. POLITICO reports that four other Republican states have enacted voter ID laws this year, and one state, Indiana, has strengthened an existing law.

If immigration supporters want CIR to succeed, we will have guard against complacency or wishful thinking about reform, and become more knowledgeable about voter discrimination law.

The biggest danger to immigration reform is that House Republicans may be expecting that voter suppression measures against minorities in many states will allow the GOP to take over the Senate in 2014 and the White House in 2016. As long as that is a realistic possibility, there is little motivation for Republicans, who depend on white voters for their base, to support CIR. Why should they?

If Latino, African-American, and other minorities, as well as normally Democratic-leading younger or less affluent Americans, are not allowed to vote, it might not be the GOP that could be in a "death spiral", but hope for immigration reform instead.

In an upcoming post, I will look at Section 2 of the Voting Rights Act in more detail, along with court decisions dealing with that Section.









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Updated 08-27-2013 at 10:09 AM by ImmigrationLawBlogs

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