Some good news came out of Washington Tuesday.

Sound unlikely? That's because the news comes from the STATE of Washington, where the Ninth Circuit Court of Appeals essentially struck down the state's felon disenfranchisement law because it's racially discriminatory and violates the federal Voting Rights Act.

The case, Farrakhan v. Gregoire, has been in the federal courts since 1996, when the plaintiffs -- all minority citizens who had been convicted of felonies -- sued the state, claiming that the disenfranchisement law discriminated on the basis of race because Washington disproportionately prosecutes and sentences minorities. They produced some compelling social science research to show that disparities in Washington's rates of criminal investigation, vehicle searches, arrest, bail recommendations, and confinement could not be explained by "legitimate" factors, such as the higher rate of minority involvement in criminal activity. Rather, the court concluded, the state's criminal justice system is riddled with racial discrimination at every stage.

Amazingly, the state didn't dispute the social science evidence, but merely claimed that, even assuming its validity, it is legally insufficient to sustain the plaintiffs' claim under the Voting Rights Act that the felon disenfranchisement law results in the denial of the right to vote on account of race. The court disagreed.

So now what?

Unfortunately, three other federal appeals courts that have taken up this issue have said that the Voting Rights Act does not apply to felon disenfranchisement laws at all, so residents of those regions cannot even mount such a challenge. Felon disenfranchisement laws are literally "all over the map" in this country. Two states, Virginia and Kentucky, permanently bar citizens with felony convictions from voting unless the governor intervenes. Some states make certain felonies subject to disenfranchisement, but not all felonies. Some states require the prisoner to serve his sentence before restoring rights, while others add parole time and any ordered restitution as prerequisites. Two states, Maine and Vermont, allow voting even from prison.

The Democracy Restoration Act of 2009, pending in both houses of Congress, would establish a uniform minimum standard so that millions of eligible American voters who have been released from prison may participate in civic life in their communities. The right to vote is simply too important to allow accidents of geography and confusion by election officials to erect barriers to the ballot box. Maybe the good news from Washington State is just the right nudge to get some action from Washington, DC.

[A version of this post was initially published at Project Vote's blog here.]

With only two days left in office, Governor Tim Kaine has the power to rid Virginia of its last official vestige of Jim Crow and join the 48 other states that restore (or never remove) voting rights for persons with felony convictions. So now is the time for you to tell Governor Kaine to do the right thing.

Approximately 300,000 Virginians with felony convictions who are no longer in prison and are not on probation or parole are barred from voting for life. Kentucky is the only other state with such a punitive disfranchisement policy; all other states have realized that prohibiting so many people from voting is unjust and counterproductive.

Under the Virginia Constitution, an individual's right to vote must be restored by an executive act of the Governor. Currently those seeking to have their rights restored must apply to the Governor's office, but the application process is both daunting and subjective -- the Governor has the authority to reject any application regardless of how spotless the applicant's post-conviction record may be. We recently learned, for example, that the Governor has an unwritten policy of turning down applicants solely because they have speeding tickets.

When he leaves office this Saturday, Governor Kaine will have restored voting rights for about 4,500 individuals -- a mere drop or two in Virginia's bucket of 300,000 disfranchised persons.

Virginia's disfranchisement law is a hold-over from the Jim Crow era. Indeed, at the 1901-02 Virginia Constitutional Convention, where felony disfranchisement, poll taxes, literacy tests and appointed school boards were either perpetuated or established, one delegate explained: "This plan will eliminate the darkey as a political factor in this State in less than 5 years, so that in no single county ... will there be the least concern felt for the complete supremacy of the white race in the affairs of government."

The remnants of this racially-tinged policy are still clear today. While 6.8 percent of Virginia's voting age population as a whole is disfranchised, 19.8 percent of the state's African-American voting age population -- approximately 200,000 individuals -- is barred from voting.

Restoring the right to vote after full completion of sentence is the fair, just and American thing to do. Almost certainly, the vast majority of formerly incarcerated individuals in Virginia are tax-paying members of their communities who have jobs and raise families. Yet, they can't vote.

Restoring voting rights is also the pragmatic thing to do. Studies indicate that individuals with criminal convictions who vote are half as likely to be re-arrested as those who don't. Is there anyone who is opposed to lowering the crime rate?

