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[Voting Rights Act] Redux
Chanus
Harbinger of the Spicy Rooster ApocalypseThe Flames of a Thousand Collapsed StarsRegistered User regular
Harbinger of the Spicy Rooster ApocalypseThe Flames of a Thousand Collapsed StarsRegistered User regular
http://thinkprogress.org/justice/2013/07/25/2354501/breaking-justice-department-will-ask-court-to-reinstate-voting-rights-act-in-texas/
Seems legit to me. Texas started reinstating their previously-struck-down, racist voting laws almost immediately. I would hope this works here, though I doubt it will hold up without a change in the makeup of the Supreme Court.
Attorney General Eric Holder announced on Thursday the first step the Justice Department will take to restore the voting rights gutted by a Supreme Court decision neutering a key prong of the Voting Rights Act. In remarks prepared for the National Urban League’s annual conference, Holder announced that the Justice Department “will ask a federal court in Texas to subject the State of Texas to a preclearance regime similar to the one required by Section 5 of the Voting Rights Act” — effectively restoring the safeguards against voter suppression in Texas that were stripped by the five Republican justices’ decision in Shelby County v. Holder.
Prior to the justices’ decision in Shelby County, states and counties with a history of racial voter suppression were required to “pre-clear” any new voting laws with the Justice Department or a federal court in D.C. Shelby County essentially shut this pre-clearance regime down by declaring the formula used to determine which states are subject to pre-clearance unconstitutional.
The Republican justices’ decision left another provision of the law intact, however. Under section 3 of the Voting Rights Act, a state can be brought back under the pre-clearance requirement if a court find that “violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred within the territory of such State or political subdivision.” Essentially, states with a recent record of attacks on the constitutional right to be free from race discrimination in voting can be brought back under federal supervision.
Seems legit to me. Texas started reinstating their previously-struck-down, racist voting laws almost immediately. I would hope this works here, though I doubt it will hold up without a change in the makeup of the Supreme Court.
Allegedly a voice of reason.
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Care to elaborate or is this just a useless jab?
QEDMF xbl: PantsB G+
Yeah, I don't really see why a re-evaluation of any state that was previously covered (or even states that weren't previously covered like Pennsylvania, Ohio, Wisconsin, etc) isn't a way to go about reclaiming voter protections and still abiding by the SCOTUS ruling.
Just look at the article.
"restore voting rights gutted by..."
"Republican Justices' " over and over
"restoring safeguards against voter suppression..."
The whole quote at the top is hyperventilated agitprop. it requires you to assume implied truths or accept implicit conclusions such as:
voter ID law has anything to do with preclearance
voter ID law is racist and / or redistricting is racist
Justices vote according to party political affiliation
Section 5 was the only safeguard against "suppression"
"voting laws" == "redistricting"
The Republican Justices made the decision rather than the SCOTUS as a body.
Now, you might agree that some of those things are true but you can't reasonably agree that they are undisputed facts. Moreover the use of language to delegitimize the decision is nothing but propaganda.
It also leaves out the salient point that the redistricting bill Texas passed uses a map drawn by a federal court after Texas a) asked the DoJ to pre-preemptively rule on a new set of district maps, b) did not get a response , c) passed the new map anyway, d) got sued by Democrats, forcing a loss of the primary calendar spot, and e) accepted a compromise map drawn by the court because we needed to have an election. basically, the map the DoJ is suing to block is the one we got because of the pre-clearance they wouldn't give the state when it was law, drawn in a suit won by Democrats.
I don't agree with the ruling in Shelby, but striking down Section 4 makes a whole lot more judicial sense (attacking the coverage formula) as opposed to striking down Section 5 (which would require ruling against some pretty strong precedent regarding Section 5 of Amendment 14 to the Constitution, and that would be catastrophic).
I think the opt-in procedure makes the most sense.
NPR was similarly fact-less this morning, and as of now I still don't have any clear idea what the DoJ is actually going to do or why it would work legally and Constitutionally.
What I am saying here is Chanus your OP is butts. :P
The OP pretty clearly worked out legally and constitutionally. The section was struck down by the court for violating the constitutions requirement that laws be no more than 7 years old. This fixes that because aside from the law, a court can also order a region to go through preclearance. This decision would be less than 7 years old so should be fine for a year or two.
Yeah that's not an accurate description of events at all. Texas Republicans knew their plan couldn't pass pre-clearance so they intentionally avoided it and went to the Federal courts hoping to challenge Section 5.
