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High Court to Strike Down Voting Rights Act?
GoodKingJayIII
They wanna get mygold on the ceilingRegistered User regular
They wanna get mygold on the ceilingRegistered User regular
Article: http://www.law.com/jsp/law/careercenter/lawArticleCareerCenter.jsp?id=1202430305580&rss=careercenter
Repost of Article
If you read nothing else in this article, read the last two paragraphs for an excellent ironic lol.
What is the VRA?
tl;dr summary of article: SCOTUS is hearing a case which challenges a part of the Voting Rights Act, specifically a preclearance that requires some states (but not others) to submit changes in voting law to the DOJ. Conservative arguments question the need for the preclearance, and suggest that the VRA is unconstitutional because it treats state sovereignity unequally. Liberal arguments say that the preclearance is important because second generation discrimination still exists, and that Congress did its homework and saw a need for the preclearance in 2006 when it renewed the VRA. Justice Anthony Kennedy could be the deciding vote in this case.
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Repost of Article
Law.com wrote:Congress renewed the Voting Rights Act of 1965 three years ago with wide bipartisan support. But on Wednesday, the future of the law seemed in peril, as conservative members of the Supreme Court expressed strong doubt about its constitutionality.
The Court heard oral arguments in Northwest Austin Municipal Utility District Number One v. Holder, a challenge to the preclearance provisions of the law which require that certain jurisdictions, but not others, submit proposed changes in voting laws or procedures to the Justice Department for approval to prevent dilution of minority voting power.
Justice Anthony Kennedy, whose vote will be crucial, voiced deep concern about the differential treatment of states under the law, and the affront to the sovereignty of the states that are required to go through the preclearance procedures.
In passing the law, Kennedy said, Congress "has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio. ... And the governments in one state are to be trusted less than the governments in the others." At another point Kennedy said, "No one questions the validity, the urgency, the essentiality of the Voting Rights Act," but he added, "The question is whether or not it should be continued with this differentiation between the states." That concern for sovereignty may mean he'll side with Court's conservative wing to form a majority to strike down the law.
As soon as the arguments were over, the audio was released to the media, and within minutes bloggers and others were offering their predictions about the outcome. Most foresaw bad news for civil rights advocates. J. Gerald Hebert, executive director of the Campaign Legal Center, who supports the preclearance provisions, came away thinking that Kennedy's comments were "more negative than positive," making him a possible but not certain loss to his side.
"The more likely scenario is five votes to strike down the Act," said Rick Hasen, a professor at Loyola Law School in Los Angeles who writes the Election Law Blog, after live-blogging the argument from the audio. But Hasen and others said that if Section 5 of the law -- the preclearance provision -- is struck down, an emboldened Democratic Congress may respond by passing what he called "a new and perhaps even better Voting Rights Act."
In the case before the Court, the small utility district in Texas, a covered jurisdiction, filed suit challenging the renewed Voting Rights Act soon after it was passed. It claimed that with changes in society and voting patterns, the pre-clearance provisions are no longer required and are unconstitutional. "After 20 years of steadfast compliance with the Voting Rights Act, [the district] is entitled to be free from the intrusive burdens of preclearance," the district's lawyer Gregory Coleman of Yetter, Warden & Coleman in Austin, Texas, told the justices.
Coleman's brief had offered the election of the first African American as president last fall as evidence that preclearance is not needed, but Barack Obama was not mentioned by name during the argument.
Wednesday was the final day of arguments for the current term, leaving the justices with May and June to complete writing of decisions in already-argued cases.
Justice Ruth Bader Ginsburg and other justices on the liberal side countered Coleman's argument by noting that Congress had made findings that the law was still needed because of what Ginsburg described as "second generation discrimination," where "the discrimination becomes more subtle, less easy to smoke out." Justice David Souter also said that no matter what progress has been made, preclearance is needed to keep discrimination from creeping back to weaken minority voter participation. "In the real world," Souter said, "if the Section 5 safeguard is taken away, the pushback is going to start. It has never stopped."