The question of the governor's authority to issue a blanket executive order restoring the voting rights to all or some categories of individuals with criminal convictions has been raised and definitively answered in the affirmative. Under Article V, Section 12 of the Virginia Constitution, the governor's executive clemency powers include the authority to remit fines and penalties, to grant pardons, to remove political disabilities that result from a conviction (such as voting rights), and to commute capital punishment

When the governor exercises executive clemency, the same article requires him to communicate "the particulars of every case" to the General Assembly, but only when remitting fines and penalties, granting pardons and commuting capital punishment. The removal of political disabilities is not listed among the clemency actions that must be submitted one at a time to the General Assembly. This is a plain reading of the Virginia Constitution that requires no historical or legal interpretation.

A broad alliance of Virginia's civil rights and faith-based groups -- including the NAACP, the League of Women Voters, the Catholic Conference, the ACLU, and the conservative Rutherford Institute -- has been in meetings with the Governor and his staff over the last month to discuss issuing an executive order to automatically restore voting rights for most or all of Virginia's formerly incarcerated. Based on the time the Governor has devoted to this issue, it is clear that he understands its importance. But so far he is only saying he is considering the matter.

With only two days left in office the time for consideration has passed and the time for action must begin. Governor Kaine can and must join the ranks of former Iowa Governor Tom Vilsack and Florida Governor Charlie Crist by using his executive power to expand democracy in Virginia. With the stroke of a pen, he can restore voting rights to all Virginians who have finished their sentence, and can put in place a process for automatically restoring rights to others who complete their sentence in the future. Please contact Governor Kaine and urge him to act now!

Ohio state officials have agreed to settle a lawsuit that will require greater efforts by government officials to register low-income voters. The lawsuit brought by the Lawyers' Committee for Civil Rights Under the Law and other public interest groups was based on Sec. 7 of the National Voter Registration Act (NVRA), which requires social services and other government agencies to register voters. In their lawsuit, Harkless v. Brunner, the Lawyers' Committee and the other groups argued that the Ohio Department of Jobs and Family Services (DJFS) offices were registering only a tiny percentage of their clients and that then-Secretary of State Kenneth Blackwell was not taking action to adhere to Section 7. The settlement filed in federal court in Cleveland requires state officials to ensure that low-income people are given the chance to vote. A statement from the Lawyers' Committee says the settlement will require the DJFS to "integrate voter registration directly into the benefits application and recertification process, as well as institute broad-ranging training, reporting and oversight procedures." 

In an Issue Brief recently released by ACS, Estelle Rogers analyzes the history of the NVRA, and maintains that state and federal officials have not done enough to enforce primary sections of the law, such as Section 7. Rogers, the consulting attorney at Project Vote, writes that state election officials must do more to uphold "their responsibilities under the NVRA." Rogers' Issue Brief, "The National Voter Registration Act: Fifteen Years On," is available here.

The National Voter Registration Act (NVRA) has sputtered in removing hurdles to voter registration and the Obama administration and state election officials must renew their efforts to bolster the law, writes Estelle Rogers in an Issue Brief released by ACS.

Congress passed the NVRA, in part, to increase voter registration and to prod government to encourage voting. When it was enacted, the NVRA was "heralded as a landmark law that would usher in a new era of universal or nearly universal, enfranchisement and political participation," Rogers states in "The National Voter Registration Act: Fifteen Years On."

But Rogers, the consulting attorney at Project Vote, maintains that while the law has produced some successes, it is hobbled by poor implementation and execution of some its key provisions.

Rogers writes:

Without question, the least successful provision of the NVRA is the requirement that social service agencies and offices serving the disabled provide voter registration services similarly to motor vehicle offices. While this requirement was a promising way of reaching out to citizens who didn't interact with DMVs, such as those too impoverished to drive or own cars, the reality has not measured up to the promise. This disappointing track record is due to widespread non-compliance with the mandates of Section 7 and a failure of enforcement by the Department of Justice, particularly in recent years, not with any lack of clarity in the statute itself.

Section 8 of the NVRA states, "Each state shall insure that any eligible applicant is registered to vote ... and conduct a general program that makes a reasonable effort to remove the names of ineligible voters." But Rogers, says that provision has also been hampered by officials.

