There's an IPAB in your future

There's an IPAB in your future

For all of the years that I was privileged to serve as the staff director of the Senate Health Subcommittee, our No. 1 legislative priority was the enactment of Chairman Edward Kennedy's national health insurance bill. Back in those days, health care reform was known as national health insurance (NHI).

We never were able to get the bill passed. We were trapped, like all the other senators who had competing NHI bills, in that we all had enough political strength to block any competing bill but not enough political support to pass our bill. This, of course, was the political impasse that hamstrung the enactment of any such bill until Obamacare became law on March 23, 2010.

For the record, I have been a tireless and unwavering advocate for genuine health care reform since 1971. During the lengthy, bitter and divisive consideration of Obamacare, I advocated that health care reform could best be achieved by extending the 50-year old Federal Employees Health Benefits Program to all Americans on a pay-as-you-go basis.

It is the nation's largest health insurance program. It is funded and administered by the federal government, but the insurance coverage is provided by private commercial insurers or HMOs. All of its participants get to choose their own insurer, doctor and hospital. Thus, it is a successful public/private partnership. Good luck trying to find any one of its millions of participants who is dissatisfied with it.

But President Barack Obama and his Democrat allies on the Hill unwisely chose a different path. It was a path that divided Washington and the nation. It was a path that forced them to sell out to the powerful health care industry in order to get the votes to pass Obamacare. It's a path that loads an additional 30 million uninsured Americans on the USS Health Care Titanic with no additional life preservers or life boats. Maybe you call that health care reform. It's not.

But whether you love Obamacare or hate it, there's something buried deep within it you need to know about: IPAB, the Independent Payment Advisory Board, which, when created, will cut Medicare spending. This new, 15-member government agency was authorized by sections 3403 and 10320 of Obamacare. Its principal job is to cut Medicare expenditures without affecting quality, coverage or the use of rationing. Are you kidding me?

Medicare currently serves about 50 million Americans, and the number is growing rapidly. The baby boomers began to reach age 65 two years ago. By 2029, all 77 million of them will have reached age 65 and be eligible for Medicare. Current Medicare spending is about $600 billion annually. It is projected to rise to $1 trillion by 2022, and the Medicare trustees, in their annual report in the spring, stated that the Medicare Hospital Insurance Trust Fund will become insolvent by 2026. According to the U.S. Debt Clock, Medicare's liability is currently estimated to be more than $86 trillion — that's trillion.

Somehow the IPAB is supposed to fix all of this. It can't be done painlessly, if at all. But even if it could, there are other aspects of the IPAB that raise monumental problems. A thoughtful and thought-provoking column in The Wall Street Journal on June 19 by David Rivkin and Elizabeth Foley makes the argument that the IPAB threatens not just Medicare but also the Constitution's doctrine of separation of powers and due process.

The provisions of Obamacare that create the IPAB ensure that the board will not be subject to administrative or judicial review. In addition, once the IPAB's members are nominated by the president and confirmed by the Senate, they will be insulated. They can only be removed for "neglect of duty or malfeasance in office."

In addition, Rivkin and Foley point out that once the board acts, Congress' ability to overrule its actions is extremely limited and requires supermajority votes. If the board were to fail to make the required Medicare reductions, the law provides a fail-safe mechanism. Under those circumstances, all of the board's power would revert to the secretary of Health and Human Services.

Rivkin and Foley wrote, "This wholesale transfer of power is at odds with the Constitution's separation-of-powers architecture that protects individual liberty by preventing an undue aggregation of government power in a single entity."

The authors also point out that the IPAB is also "encouraged to make rules ‘related' to Medicare." "Related to Medicare" is a loophole through which an 18-wheeler could be driven.

For example, Rivkin and Foley suggest the board could require providers to make available certain services without payment, or it could require insurers and/or providers to make abortion services available, or any other requirement the board deems necessary.