Houston Chronicle, Aug 2011
The DOJ did rule. They said the redistricting was discriminatory. Federal Courts said that the Texas defense that the redistricting was only motivated by partisan interests - a disgraceful position itself - was false and that it was racially discriminatory. A Court then did an interim, emergency redistricting that was intended to be only used in 2012 and lacked the review of the DC Federal Courts.
The interim maps were only used because Texas acted in such racist bad faith that there was no other option for 2012. That doesn't mean that the interim maps are not also discriminatory. Perhaps this "misunderstanding" of the actual events is coloring your ability to judge whether a source is accurate.
QEDMF xbl: PantsB G+
1) Whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b (a) of this title based upon determinations made under the first sentence of section 1973b (b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, or whenever
Pretty clear adding voter ID is a change in qualification or prerequisit for voting. Which is something that requires pre-clearance. This isn't an implied anything, its right in the fucking VRA.
2) From the Federal Courts ruling on TX's most recent redistricting: "Furthermore, it is clear Mr. Interiano knew that using census block data to identify the demographics of voters could advance the goal of maximizing Republican electoral strength by suppressing the minority vote. As previously discussed, in early December 2010, Eric Opiela, counsel to Speaker Straus, suggested to Mr. Interiano that voting and population data might permit distinctions between minorities who turn out heavily to vote and those who do not; with such information, he suggested, districts could be drawn that would retain a large minority population but actually include a much smaller number of minority voters. Defs.’ Ex. 304."
3) It was a 5-4 decision based on a ridiculous legal claim previously rejected by Scalia's entire judicial philosophy(that the passage of time alters what is or isn't constitutional). Maybe he voted with the majority because he ate a bad ham sandwich, or maybe he reversed his entire legal viewpoint(till the next day when he wrote his asinine dissent in the DOMA case), or maybe he just voted with the 4 other Rs on the court.
4)The nature of the courts means requiring preclearance was the only thing preventing suppression. Election aren't reversed based on how the people who should have been allowed to vote would have voted had their rights not been suppressed immediately prior to the election. More over your assertion here makes no sense. If my breaks stop working it still is a major blow to me not being in an accident, even if my steering still works.
5)I'm not sure where you are getting this, or what you are trying to assert. Redictricting was previously covered by preclearance, TX has with in the last election cycle had it's redistricting shown to be intentionally designed to dilute the influence of minority voters. Therefor TX should be bailed-in to pre-clearance; which also covers all its voting laws.
6)This doesn't actually require you to assume anything, It was a 5-4 party line vote. More over the phrase you are so objecting to "Republican Justices' decision" has a 3rd word which is actually relevant. Since the controlling opinion was only signed onto by the Republican Justices'. The 4 other jsutices could have also voted to strike the law and signed an opinion that the law is unconstitutional because it fails to cover people in Minnesota, and the decision of the court would have still been the republican's.
Like your entire point seems to be arguing against established facts, plus a couple random sputterings that aren't even coherent ideas.
It doesn't really change whether the ThinkProgress OP is accurate or biased. That quote doesn't include any details at all about how redistricting transpired before the 2012 election.
It is easier to go after the worst offenders than to get people to agree to harmonize election laws everywhere.
Also, something something states' rights even if it makes no sense in this case.
Considering how far the Court could have gone, Shelby is a pretty limited decision, most of the legal community was worried Katzenbach would be overturned AND Section 5 preclearance would be ruled unconstitutional.
Spool32 isn't wrong when looking at NAMUDNO and Shelby. He however, is very wrong when it comes to voter ID being subject to preclearance. Voter ID is a change for preclearance exactly as tinwhiskers says.
The major downside to using section 3 bail in procedures is that the areas that need preclearance the most are going to take a long time to bail in.
The statements about the constitutionality of the VRA in Northwest were dictum; in other words, they were legally irrelevant side-comments.
If you hinge an upheaval of existing case law on your own grumpy dictum from a few years ago, you are not the most intellectually honest judge.
the constitution is a shitty set of guidelines to run a modern country, and this is the best we've been able to hammer it into working as
A unanimous court concluded this:
More than 40 years ago, this Court concluded that
“exceptional conditions” prevailing in certain parts of the
country justified extraordinary legislation otherwise unfamiliar
to our federal system. Katzenbach, 383 U. S., at
334. In part due to the success of that legislation, we are
now a very different Nation. Whether conditions continue
to justify such legislation is a difficult constitutional question
we do not answer today.