"The registration administration provisions of Section 8 are, for the most part, drafted clearly but nevertheless have been widely ignored," she writes. "Significantly increased awareness and enforcement of these provisions is necessary to fulfill the potential of Section 8."

Federal and state officials' leadership is needed to improve the NVRA, Rogers maintains. The Justice Department, in particular, must "provide much needed guidance and enforcement of sections 7 and 8." And state election officials, she writes, must aggressively approach "their responsibilities under the NVRA." For example, Rogers says that states' top election officials should ensure that election administrators "do not impose unreasonable restrictions on registration drives, and that motor vehicle, disability, and social service agencies consistently fulfill their duties under NVRA."

Download a pdf version of Rogers' Issue Brief here and for additional analysis of the law, see her ACS guest blog here. 

Recently retired Supreme Court Justice David Souter's papers from his service on the nation's high court have been turned over to the New Hampshire Historical Society where they won't be made public until 2059. Former Supreme Court correspondent for The New York Times Linda Greenhouse, in a recent column the newspaper's op-ed page, lamented the decision to keep the papers under wraps for decades to come.

Although Greenhouse, a member of the ACS Board of Directors, wrote that she tried to convince herself that she really "didn't care" about missing out on examining Souter's papers, she thought of some high court mysteries that she would love to crack.

Greenhouse wrote:

In the interests of space, I will mention just one of these mysteries, from the court's last term.

It is the surprising outcome of the big Voting Rights Act case, in which the court had undertaken to decide whether Congress exceeded its authority in renewing the requirement for some states and jurisdictions, mostly in the South, to obtain federal approval before making any change to a voting procedure, however minor. This "preclearance" provision, Section 5 of the act, was the key to the law's effectiveness over three decades in expanding and preserving minority voting rights.

The court's opinion, by Chief Justice Roberts, ducked the constitutional issue on the ground that the small Texas sewer district that brought the case might be entitled to "bail out" of the law and so might have nothing to complain about. This was an implausible outcome, to put it mildly, because the statute's text actually made the sewer district and other small jurisdictions like it ineligible to escape the law's provisions.

Chief Justice Roberts has won praise in some quarters for a statesmanlike, "minimalist" solution to a hot-button constitutional problem. I have strong doubts as to whether the praise is deserved. My belief is that he would have gone as far in the direction of declaring Section 5 unconstitutional as he could have and still hold a majority.

The court surely did not accept this case for argument (as opposed to simply affirming the law's constitutionality, as the Bush administration had urged) in order to decide whether the Northwest Austin Municipal Utility District No. 1 was entitled to bail out. I suspect that a member of the once-eager majority, perhaps Justice Anthony M. Kennedy, got cold feet, and that one or more of the liberal justices, maybe even Justice Souter, brokered a deal that allowed the court to extricate itself from a tight spot. My evidence for this theory? Along with evidence for any other theory, it will be locked in a vault in Concord, N.H.

The National Voter Registration Act (NVRA) has been a disappointment. When the statute was passed in 1993, the civil rights community hailed it as the capstone of the "voting rights revolution" begun by the Voting Rights Act of 1965. In a new report from Project Vote, "The National Voter Registration Act at Fifteen," voting rights attorney Estelle Rogers hones in on several of the most important provisions of the NVRA and finds their impact far less dramatic than expected. Despite the promise of the NVRA, voter registration problems were frequently cited as THE ISSUE marring the 2008 election, just as hanging chads were in 2000 and long lines in 2004.

The NVRA was enacted in response to the shocking statistic that 44 percent of the eligible electorate did not vote in the 1992 presidential election. The legislation's sponsors believed that making it easier to register would eliminate one major barrier to low participation in the future. The primary means Congress chose to increase the number of registered voters was to mandate that registration be offered at places not generally used for that purpose, such as motor vehicle offices and public assistance and disability agencies. Actually, "motor voter" was the original concept. Other agencies were only added later, at the urging of voting rights advocates, who recognized that a broad swath of the American public-particularly low income and minority citizens-does not interact with the DMV at all.

