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states, should be tossed out because, in their view, it was outdated.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.