That's the legal equivalent of saying get it together Congress. Again I don't agree with where the Court went in Shelby, even though the coverage formula is suspect. More important the entire Shelby case is an exercise of remarkable constraint (even though I am sure that isn't the prevailing opinion on these forums). SCOTUS could have shot down section 5, and that would have overturned decades of very important congressional precedence and shut down a mechanism of congressional enforcement of the 14th and 15th amendments. All they did in Shelby was shut off the preclearance formula which had the effect of removing preclearance on all the states while allowing the government to prove why those states should be covered today. More importantly it left the Katzenbach/City of Boernes line of cases alive which would have been disastrous if they were overturned. That is the least harm that could have been done and trust me, not many of the attorneys in DC thought the opinion would be that limited.
Let me make it clear though, I disagree with the Chief Justice in Shelby. I think the coverage formula should have stayed because Congress passed the law pursuant to its Section 5 power under Amendment 14. To overrule that power goes against the constitutional order that the amendment set in motion. Meaning that if the VRA was a bad idea, the right place to vindicate that issue is in Congress or by amending the Constitution. Not by second guessing Congress when the Constitution expressly gives that job and authority to Congress.
Regardless, section 3 bail in should work and I hope Texas is a good test for that. Particularly with its terrible section 2 record.
Side edit:
Hamurabi that is because the Constitution states that the time manner and place of elections are fixed by the states first subject to national approval by Congress. IE the Constitution gives the states the power to make independent election laws from the other states. GRANTED, that doesn't mean Congress cannot try to make uniform voting laws, or that Congress couldn't create a set of federal laws that the state governments should just follow afterwards (for example, Congress initially allowed 18 year olds to vote in the VRA but it only applied in federal elections. Most states got pissed having to maintain separate voting roles for state and federal elections and some states just followed federal rules in the VRA. What resulted was the 26th amendment allowing everyone to vote at 18 regardless of state.
You selected a quote that explicitly says, in the Northwest holding, that the Northwest holding is not addressing the question raised and answered in Shelby.
Sorry to appear flippant, but that renders the case largely dictum with respect to the question they explicitly disclaimed.
And that aside, writing out something along the lines of, "Some of us don't like [X] and would like to do something about [X]!" has, mmm, pretty much zero precedential value, any ways; such a statement is not, itself, any kind of valid reason to overturn X.
Because Justice has limited resources.
Dictum is largely in the eyes of whoever comprises the majority as well so there's that. If you read NAMUDNO you'll see that it pretty clearly is about deep reservations that the entire court had about sections 4 and 5 and the merits of its broad application to things like utility districts which weren't in the original design of the VRA. Next, re-listen to Rein's oral argument in Shelby v. Holder, the entire underpining of his oral argument is the conclusion I cited from NAMUDNO.
The fact that the preclearance formulas (section 4) weren't decided in NAMUDNO doesn't somehow make the case useless when applied to section 5 or section 4 when it came to Shelby. The reservations the court held in NAMUDNO were valid legal opinion and were applied to make the holding in Shelby. I just don't what you are trying to argue other than you are wholesale saying NAMUDNO didnt matter, except oh wait, it is the basis for the majority's opinion. You certainly can disrespect the validity of that opinion all you want and I certainly do that, but it takes a bit more than throwing out 36 pages of reasoned argument by saying "Bah it was dictum: irrelevant". If I were fighting against the VRA NAMUDNO would have been the first case I went to because again, its a unanimous court decision that discussed section 4 and 5 with grave reservations, but happened to avoid making decision about section 4. The reservations and legal argument from NAMUDNO ended up giving you the holding in Shelby. I mean, the case is cited over 80 times in the majority opinion for all the crucial arguments so. Yeah...dictum. From a legal perspective, the Court's ruling was intellectually legitimate.
If we were to follow your line of thinking we never would have gotten past Lochner. Wickard v. Filburn and Darby lumber company were the two cases that spelled the end of Lochner, Hammer v. Dagenhart, and Carter v. Carter Coal. Wickard and Darby were based on issues not directly decided in Jones and Laughlin Steel. The point is that even though cases like NAMUDNO and Jones and Laughlin didn't directly decide the matter, the Court has a valid an intellectual claim to use prior ideas that were expounded on in prior cases and then make official rulings later when it suits it. Thats how we got Shelby and it's how we got rid of Lochner.
And let's not just shoot it off as some grumpy dictum, even my fellow liberal voting rights attorneys had reservations about sections 4 and 5 before NAMUDNO was decided. There was a valid question about how much congressional deference does Congress get after the broad latitude granted in Katzenbach that was then limited in City of Boerne to a congruence and proportionality standard. Thankfully the Court left that whole issue alone in Shelby but NAMUDNO made it clear that there was a problem with sections 4 and 5.