Unfortunately, these other agencies have been treated as the poor stepchildren of the law ever since. Enforcement of the states' obligation to offer registration at public assistance, disability and military recruitment offices has been woefully inadequate. One disability rights activist, who was "present at the creation" of the NVRA, remarked recently that he has not yet displayed the "signing pen" given to him by President Clinton because the law has not yet been meaningfully implemented. But he's hopeful that a new era of enforcement has begun and that his pen will come out of the mothballs soon.

Another big obstacle to realizing the potential of the NVRA is the seemingly limitless creativity of the states when it comes to inventing mechanisms to squelch voter registration drives. The law recognized that these drives would be an effective way to reach out to traditionally disenfranchised communities. But some states have required registration workers-often volunteers from church or community groups-to be deputized or made official agents of the state. Others have prohibited applications from being submitted in a group or required detailed filings with the state before a registration drive could begin. Still others have imposed tight deadlines of 3 or 5 days for the submission of applications, even though the DMV and agencies have 10 days to transmit applications to the state.

"Purging" also received a lot of attention in the 2008 election. The NVRA sets clear and explicit standards for when a voter may be dropped from the rolls, but these standards are widely misunderstood and/or ignored, leading to wholesale purges of eligible voters, often because they haven't voted regularly. Not surprisingly, this was a common occurrence in 2008, when large numbers of African Americans were voting for the first time in many years. Erroneous purges have also led to the disenfranchisement of many voters mistakenly confused with ineligible (in many states) convicted felons, notably a 2004 Florida "match" process in which 15 percent of those dropped from the rolls were not felons at all.

While the NVRA has fallen far short of the great expectations surrounding its passage, several simple fixes could go a long way toward fulfilling its goals. The key word here is leadership. First, the Department of Justice is charged with enforcement of the law. A few strategic lawsuits, for example against states whose agencies are not in compliance, would undoubtedly have a "trickle-down" effect. Experience has shown that states' agency registration rates skyrocket after litigation, and more aggressive enforcement in this area will show dramatic results in the defendant state and send a message to other states as well.

The Department of Justice also has the authority to issue guidance to the states, telling them what will and what will not be considered compliance with the NVRA. Such gentle persuasion might help recalcitrant state election officials to understand all of the NVRA's requirements with respect to agency registration, purging, and registration drives, among others.

Leadership by state election officials will also have a profound impact. When the mandates of the law are obeyed--

1. when state employees are properly trained,
2. when election officials are not given unbridled discretion to interfere with legitimate registration drives, and 
3. when agencies are made to understand that voter registration is part of their mission and not an optional activity

--then increases in the number of registered voters and in the diversity of the electorate are sure to follow.

If the NVRA were finally vigorously enforced and properly interpreted, this 15-year old statute could well be the transformative law that its authors envisioned.
As the debate swirls around "universal registration," "automatic registration," "internet registration," and many other ambitious proposals, we would do well to remember that the NVRA remains an underutilized but powerful tool for the expansion of our democracy.

In the Supreme Court's recent decision in Northwest Austin Municipal Utility District Number One v. Holder, Justice Clarence Thomas filed a dissent concluding that the Court should have found a major provision of the Voting Rights Act, Sec. 5, to be unconstitutional. None of the other justices joined Thomas' dissent, and the majority decided the case without reaching the constitutional issue.

Charles S. Johnson, a partner at Holland & Knight and board president of the Southern Regional Council, in a post for the southernchanges blog wrote:

In the course of his opinion, Justice Thomas acknowledged the history of coordinated intimidation and violence which prevented people from voting during the Jim Crow era. He acknowledged that this campaign of violence was eventually supplemented and in part replaced by more subtle methods of discrimination, such as discriminatory literacy tests and voter qualification laws. He acknowledged that case-by-case voting rights litigation in the years prior to the adoption of the Act was inadequate to ensure that all citizens were able to vote.

According to Justice Thomas, however, the kind of discrimination which previously justified Section 5 no longer exists. As proof, he noted that the systematic campaigns of intimidation and violence are gone, as are the discriminatory voter qualification laws. Although Congress had taken note of ‘second generation barriers' constructed to exclude minority voters, Justice Thomas concluded that evidence of such barriers was not sufficient to justify the continued use of Section 5.