Finally, they conclude that "the Independent Payment Advisory Board isn't a typical executive agency. It's a new beast that exercises both executive and legislative power but can't be controlled by either branch. Seniors and providers hit hardest by the board's decisions will have nowhere to turn for relief — not Congress, not the president, not the courts."

By the way, why is there no IPAB for Medicaid? Like Medicare, its costs are enormous and out of control, and Obamacare will expand it significantly. Perhaps the answer is driven by political correctness — IPAB-ing Medicaid would have made Obama and the Democrats vulnerable to a bogus charge of discrimination.

The Shadow's sweating none of this, he's ageless and has never been sick, but Goldman can be reached at:  EmailMe.

‘Deathtrap': Suicidal refuge for the GOP

Later this week, "Deathtrap" opens at the Flat Rock Playhouse, the State Theatre of North Carolina. The Shadow and I will be there, and so should all Republicans.

Written by Ira Levin, "Deathtrap" opened at the Music Box Theatre on Broadway in 1978. It still holds the record for the longest running comedy-thriller on Broadway and was nominated for a Tony Award for best play. The preface to the script describes "Deathtrap" as "something so evil that it infects all who touch it."

Thus, it contains a lesson that the GOP needs desperately to learn. Whether it can learn that lesson is as unclear as the twisting and tantalizing plot of "Deathtrap."

The fundamental question is whether the GOP can avert suicide. Astonishingly, the answer appears to be no, and the Grand Old Party is rapidly running out of time and maneuvering room. Just a month or so ago, Bob Dole said the GOP ought to hang a "Closed For Repairs" sign on the party's headquarters. Dole spoke the truth. Let's take a look.

In the 1940s and '50s, as America's "Arsenal of Democracy" flexed its industrial might, blacks streamed out of the states of the Old Confederacy to find jobs in the cities of the North and East. The Democrats welcomed them, while the Republicans ignored them. The result was inevitable. The descendants of slaves, freed by the nation's first Republican president, became a monolithic voting bloc for the Democratic Party. Now that voting behavior is in their DNA.

It comes at a terribly high price for the GOP. In the 2012 presidential election, the GOP lost the crucial battleground state of Ohio because of massive African-American turnout in Cuyahoga County (Cleveland), something the Republicans never saw coming. No Republican has ever won the White House without carrying Ohio, and 2012 was no exception.

But the African-American vote pales in significance contrasted to what's at play now — the Hispanic vote. Can the GOP double down in self-destructive stupidity? Sure looks like it!

Let's start with the big picture. In the 1980 presidential election, whites made up 88 percent of those who voted. That percentage has been dropping steadily ever since. In 2012, it was down to 72 percent, and in 2016 it's projected to be 70 percent. The face of America is changing, literally and rapidly.

Hispanics accounted for more than half (56 percent) of the nation's growth in the past decade. In fact, racial and ethnic minorities accounted for 92 percent of all of the nation's population growth in the most recent census. In 2012, for the first time, more whites died than were born. In 2012, the median age for whites was 42. But for African-Americans it was 32, and it was 28 for Hispanics.

In 1900, the nation's population was 80 million. Today it's approaching 320 million. Do you know how much of that 240 million person growth was the result of immigration? The answer is fully half — 120 million. We are and will remain a nation of immigrants. Attempting to deny the relevance and political power of those forces takes stupidity, ignorance and racial prejudice to suicidal proportions.

In 2012, President Barack Obama defeated Mitt Romney among Hispanics by a margin of 71 percent to 27 percent. Given the explosive growth of the Hispanic population, margins like that foretell the death of the Republican Party.

Steve Schmidt, John McCain's capable campaign manager in 2008, recently told The New York Times concerning the battle in Congress over immigration reform, "(House Republicans) are totally insulated from public opinion on this because of redistricting." The respected Cook Political Report currently rates only nine of the House's 435 districts as pure tossups. Only 40 of the House's 232 Republicans represent districts that are more than 20 percent Hispanic.

Thus the reality is that the vast majority of House Republicans have no vested interest in reaching out to Hispanic voters. That's a message not lost on Hispanics, and it's a message the Democrats and their allies in the media exploit every day.

