Supreme Court Uses ‘Catch-22’ in Voting Rulings

You are only allowed to see the doctor if you are sick, but only the doctor can say if you are sick.  So you cannot see the doctor.

That’s a “Catch-22,” named after the famous novel by Joseph Heller in which this logic trap was hilariously and frighteningly described.

The latest Catch-22 has just come from the Supreme Court of the United States. In fact, in its recent decisions on the Voting Rights Act and an Arizona voter registration law, the Court used it twice.

The Voting Rights Act was passed in 1965 to give some teeth to the Fifteenth Amendment, which prohibits efforts to block voting on the basis of race.

Intended mainly to stop former Confederate states from preventing newly freed slaves from voting, it gave Congress the right to pass laws intended to enforce the Amendment.

Little happened for a century, mainly because Southern senators filibustered any proposal.  Then President Lyndon B. Johnson, a Texan, succeeded in getting the Voting Rights Act passed.

One part of that law says the U.S. Justice Department must approve in advance any changes to voting laws in nine Southern states and parts of other states, some in the North. The law contains the standards needed to get an OK.

In 2006, the law was renewed.  A Republican-controlled Congress voted for renewal by 390-33 in the House of Representatives and 98-0 in the Senate.  The bill was signed by President George W. Bush, also a Republican.

But the standards were not updated.  Some discrimination persisted, though it had taken new forms, such as efforts to suppress voting by members of minority groups.

Last month, by a 5-4 vote, the Supreme Court rejected prior approval of voting changes in affected states, finding that the standards that applied in 1965 were no longer needed and that Congress had not come up with new reasons for extending it.

Five justices decided that national policy adopted by an overwhelming majority of Congress, including senators from all of the affected states, should be tossed out because, in their view, it was outdated.

Justice Antonin Scalia had said in effect during the court proceedings that Congress couldn’t resist being politically correct, so it was up to the Supreme Court to make a decision that normally would be left to the legislative branch.

“Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political process,” he said later.  Instead, he implied there must be an unusual political process, unusual because the Court is not supposed to be political.

The decision did not go that far. It allowed the prior approval requirement for offending states, provided Congress sets new standards, which would presumably have to be approved by the Court.

Could Congress with a House of Representatives now controlled by strong conservatives adopt any new standards?  Would the Court approve any new standards? 

If the answers are “no,” as many observers believe, then the Court has produced an obvious Catch-22.

The Justice Department may still prosecute efforts to stymie minority voting.  Without prior approval, it may need to be more aggressive.

And rather than assuming the House will block anything, President Obama could propose new standards to see where Congress stands.

Congress recognized that some states were trying to reduce the number of minority voters by placing new obstacles in their way. It created the Election Assistance Commission to prepare a standard form stating what information may required from a person voting in a federal election.

Arizona added its own requirements, making it more difficult for a person to prove citizenship. Oddly enough, one target was Native Americans

The Court, in an opinion written by Scalia, overturned the Arizona requirement, leaving the EAC standards in effect.  If Arizona didn’t like them, it could appeal to the EAC, which it had failed to do.

The problem is that there is no EAC.  Congressional Republicans have blocked the appointment of all four members and, without them, there is no staff.

Because Arizona cannot appeal to the body set by law to handle such matters, the state faces another Catch-22.

However, if it cannot get a favorable EAC decision, the state could appeal the non-decision to court. 

The case could make its way up to the Supreme Court, and the justices – or at least five of them – might act in place of the EAC and overrule or expand the agency’s standards.

In the end, Arizona and other states seeking to make it more difficult for minorities to vote could get their way, thanks to Catch-22.