Contrary to Justice Thomas' assertion, barriers to voting continue to be erected in jurisdictions covered by Section 5. Evidence of these barriers is described in the Congressional record and in a recent study by the Southern Regional Council. This evidence demonstrates ongoing attempts to dilute and diminish minority voting strength, including restrictions on registration and voting, discriminatory annexations and de-annexations, high school diploma requirements for holding office, discriminatory consolidations, and relocation of polling places.

Johnson's entire blog post is here. For further analysis of Northwest Austin Municipal Utility District Number One v. Holder see Mark A. Posner's guest blog here.

Not since 1903 has the Supreme Court invalidated national legislation aimed at guaranteeing the civil rights of our country's racial and ethnic minority citizens, and beginning in the 1960s the Court has broadly construed Congress' authority to enforce the Reconstruction Amendments. But the Court has backpedaled on its view of this authority in recent years and, after oral arguments were held in Northwest Austin Municipal Utility District Number One v. Holder, it appeared that the Court's conservative majority was poised to strike down the 2006 reauthorization of Section 5 of the Voting Rights Act. This, it appeared, would sharply divide the Court prompting a forceful dissent by four Justices, and would be met with widespread condemnation and anger among political leaders, commentators, and ordinary citizens.

The Justices, however, took a collective deep breath and, in an 8-1 decision issued on June 22, 2009, opted to sidestep the constitutional issue and instead give the plaintiff municipal utility district merely a narrow statutory victory. The Court held that the district is eligible to utilize a provision of the Voting Rights Act that allows individual jurisdictions to terminate their Section 5 coverage ("bail out"), reversing the district court's decision to the contrary. Thus, the question whether Congress acted within its constitutional authority when it reauthorized Section 5 for an additional 25 years has been left for perhaps another case and another day. Justice Clarence Thomas concurred in the statutory ruling but dissented on the ground that that the Court should have gone further and ruled that Section 5 is unconstitutional.

For civil rights advocates, a small battle was lost but a vital provision of the Voting Rights Act lives on, at least for now. As the key post-2010 redistricting cycle approaches, Section 5 will continue to require that jurisdictions with a history of voting discrimination (nine states and portions of seven others, mostly in the South and Southwest) obtain federal approval ("preclearance") of all changes in their voting practices and procedures. Specifically, the covered jurisdictions must continue to demonstrate either to the District Court for the District of Columbia or to the Justice Department that their voting changes neither will have the purpose nor will have the effect of discriminating on the basis of race, color, or language minority status.

In avoiding the constitutional issue, Chief Justice John Roberts, writing for the Court, gave some inkling of the trepidation the Justices apparently felt about holding unconstitutional a statute which the Court four times previously has upheld. In an unusual homage to judicial restraint, the Chief Justice emphasized that the Court is "keenly mindful of [its] institutional role," noting that "'Congress is a co-equal branch of government,'" and that "[t]he Fifteenth Amendment empowers ‘Congress,' not the Court, to determine in the first instance what legislation is needed to enforce it." The Chief Justice also observed that "[t]he historic accomplishments of the Voting Rights Act are undeniable" and that "Congress amassed a sizable record in support of its decision to extend the preclearance requirements."

The Chief Justice also, however, took the opportunity to spell out in some detail a series of concerns that he and perhaps other Justices have with Section 5. Many of these concerns previously have been rejected by the Court in upholding Section 5's constitutionality and others were addressed by Congress when it prepared its reauthorization record. Nonetheless, the Chief Justice's list includes: federalism costs; improvements in the electoral conditions for minority voters in the South; Section 5's departure from the principle of "equal sovereignty" among the States; the putative race-conscious nature of the Section 5 requirements; and the potential outdated nature of the Section 5 coverage formula.

What comes next is unclear. The case will return to the district court for a merits determination as to whether the municipal utility district may bail out. Assuming that bailout is granted, it seems that a new lawsuit challenging the constitutionality of Section 5 could be filed. In addition, some commentators, who view the Chief Justice's list of concerns as a warning to Congress about what may occur if the Court is again asked to rule on the constitutionality of the 2006 reauthorization, have suggested that Congress should undertake a review of potential amendments to Section 5. Finally, because the Court's statutory ruling will allow a broader group of covered jurisdictions to seek to bail out, the Justice Department and the D.C. District Court may soon become busy handling these matters. All of this will be monitored closely by civil rights advocates, who will continue their efforts to ensure that Section 5 remains in force. But, for the moment at least, civil rights advocates simply are breathing a huge sigh of relief.