Deputy Solicitor General Neal Katyal also defended the law as a "paradigmatic" example of "what to do in Congress." Instead of reflexively renewing the law, he said, Congress held numerous hearings and gathered evidence on whether the law was still needed. "Congress looked at the evidence and determined that their work was not done."
Chief Justice John Roberts Jr. questioned that assertion, noting that only a small fraction of voting changes that are submitted for preclearance are denied. But that means that "Section 5 is actually working very well, that it provides a deterrent," Katyal countered.
Roberts brushed off that argument, analogizing it to an "elephant whistle" that someone might boast about. "There are no elephants, so it must work."
Justice Antonin Scalia also made light of the claim that widespread congressional support for the law's renewal deserved deference from the Court. "Everybody who voted for this system was elected under this system," said Scalia. "Should it be surprising that they think it's a good idea?"
Debo Adegbile, litigation director of the NAACP Legal Defense and Educational Fund, argued that "racial discrimination in voting has been persistent and adaptive," making Section 5 still essential. Picking up on Kennedy's concern about the differential treatment of covered and non-covered states under the law, Justice Stephen Breyer asked Adegbile why Congress did not consider applying the preclearance requirement to states other than those already covered.
Said Adegbile, "It wanted to stay the course of ridding the covered jurisdictions from discrimination."
The discussion of congressional support for renewal of the law also led to an unusual comment from Scalia. Noting that the Senate had approved the Voting Rights Act extension by 98 to 0 in 2006, Scalia mused that the Israeli Supreme Court used to have a rule that "if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there."
Scalia's invocation of the Israeli ruling to question the wisdom of unanimity was notable for two reasons. First, Scalia is a leader of the camp that thinks the Court should not look to foreign court rulings to guide its constitutional interpretation. [Though it should be noted that Scalia then referred to the court also as the Sanhedrin, the ancient Jewish court system that issued its last ruling more than 1,600 years ago.]
Second, it may have slipped Scalia's mind, but on Sept. 17, 1986, the Senate cast exactly the same unanimous vote, 98 to 0, on another matter before it: confirming Scalia's nomination to the Supreme Court.
If you read nothing else in this article, read the last two paragraphs for an excellent ironic lol.
What is the VRA?
The National Voting Rights Act of 1965 (42 U.S.C. § 1973–1973aa-6)[1] outlawed discriminatory voting practices that had been responsible for the widespread disenfranchisement of African Americans in the United States. Echoing the language of the 15th Amendment, the Act prohibited states from imposing any "voting qualification or prerequisite to voting, or standard, practice, or procedure ... to deny or abridge the right of any citizen of the United States to vote on account of race or color."[2] Specifically, Congress intended the Act to outlaw the practice of requiring otherwise qualified voters to pass literacy tests in order to register to vote, a principal means by which Southern states had prevented African-Americans from exercising the franchise.[3] The Act was signed into law by President Lyndon B. Johnson, a Democrat, who had earlier signed the landmark Civil Rights Act of 1964 into law.
tl;dr summary of article: SCOTUS is hearing a case which challenges a part of the Voting Rights Act, specifically a preclearance that requires some states (but not others) to submit changes in voting law to the DOJ. Conservative arguments question the need for the preclearance, and suggest that the VRA is unconstitutional because it treats state sovereignity unequally. Liberal arguments say that the preclearance is important because second generation discrimination still exists, and that Congress did its homework and saw a need for the preclearance in 2006 when it renewed the VRA. Justice Anthony Kennedy could be the deciding vote in this case.
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I thought the exact same thing.
Sorry post, consider it added to the OP for future reference.
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In reality, it's needed due to the rather constant obvious racial bullshit that happens in our elections still. An extra step of allowing others outside the region to review the proposed changes is not an undue burden at this point in time.
edit: made my case unclearly. I mean in the form of altering districts, polling locations, yadda yadda. Not instituting a voting requirement itself, which the VRA bans rightfully in all cases.
No conservative is going to come out and say that VRA is bad. All the arguments for this seem to be centered around the idea of constitutionality and state sovereignity. No one is suggesting that discrimination to prevent minorities from voting is a good idea. If this ruling overturns the VRA, I'm sure Congress would put together another bill.