To make matters worse, a recent Pew Research poll shows that by a 54 percent to 40 percent margin, Republicans want their party leaders to be more conservative. At the same time, another Pew poll shows a majority of Americans think the GOP is too extreme. And a third such poll of Republicans showed that their first-place vote for leader of the Republican Party was "nobody."

A chilling example of how the GOP is consuming itself can be found right here in North Carolina. Freshman House Republican Robert Pittenger, an evangelical conservative who has repeatedly denounced Obamacare, is under assault from tea party constituents in his Charlotte suburban district. Why? Because he won't agree to shut down the government over the futile effort to repeal Obamacare.

Doctrinal zealotry like this can be summed up in a single word — madness.

Over in the Senate, the newest darling of the tea party, Sen. Ted Cruz, R-Texas, has called his more moderate GOP critics the "surrender caucus." In another generation Ted Cruz will be gone. Texas will be blue. Try amassing a majority of presidential electoral votes for a Republican without Texas! You can't.

When a political party willingly thrusts its head into an orifice devoid of oxygen and light, coherent thought ceases and vision fades to black. Think of it as a self-inflicted deathtrap, one the GOP will have marched into the old-fashioned way — by earning it.

The Shadow's back stage at the Flat Rock Playhouse, but Goldman can be reached at:  EmailMe

Barack Obama: Whiner in chief

One of my best teachers in eighth and ninth grades was Walter A. Hoskins, who taught social studies. During the spring of 1951, we spent considerable time discussing President Harry Truman's firing of Gen. Douglas MacArthur as the commander of United Nations forces in the Korean War. MacArthur rejected civilian control of the armed forces.

The political price Truman paid was immense. By the summer of 1951, Truman's popularity had plummeted to 23 percent, a record that still stands. He did not seek re-election in 1952. But history has shown that he was one of the nation's best presidents.

Truman did the right thing regardless of the political consequences. That's a quality in short supply in the White House today. Let's take a look.

Within months of being elected to the U.S. Senate from Illinois in November 2004, Barack Obama delivered the commencement address at Knox College in Galesburg, Ill. Galesburg, some 200 miles west of Chicago and the birthplace of Carl Sandburg, was an important stop on the Underground Railroad in the mid-19th century, and it was the site of the fifth Lincoln-Douglas debate in 1858.

Those who heard Obama's speech did not have any reason to think that only a year and a half later he would deliver a speech in Springfield, Ill., announcing his candidacy for president of the United States. And even fewer would have believed that in 2009 Obama would take the oath of office as the nation's 44th president.

Sen. Obama told the graduating seniors at Knox College that day, "The true test of the American ideal is whether ... we allow ourselves to be shaped by events and history, or whether we act to shape them." He told them they would face new challenges by saying, "You see it when you drive by the old Maytag plant around lunchtime and no one walks out anymore."

He asked those in the audience to dream, to imagine what could be done to give every American a fighting chance in the 21st century. He held out the promise of affordable college education for everyone who wanted to go. He promised new jobs based upon job retraining and lifelong education. He promised a pension that stayed with you always. And he said, "Ten or twenty years down the road, that old Maytag plant could reopen it doors as an ethanol refinery ... ."

A couple of weeks ago, just over eight years after delivering that commencement address, President Obama returned to Knox College to speak again. He began his speech with a reference to the Maytag plant that had relocated to Mexico. He announced that America was poised to reverse the forces that had so long battered the middle class. But then he said we're not there yet.

Referring back to his 2005 speech, he condemned a "winner-take-all economy" where a few do better while most languish. And then he said, "Unfortunately, over the past couple of years, in particular ... Washington has made things worse." Over the past six months, he said gridlock had gotten worse in Washington, something he did not think was possible.

Putting a point on it, he stated that "with this endless parade of distractions and political posturing and phony scandals, Washington has taken its eye off the ball." And he concluded by saying the only thing he cared about "is how to use every minute of the remaining 1,276 days of my term to make this country work for working Americans again."