To sit and pretend like some major upheaval happened to case law is wrong. Shelby followed through on NAMUDNO without overturning Katzenbach or City of Boerne and left Section 5 completely alone. Section 4 got overturned but there wasn't a ton of precedent on section 4 formulas. The two cases on that are Shelby and NAMUDNO. For me it's hard to see where the intellectual dishonesty comes from when years before Shelby the Court unanimously said they had deep reservations about sections 4 and 5 and their applicability to a changed America. Congress didn't listen that's why we have Shelby. The Court basically followed through on their warning. And lets be clear, plenty of past court decisions don't give Congress that level of warning and at least the Chief Justice has attempted to do so numerous times while he's been on the bench.
All of that is besides the point though: The real issue is that Texas has a long history of denying minorities the right to vote. Such a long history in fact, that the Supreme Court has a name for the line of cases called the Texas White Primary cases. A line of cases stretching decades where the Court consistently shot down Texan attempts to deny blacks the ability to participate in general and primary elections. It's not terribly hard to imagine that Texas has, after looking at a totality of the circumstances, acted to abridge the ability of minorities to exercise their right to vote under the 14th and 15th amendments. A court already ruled that the maps used by Texas were discriminatory against minorities so proving that those maps satisfy section 3 shouldn't be that hard. Additionally, the piecemeal bail in procedure should avoid the issue that the Supreme Court had in Shelby and NAMUDNO, namely that an outdated formula isn't dramatically reducing states' rights and instead, each jurisdiction covered under section 3 has a particularized showing that the jurisdiction should be subject to section 5 preclearance.
All in all, good on Holder.
Guess who's supposed to make the determination on when the law is no longer necessary? Congress.
Guess who rants all the fucking time about courts deciding they're legislatures (including, recently, saying this was a cause of the fucking Holocaust)? Scalia.
If Scalia were at all consistent in his own nonsense, he would not have ruled unconstitutional, he would have said it was the duty of Congress to decide (and they had as recently as 2006), not SCOTUS.
Because he presumes to not believe in legislating from the bench.
Except when it suits his political bent.
No. Though, I wouldn't put it in those exact words.
Congress had been told that the law was outdated and unconstitutional. Their refusal to update it led to it being declared unconstitutional the next time someone brought it up. Consequently, it was sent back to them to update and reapply.
Not quite seeing the disconnect. Scalia sent it back to Congress to legislate. Back in their court. The Court was responsible to declare constitutionality, and Congress is now responsible to update the law to fit that.
Frankie the problem is that Justice Scalia, during oral argument in Shelby stated that there are times where Congress cannot be trusted to do its job and the Supreme Court should, during those times of immense political pressure, step in and resolve congress' problems. After that 2 minute diatribe the Court was silent because that is striking to hear from any Justice post Lochner and really surprising coming from Scalia. His method of judicial interpretation is entirely based on originalism/original understanding which means look to the original intent of the document as a guide to answer judicial questions. Using that the 14th and 15th amendments should clearly justify going forward with approving at least section 5 and in my mind section 4 of the VRA. But to take away Congress' job, when it is expressly their job under those amendments is a remarkable amount of judicial interference particularly because such a move would be because Justice Scalia deemed the issue unsolvable because of politics. That is uh....it's all over the place out of sorts with Scalia's judicial theory.
Politically, like I said earlier, there was plenty of liberal concern about the VRA as well. Particularly in the VRA's remarkable ability to create inefficient districts that leaned democratic. Because the VRA allowed vote packing of minority majority districts what often resulted in covered jurisdictions were districts where Democrats would win by over 55%, commonly 60%+. Which means democratic voters were being funneled into less districts making it easier for republicans to win more districts by narrower margins, like 52% to 48% splits favoring a Republican.
Legally there were lots of liberal thinkers, including the Brennan Center, that were worried that it was hard to justify preclearance using a formula that was decades old. Liberals like myself felt that those issues were properly dealt with by Congress and its voluminous findings when the Act was recently re-enacted. Particularly as it relates to Shelby County, a county rife with voting election problems.
On what grounds?
That's not really relevant to why it was sent back. The point is that this did not appear out of nowhere. The court had previous decided that the law needed to be updated to remain constitutional. Congress failing to address that forced the court to make them address it.
The ground for which it was determined unconstitutional aren't relevant to why it was ruled unconstitutional?
Worse, he's insisting that it was Congress's job to fix an undefined problem within an undefined timeline.
It's like the opening scene of "Super Troopers," where the officers demand that the drivers pull over, even though they're already parked on the side of the road.