That said, the question is this: if the current VRA is overturned, how quickly will Congress mobilize to put together another? If a law can't be implemented before the next election cycle, that's very bad.
The law picks out those states that showed a pattern of trying.
Hopefully Congress will do exactly this.
The district in question wants to move it's elections for a local comittee from private residences to the local school. That requires preclearance.
They want to be bailed out of section 5 or have it ruled unconstitutional (it's been ruled in favor twice by the supreme court already, we'd need a REALLY good reason to have those overturned)
The issue is the district wants out of the bailout. The lower court said they could not get out of it, as the bailout provision only worked for places that registered voters, and they were too small a subsection to count.
Reading through, I think the case should reaffirm section 5 and it's provisions, as the 3,500 person water and electric board should be bound by the same election rules as it's actual electoral district, and THAT should be applying for a bailout of section 5 status if they can prove they lack any racial bias anymore.
edit: and this is legally required to be a supreme court case by the VRA. It goes to a district court in DC, and any appeals are auto-supreme court cases.
It isn't even states IIRC, it is counties I believe. For instance I think there were two counties in South Dakota subject to the VRA provisions since they had a history of discriminating against Native Americans.
Basically it was an attempt to split the difference, which I think was a poor rationale, since it opens up attacks on it due to unequal treatment.
Initial law applied to any county that had a voting requirement in place the year it was passed (or the year before? something), be it education, morality, whatever.
It contained provisions to allow for new counties to be added if they created any such system, and for counties to appeal to be removed from it if they were tested and found to have no such issues anymore.
This entire issue is because a municipal division (not a county, just a municipal division IN a county) wants to use the bailout provision, and was told they can't, as it's a county by county thing.
One of the audio bits they played was Kennedy grilling Neal Katyal (the deputy solicitor general) about the sovereignty issue. Here's a bit if anyone's interested:
Is the Voting Rights Act Still Constitutional? - NPR
kildy mentioned this can't overturn the VRA, but I still don't understand why it couldn't. Everything I've read up to this point leads me to believe that SCOTUS could find it unconstitutional, which invalidatesthe whole thing.
What the entire thing is about is a subsection of the VRA that puts extra burdens on specific counties, and that was supposed to last 5 years, but keeps getting extended. They want that ruled unconstitutional. It's been upheld before, too.
Note that in the NPR piece:
Bolded is mine. They're not saying the VRA is unconstitutional, just the section that adds an oversight provision to specific counties.
edit: also note that they don't need to address the constitutionality of it at all if they don't feel like it, and can just rule (and likely WILL) that a MUD cannot ask to be removed from the provision, only a county. Which is the entire subject of the lawsuit: a MUD wants out, but the law covers county to county. It's like a person's house asking to be exempt: they can't is the answer.
Right, I understood that the specific extension was in question (I think I made mention of it in my OP, just thought the it was at the state level, not county), I just thought that if the extension were found unconstitutional, it would void the entire Act. I guess that's not the case?
I've heard this argument floated several times, and it's absolutely ludicrous. Looking at voting patterns in most of the states covered by the pre-clearance provisions, I see nothing in the 2008 election results that suggests this law is no longer needed.
Now, I don't see much positive evidence that it's needed, either, but it's not as if Obama was suddenly pulling bumfuck counties across the deep south, or anything.
I've also heard allusions to the widespread black representation across the south, which completely ignores the fact that many of those positions are at more local levels, often in districts/jurisdictions specifically gerrymandered to create token black representatives. There is not one black Senator from any of these states. And their Reps are, IIRC, disproportionately white as well.
Again, not necessarily a positive assertion in favor of the preclearance requirement, but certainly not an argument against it.
No, the SCOTUS can render portions of the VRA void while maintaining others.
EDIT: Personally I don't favor the extension in its current form...I'd prefer to see the law remain, but in the form of a "reboot" in which all states/counties are now not covered and new counties can be added as warranted.
SCOTUS has already declared the law fine twice, and in this case the appeals process doesn't even technically allow the MUD to ask for this, which is why the first case was decided against them.