As my wife's grandmother would have said, "Lord-a-mercy." Obama lashes out at Washington's failure, apparently believing we don't know that he is Washington. More than that, this is the man who won the White House by promising all of us "change we could believe in."

It takes real chutzpah to stand before the American people and assume we're not smart enough to figure out that he hasn't been able to deliver on his fundamental promises.

The president's speech was divisive, partisan and churlish. It was as political as any speech he gave on the campaign trail last fall. It was laced with class warfare rhetoric, and it absolved him and his administration of any responsibility for the paralysis that has gripped Washington since he took office.

If you read between the lines, it's clear that the whiner in chief knows he's failed. At Bloomberg.com, Megan McArdle reported that "the speech seemed like a confession that the president knows he can't do much. The deep problems afflicting America — social and economic breakdown in inner cities and rural areas; rising economic insecurity; widening gulfs between ideologies, regions and socioeconomic classes — are simply far beyond the president's reach."

Writing in the Telegraph, Nile Gardiner said, "President Obama spoke the language of decline ... . America deserves better than the failed statism that has bankrupted cities like Detroit, and threatens to do the same to the rest of the country."

The brutal truth now on display is that Obama is a failed president. He didn't stop long enough in the Senate in Springfield or on Capitol Hill to acquire the experience necessary to lead a complex and deeply divided government . Some of us knew that in 2007-08. Now it's on display for anyone with a working brain.

Don't let the door hit you on the way out of the White House, Mr. President.

The Shadow and I heard President Truman speak at Memorial Auditorium in Gary, Ind., on Oct. 25, 1948. We can tell you that Barack Obama's no Harry Truman. Goldman can be reached at:  EmailMe

Put the military in the dock with Hasan

On Tuesday, the trial of Army Maj. NidalHasan begins in earnest. Hasan has been charged with 13 counts of premeditated murder and 32 counts of attempted murder in the shooting at the Army's Fort Hood military base near Killeen, Texas, on Nov. 5, 2009.

Early in the afternoon of that day, Hasan allegedly entered Fort Hood's Soldier Readiness Processing Center, where he worked, sat briefly at a table with his head bowed, then stood up and shouted, "Allahuakbar" (God is great), and opened fire. Prosecutors say he was armed with an FN Five-seven pistol, a Smith & Wesson .357 Magnum revolver and hundreds of rounds of ammunition. Hasan was shot four times and is now a paraplegic.

The Defense Department and federal law enforcement agencies have deemed it to be an act of workplace violence, not an act of terrorism, even though the National Counterterrorism Center immediately labeled it as a terrorist attack.

In November 2011, survivors of the shooting and family members of those who were killed filed suit against the government for negligence in preventing the shootings and in an effort to force the government to classify the shooting as terrorism. Absent such a reclassification, the victims of the attack are not eligible for the Purple Heart.

Hasan is an American citizen and a Muslim whose parents came to America from Palestine. He joined the Army in college and graduated from Virginia Tech University in 1995. In 2003, he received his medical degree from the federal government's Uniformed University of the Health Sciences. He was trained in psychiatry at Walter Reed Army Hospital.

During residency training, he gave a lecture titled, "The Koranic World View as it Relates to Muslims in the United States Military." His lecture was not related to health or medicine, and it was jarring to many who heard it.

Hasan was known to express extremist views, which were brought to the attention of his superiors in the military and to the FBI. His behavior, his views respecting Islamic extremism and his email exchanges with Anwar al-Awlaki, an imam and former senior leader of al-Qaida, were known to officials of the military and the FBI.

Al-Awlaki, an American citizen, was killed Sept. 30, 2011, in Yemen while riding in a vehicle that was struck by Hellfire missiles that had been launched from a Predator drone based out of a secret CIA facility in Saudi Arabia by the Joint Special Operations Command. The strike had been authorized by President Barack Obama.

But instead of being discharged, Hasan was promoted from captain to major in 2009, and in July he was transferred to Fort Hood. Four months later, the massacre occurred.