Sometime in the next few weeks, the Supreme Court will issue what may well turn out to be the blockbuster ruling of this term -- its decision in Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO). The plaintiff in this case, a small municipal utility district in Texas, is challenging the constitutionality of a critical provision of an iconic civil rights statute -- the Voting Rights Act of 1965, most recently re-authorized by Congress in 2006 (with a Senate vote of 98-0). Questions posed by the Court's conservatives during oral argument indicate that they are poised to agree with the plaintiff and strike down the challenged portion of the Act.

Today, Constitutional Accountability Center (CAC) released the second report in our Text and History Narrative Series, a report that could not be more relevant or timely, as it tells what is essentially the constitutional "back story" of the NAMUDNO case, and demonstrates that a ruling striking down a central portion of the Voting Rights Act would be an egregious departure from constitutional text and history. This is a story that progressives need to understand, not only to respond forcefully to such a ruling and help shine a light on the conservative activism of the Roberts Court, but also to help frame the upcoming hearings on Judge Sonia Sotomayor's nomination to the Court. A ruling that guts a core part of the Voting Rights Act would illustrate that the Court's conservatives are not willing to take the text and history of the Constitution seriously, and the need for Justices who will.

In NAMUDNO, the proper decision on the constitutional challenge to the Voting Rights Act will turn on the correct reading of the Enforcement Clauses of the Civil War Amendments -- the 13th, 14th, and 15th Amendments -- an area in which the Court has already gone far astray. With the ruling in NAMUDNO, the Court could make one of its biggest and most harmful constitutional errors in history.

CAC's new report, The Shield of National Protection, reveals how drastically a ruling striking down part of the Voting Rights Act would depart from the text and history of the Constitution. As The Shield demonstrates through a careful study of the text and history of the Civil War Amendments, the Reconstruction Framers intended the Enforcement Clauses to provide Congress with broad authority to guarantee, "by appropriate legislation," the fundamental rights secured by those Amendments, including the right to vote. Written against the backdrop of Dred Scott v. Sandford, the Supreme Court ruling that helped bring on the Civil War, these Amendments were ratified to change the balance of power between the States and the federal government and provide Congress with the tools to protect fundamental rights.

Unfortunately, as discussed in The Shield, the sweeping enforcement power given to Congress has too often been ignored by judges more concerned with results than with upholding the Constitution. The modern Supreme Court has been the worst offender, re-affirming earlier erroneous rulings and creating, out of thin air, new restrictions on the exercise of federal authority under the Civil War Amendments. As we await the Court's ruling on the Voting Rights Act, there is reason to fear that the Roberts Court will further restrict congressional power in an area at the heart of the rights and freedoms the Civil War Amendments were intended to protect.

During oral argument in NAMUDNO, the Court's conservatives displayed marked hostility to the Voting Rights Act and seemed ready to invalidate the challenged portion of the Act, the Enforcement Clauses be damned. Such a ruling would be among the most stunning departures from constitutional first principles. According to Yale Law Professor Akhil Amar: "The American people ratified the Civil War Amendments with full understanding of the breadth of their language authorizing ‘appropriate' federal legislation and knowing that Congress believed this language authorized transformative new federal statutes to secure the franchise and uproot all vestiges of inequality. A ruling by the Supreme Court striking down a critical part of the Voting Rights Act would represent a shocking and disturbing departure from this text and history."

Indeed, such a ruling would illustrate the lie in everything conservative judges have been telling us about their approach to judging. It would fly in the face of constitutional text and history, when conservative judges purport to be bound by these sources. It would be starkly activist when they purport to favor judicial restraint. The disparity between these touted conservative principles and a ruling in NAMUDNO eviscerating a core provision of the Voting Rights Act would be so enormous that it could fundamentally alter the debate over the Supreme Court in this country, waking progressives up to the genuine threat posed by the Roberts Court and alerting Americans that conservative judges cannot be trusted to honor the Constitution's text and history, even when our most fundamental rights are at stake.

If the Court does in fact issue such a ruling, progressives can and should use it as an opportunity to help jump start a national conversation about the role and future of the Supreme Court. The judiciary is not usually at the forefront of most Americans' concerns. However, with Judge Sotomayor's confirmation hearing soon upon us, Americans may just be ready to have this important conversation.