Hasan is an Islamic extremist who should have been drummed out of the Army. He should not have been promoted, and he should not have been transferred to Fort Hood. Instead, driven by political correctness, the military airmailed Hasan to Fort Hood. Think of it as a cowardly, out-of-sight, out-of-mind move! The military should be charged as an accomplice to murder.

Understanding why and how the military acted as it did is found in the Report of the Senate Homeland Security Committee's investigation into this preventable tragedy. The March 2011 Report, authored by then-Chairman Joe Lieberman, I-Conn., and ranking minority member Susan Collins, R-Maine, is titled, "A Ticking Time Bomb — Counterterrorism Lessons from the U.S. Government's Failure to Prevent the Fort Hood Attack."

Here are highlights of the report:

Witnesses reported that Hasan expressed support in open class presentations for the principles of violent Islamic extremism. His officer evaluation reports were uniformly positive and described his exploration of violent Islamic extremism as praiseworthy. The Senate Report concluded that "an individual who embraces violent Islamic extremist ideology clearly is unfit to serve in the U.S. Military."

Hasan reportedly told several of his classmates in residency training that his religion took precedence over the U.S. Constitution that he had sworn to support as a U.S. Military officer.

In summary, he made off-topic presentations on violent Islamic extremism rather than medical subjects; he justified suicide bombings twice in class presentations; he stated that some of the actions of Osama bin Laden were justified; and he stated three times in writing that Muslim-Americans in the military could be prone to fratricide.

But Hasan was never disciplined, never referred to counterintelligence officials and never discharged. The Senate Report states, "One of the officers who report Hasan to superiors opined that Hasan was permitted to remain in service because of political correctness."

That same officer added "that he believed that concern about political discrimination complaints stopped some individuals from challenging Hasan."

The Senate Report also indicates that Hasan received evaluations that flatly misstated his actual performance. They described him as a star officer, recommended him for promotion to major and stated that his "work on violent Islamic extremism would assist U.S. counterterrorism efforts."

In conclusion, the Senate Report states, "The officers who kept Hasan in the military and moved him steadily along knew full well of his problematic behavior. As the officer who assigned Hasan to Fort Hood admitted to an officer at Fort Hood, ‘You're getting our worst.' "

The only way to serve justice in this case is to haul the military into the dock with Hasan and convict all of them of murder.

The Shadow's on his way to the trial, but Goldman can be reached at:  EmailMe

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My early line on the 2014 election

Disapproval of Congress is at an all-time high. Only about 10 percent of the American people approve of what it does. On Meet The Press last Sunday, Senate Majority Leader Harry Reid said North Korea is more popular than Congress. His statement puts a bow on it.

But the fact that Congress has degenerated into dysfunctionality doesn't mean most of them won't be re-elected next year. They will. Can the Democrats recapture the House? Can the Republicans regain the Senate? Let's go to The Shadow's early line and see.

The Republicans control the House of Representatives 234-201. The Democrats would need to gain a net of 17 seats in order to regain control of the chamber. Although not impossible, it would be a daunting task.

Over the past two decades, there have been several "wave elections" that brought fundamental change to the House. In 1994, the GOP emerged from 40 years in the wilderness to take control of the House by winning 54 seats. It was the Gingrich revolution.

Then, in the elections of 2006 and 2008, the Democrats were swept back into power by winning 52 seats, thereby giving President Barack Obama control of all of the levers of power in Washington for his first two years in the White House.

But in 2010, another wave election led by the tea party insurgents returned the House to Republican dominance as the GOP gained 63 seats. In 2012, the Democrats picked up eight seats to slightly narrow the Republican House majority.

There will not be another wave election in 2014 unless some major external and unexpected event roils the political landscape. Thanks to congressional redistricting following the 2010 census, the GOP has a built-in structural advantage in a large number of House districts.

North Carolina is a perfect example of this advantage. Prior to redistricting following the 2010 census, the Democrats controlled seven of North Carolina's 13 House seats. But now the GOP has a 9-4 edge. Our own district here in the mountains tells the story. The GOP's redistricting removed most of the African-American precincts in Asheville from our district. That turned the district from blue to red. That helps explain why Democrat Heath Shuler retired and why Republican Mark Meadows won.

When all is said and done on Nov. 4, 2014, the GOP will still rule the roost in the House of Representatives.

The Democrats control the Senate 54-46, including two independents, Bernie Sanders of Vermont and Angus King of Maine, who routinely vote with the Democrats. However, in a special election coming Oct. 16, it is highly likely that the Democrats will pick up another seat in New Jersey with the election of Cory Booker, the Democratic mayor of Newark. That will give the Democrats a 55-45 edge in the chamber.

In order to regain control of the Senate in 2014, the Republicans would have to gain at least six seats. A 50-50 split would leave the Democrats in control because the tie would be broken by the constitutional officer who serves as the president of the Senate, Vice President Joe Biden.

Most senators seeking re-election will win. Thus the balance hangs in seven toss-up states that are now held by Democrats. These states are Montana, South Dakota, West Virginia, Alaska, Arkansas, Louisiana and North Carolina. For the Republicans to take control of the Senate, they will need to win six of these seven battleground states. It's a tall order, but they have a chance because all of these are red states.

The GOP would appear to be poised to capture South Dakota, West Virginia, Montana and Arkansas. They can also win in Alaska, assuming that former governor Sarah Palin steers clear of the fray. That's five of the six the Republicans need, and it leaves Louisiana and North Carolina.

In Louisiana, Democratic Sen. Mary Landrieu seeks her fourth term. Her father, Moon Landrieu, was mayor of the Crescent City, and now her brother, Mitch, is the current mayor of New Orleans. Sen. Landrieu has been one of the most conservative Democrats in the Senate.

All of her previous elections have been close. For her, the key to victory remains unchanged — roll up huge margins among African-American voters in New Orleans. With her brother's help, she probably will do it again next year.

And there you have it. Control of the Senate comes down to North Carolina! Freshman Democratic Sen. Kay Hagan seeks re-election. She grew up in Lakeland, Fla., where her father was a successful businessman, a power broker in state Democratic circles and the mayor of Lakeland. Hagan herself is one of the wealthiest members of the Senate. Her net worth is estimated to be between $11 million and $40 million.

Her legislative track record in the Senate is undistinguished. She voted for Obamacare. And next year she will not have the advantage that was hers in 2008 — the large voter turnout that accompanies a presidential election.

But you can't beat somebody with nobody. And that's the current problem facing the Republican Party in North Carolina. They do not have a front-line candidate who is able and eager to send Hagan to the showers.

In 2010 and 2012, the GOP flushed six winnable Senate seats down the toilet by nominating certain losers. Will North Carolina be No. 7? If so, the consequences of stupidity for the GOP will loom large.

Maybe the Shadow will throw his hat in the ring, but Lee Goldman can be reached at: EmailMe.  Goldman's series on Supreme Court issues over the past three weeks has earned national recognition with re-publication on SCOTUSblog.com. As a result, N.C. Rep. Mark Meadows formally commended Goldman on the House floor Tuesday.

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Is it political or racial gerrymandering?

Gerrymandering has been around since the early 19th century. Political gerrymandering is as American as apple pie. Racial gerrymandering is an unconstitutional violation of the Equal Protection Clause of the 14th Amendment. Telling them apart is hard and intensely controversial. Let's try.

However, before trying, it's necessary to look back to the Supreme Court's ruling in Baker v. Carr in 1962. The fundamental question was whether federal courts have the power to determine the constitutionality of a state's voting districts.

Justice William J. Brennan, writing for the 6-2 majority, held that they do have such power. And Justice William O. Douglas, writing a concurring opinion, stated that if a voter no longer has "the constitutional value of his franchise [right to vote] and the legislative branch fails to take appropriate restorative action, the doors of the courts must be open to him." With its landmark decision, the court entered what became known as the "political thicket." It's been there ever since.