* * * * * *
CAC's new report, The Shield of National Protection: The Text and History of Section 5 of the Fourteenth Amendment, can be found here.

In the past week, two important Voting Rights Act decisions have come under fire from conservative commentators. The Voting Rights Act can be expected to stir strong emotions, and strong emotions can be expected to distort reality. But the nature of the recent critique is fun-house-mirror material.

The first decision, Hayden v. Pataki, involved a dissent by Judge Sotomayor, of renewed importance upon her nomination to the Supreme Court. The second decision is the new administration's first objection to VRA preclearance for a statewide legal change, and a notable change in approach after years of controversy in the DOJ's Voting Section.

One of the central figures in that controversy, Hans von Spakovsky, has spoken out on both decisions, with characteristic vigor. First, he castigated Judge Sotomayor for her Hayden dissent, claiming that she "appears to have allowed her views on race to supersede the clear requirement of the law." He asserts that she was, in "duplicitous" fashion, "actually proposing that the courts alter the statute . . . ." Strong words. Which turn reality completely on its head.

Hayden, which I've reviewed before, debated whether the Voting Rights Act (VRA) specially exempted felony disenfranchisement laws from the general rule that electoral provisions are subject to challenge when they have a differential impact on account of race. The decision addressed neither the merits of the VRA claim nor the policy of disenfranchisement. And despite the soundbites, none of Judge Sotomayor's 242 dissenting words suggest that she "would let prisoners vote."

Instead, the dispute concerned interpretation of the VRA's scope. Like all statutory interpretation, that work begins - and usually ends - with the statutory text.

The Voting Rights Act's text refers to all voting qualifications, without exception. Felony disenfranchisement laws disqualify voters. So under the "clear requirement of the law," the next question should have been whether plaintiffs' evidence proved that the laws in question, under the totality of the circumstances, abridged the right to vote on account of race.

The Hayden court never got close to the right question. It instead decided, over several strong dissents, that the statute's text did not mean what it said. According to the court, the VRA covers all voting qualifications ... except one.

Mr. von Spakovsky has it exactly backward: Judge Sotomayor protested the court's decision, unwarranted by any constitutional necessity, to rewrite the text based on irrelevant snippets of legislative history. Her words: "I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created." Whether you agree or disagree with her legal conclusion, it is absurd to believe that she is the one contravening clear law for policy purposes. Mr. von Spakovsky doth protest too much, methinks.

Mr. von Spakovsky's topsy-turvy approach to the VRA also drives his second recent critique, concerning section 5 of the Act. In enforcing that provision, the Department of Justice (DOJ) must object to changes in covered states' voting practices, unless the state proves that the proposed change leaves legitimate minority voters no worse off than the status quo.

Mr. von Spakovsky's tenure at Justice featured some controversial enforcement decisions. For example, the Department precleared a restrictive Georgia identification law one day after career staff recommended an objection because the available evidence did not ameliorate concern regarding the law's potential impact on minorities.

This past week, faced with a new Georgia restriction, DOJ demonstrated a different -and commendable - focus on the facts. Georgia's new policy blocks registration of voters flagged by flawed attempts to match voter data to driver's license or Social Security records. The matching process yields thousands of errors, forcing citizens to struggle to correct the state's mistakes. Less-flawed alternatives are available. And - most important for section 5 - Georgia's system disproportionately affects minorities.

Given the available evidence, the Justice Department found that Georgia failed to prove that the new policy did not violate the Voting Rights Act. As required by law, it objected to the change. Mr. von Spakovsky, in turn, objected to the objection: "I just think it is an outrageously stupid decision." The action, he said, "shows how arbitrarily the Voting Rights Act is applied, based on nothing more than the administration in power."

To the extent Mr. von Spakovsky's last observation is accurate, it does not speak well of his DOJ tenure. The new objection might create political turbulence, given the brouhaha over matching programs last fall. Yet it is hardly arbitrary. It is how we should hope that law enforcement - no less than courts - would act. It is the responsible decision, carefully applying a legitimate statute to the presented evidence. It ensures that political views do not supersede the clear requirement of the law. On that standard, at least, it seems we can all agree.