The enactment of the Voting Rights Act (VRA) in 1965 and its subsequent amendments has significantly shaped, and some would argue significantly distorted, the decisions the courts have taken over the past half-century. Section 2 of the VRA applies nationally and it requires that, if racially polarized voting exists and if a majority-minority district can be drawn, then it must be drawn. Section 5 of the VRA, which covers nine states and portions of other states, including North Carolina, previously required that the number of majority-minority districts cannot decrease during redistricting. The court's Shelby decision last month rendered Section 5 inoperable.

One of those districts, the 12th in North Carolina, commands our attention. It was and remains a majority-minority district created pursuant to Section 5 of the VRA in the early 1990s. The grotesquely contorted 12th District resembled a snake slithering up I-85 from Gastonia to Durham. When it was created in 1992, two-thirds of its residents were African-American.

It triggered a titanic legal battle that would last until April 2001 and would be the subject of three cases decided by the Supreme Court, all described in meticulous detail by Tinsley Yarborough in his wonderfulbook, "Race and Redistricting."

The fundamental issue brought before the high court was whether the two majority-minority districts being proposed in North Carolina were simply the result of traditional and legal political gerrymandering, or were they an impermissible and illegal racial gerrymander, driven by the preclearance requirements of Section 5 of the VRA?

The challenge that the two districts were an illegal racial gerrymander was led by an improbable individual, Robinson Everett, a Duke law professor and former chief judge of the Court of Military Appeals. Everett was a moderately liberal Democrat with close connections to Durham's African-American community.

Everett deeply opposed discrimination against blacks, but he was just as deeply opposed to race-conscious policies that were designed to benefit one race over another. He believed North Carolina's two majority-minority districts were unconstitutional racial gerrymanders.

Everett prevailed in the first two of the cases before the Supreme Court, Shaw v. Reno (1993) and Shaw v. Hunt (1996). But he lost in the third and decisive case, Easley v. Cromartie (2001). Writing for the 5-4 majority, Justice Sandra Day O'Connor stated that the majority-minority districts were not racial gerrymanders and were, therefore, not a violation of the Equal Protection Clause of the 14th Amendment.

The loss was a bitter defeat for Everett, especially because in one of the earlier rulings, Justice O'Connor, writing for the 5-4 majority in that case, had stated in part, "A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographic and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid."

Robinson Everett died in 2009, having won two battles but not the war. But this fight will continue. Any review of the voluminous rulings of the courts over the decades makes evident the complexity, subtlety and controversial nature of a racially charged issue like this.

But, that said, it's abundantly clear that whether you believe the proliferation and maintenance of majority-minority districts are beneficial and essential, or whether you believe they are an unconstitutional violation of the Equal Protection Clause, there is simply no doubt that there has been a profound change in the American political landscape since Baker v. Carr in 1962 and the VRA in 1965.

That changed landscape has been attributable to many factors, including, of course, the VRA. But the one factor that everyone knows and that defies denial is that this nation has now twice elected an African-American president of the United States. And both times he won the popular vote handily and the electoral vote overwhelmingly. He did not need an African-American district In order to win.

That's enough to tell this writer that it's only a matter of time before the high court will deal with more cases that challenge racial gerrymandering.

And it tells me that it's a question of when, and not if, the court ends it, clearly and decisively.

I can actually think of a wonderful precedent the court could use in reaching such a decision. Remember Brown v. Board of Education in 1954? The court ruled that separate educational facilities are inherently unequal. Its ruling was 9-0!

If segregated school districts are inherently unequal, what's to love about segregated voting districts?

The Shadow's gone off to law school, but Goldman can be reached at:  EmailMe

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LeRoy Goldman
The Shadow Knows

Published: Sunday, July 7, 2013 at 4:30 a.m.

Voting rights and wrongs: Court makes correct decision on VRA

On June 25, the Supreme Court handed down its decision in Shelby County Alabama v. Holder, the Voting Rights Act case. That evening Brian Williams, the NBC Nightly News anchor, opened the broadcast by saying, "as one reporter put it, the U.S. Supreme Court has driven a stake through the heart of the most important civil rights law ever enacted, the Voting Rights Act."

In a single sentence, while hiding behind an anonymous reporter, Williams disgraced himself, the profession of journalism and distorted the truth! Not bad for a guy who makes $10 million a year!

The VRA was signed into law in 1965. The Senate and House had passed it with huge bipartisan majorities, including well more than 80 percent of the Republicans and both of their leaders, Senate Minority Leader Everett Dirksen and House Minority Leader Gerald Ford. It has done an immense amount of good over the past half century. It has basically eradicated voting discrimination, especially in the South, where racial discrimination had been rampant.

The centerpiece of the law is found in two different, but related sections, Sections 2 and 5. Section 2 is permanent and covers the entire nation. It is designed to require enforcement of the 14th and 15th Amendments to the Constitution. The 14th guarantees equal protection and due process, and the 15th prohibits abridging the right to vote based on race. Section 2 contains a general prohibition on voting discrimination that is enforced by Federal District Courts. What changes did the High Court's ruling in Shelby make in Section 2? None.

Section 5 has to be periodically reauthorized. It is currently authorized through 2031. Under jurisdictions covered by Section 5, no changes in voting procedures are permitted without preclearance by the United States Department of Justice. Section 5 covers nine states in the South, and counties in several other states, including North Carolina. The provisions of Section 5 trample on the constitutional doctrine of federalism and the sovereignty of the states. But, given the severity of voter discrimination in those states in 1965, it was a price that had to be paid. The United States Civil Rights Commission has now found that the number of Justice Department objections to proposed changes has become trivially small, less than 0.1 percent. What changes did the high court's ruling in Shelby make to Section 5? None

Section 4 of the VRA contains a formula by which covered jurisdictions requiring preclearance under Section 5 are determined. That formula has not been modified during the 48-year history of the VRA. Because it is outdated, the high court ruled in Shelby that the formula is unconstitutional. Unless and until Congress and the president write a new formula, Section 5 is inoperable.

It's not as if they were not given advance warning. In a decision in 2009 on a previous VRA case, Chief Justice John Roberts, writing for the majority, put a clear warning shot across the bow of the president and the Congress when he stated, "the evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute's coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions".

But President Barack Obama, Attorney General Eric Holder, and the then-Democratic controlled Congress, including the Congressional Black Caucus, ignored the clear warning and chose not to update the Section 4 formula.

Within 24 hours of the Court's ruling in Shelby, the voices of reverse racism were in full-throated attack. Al Sharpton said, "What they've just done is really revoked a lot of what Dr. King's dream was all about. They just canceled the dream". Jesse Jackson said, "This is the most devastating blow to civil rights since the 1896 decision (Louisiana's grandfather clauses)." And Benjamin Jealous, President of the NAACP, said, "This decision is outrageous."

In fact, what explains their feigned outrage is something else. In Commentary Magazine, Jonathan Tobin illuminates the real issue. He stated, "It must be understood that once the detritus of segregation and other laws intended to prevent blacks from voting were swept away, the main point of the law has been to create a system that enshrined racial gerrymandering as the norm." He called that system a class of political elites that benefit from majority-minority congressional districts.

Writing in the Washington Post on June 26, George Will characterized the VRA as the noblest legislation in American history. He also said, "The court paid the VRA the highest possible tribute by saying the act's key provision is no longer constitutional because the act has changed pertinent facts that once made it so."

Americans have now twice elected a black man president of the United States. A black man is the nation's attorney general. Black people voted in the 2012 election at a higher rate than did white people. Blacks are registered to vote at a higher rate than whites in the nine Southern states covered by the preclearance requirement of Section 5 of the VRA. Mississippi has more elected black officials than any other state in the nation!

The war's over. Decent people of all races have won. The apostles of reverse racism and their enablers in the media are on the losing side of history.

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