The Supreme Court rules on a key part of the Voting Rights Act.
June 25, 2013 11:30 AM   Subscribe

In a 5-4 decision, "The Supreme Court on Tuesday gutted a key part of the landmark Voting Rights Act."

With the court's conservatives in the majority, the ruling holds that requiring federal approval for states to change voting rules is unconstitutional.

President Obama said he was “deeply disappointed” by the court’s decision in a statement released on Tuesday.

“I am calling on Congress to pass legislation to ensure every American has equal access to the polls,” Obama said. “My administration will continue to do everything in its power to ensure a fair and equal voting process.”

The Voting Rights Act requires nine states with a history of discrimination at the polls, mostly in the South, to get approval from the Justice Department or a special panel of judges before they change their voting laws. The rule also applies to 12 cities and 57 counties elsewhere.

“Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions,” Roberts wrote for the court.

Leaders at "ground zero" for the case -- the state of Alabama and its Shelby County -- claimed victory. "It reflects how conditions have improved since 1965," Gov. Robert Bentley said in a prepared statement. County Attorney Frank Ellis cheered the idea that places will no longer be "punished by the federal government for conditions that existed over 40 years ago." On the other side, the American Civil Liberties Union's Laughlin McDonald issued a statement saying the ruling poses a "real challenge to Americans' fundamental right to vote.

The American Prospect calls this ruling part of the Supreme Court's War on the Great Society.

John Fund, at the National Review, calls it a "Civil-Rights [sic] Victory."

Charlie Pierce offers his commentary.
posted by MisantropicPainforest (259 comments total) 38 users marked this as a favorite
 
In other words, if you think that certain states run by a certain party were chipping away at voting rights by passing certain laws before now...
posted by Halloween Jack at 11:33 AM on June 25, 2013 [15 favorites]


“Our country has changed"


Yeah. It's changed. Not in the way Roberts thinks, though.

We've seen more concerted efforts to suppress minority voting in play in recent years than at any time since Reconstruction and this is how the Supreme Court responds to it?

Not just a disappointing decision, considering the historical context, but a shameful one.
posted by saulgoodman at 11:33 AM on June 25, 2013 [58 favorites]


It's hard for me to NOT see this as rather unAmerican.
posted by hal_c_on at 11:34 AM on June 25, 2013


The opinion is online [PDF], for those interested in reading it in full.
posted by cjelli at 11:36 AM on June 25, 2013 [3 favorites]


If you're a Republican, this is a lot easier than continuing on with the whole "minority outreach" charade.
posted by The Card Cheat at 11:36 AM on June 25, 2013 [42 favorites]


This is a great opportunity to have a federal system for drawing congressional districts based on the California non-partisian model.
posted by humanfont at 11:36 AM on June 25, 2013 [2 favorites]


F7U12
posted by klangklangston at 11:36 AM on June 25, 2013 [5 favorites]


Texas is quick on the draw, two hours in:
Within two hours of the Supreme Court’s decision on the Voting Rights Act, Greg Abbott, the attorney general for the state of Texas, announced that a voter identification law that was blocked last year by the Justice Department would go into effect.

“With today’s decision, the state’s voter ID law will take effect immediately,” he said in a statement. “Redistricting maps passed by the legislature may also take effect without approval from the federal government.”

In March 2012, the Justice Department objected to Texas’ voter identification law, finding that under certain data sets “Hispanic registered voters are more than twice as likely as non-Hispanic registered voters to lack such identification,” and that the locations and hours of license offices made it difficult for many Hispanics to attain that identification.

Texas also sought clearance through the an appeals court in Washington, which offers a separate track for jurisdictions under the Voting Rights Act. In a unanimous opinion, the three-judge panel ruled that the voter ID law would hinder minority turnout and impose “strict, unforgiving burdens on the poor.”
Roberts is right that things have changed. Now we can disenfranchse minorities AND poor people in one fell swoop!
posted by Phire at 11:37 AM on June 25, 2013 [54 favorites]


Interesting comment from Josh Marshall:

There’s surprisingly little discussion today of the fact that a jurisdiction can get out of under the pre-clearance standard by simply demonstrating over a ten year period that they’re no longer abusing/discriminating against minority voters in the jurisdiction. And a substantial number of jurisdictions have been able to do that, especially with revisions to the law passed in the early 1980s. [...] New England got entirely out of under the VRA pre-clearances process (yes, there were covered areas) basically by not being racist.

But, you know, that's hard.
posted by RedOrGreen at 11:37 AM on June 25, 2013 [36 favorites]


From the dissent:

“Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet,” Ginsburg wrote.
posted by MCMikeNamara at 11:37 AM on June 25, 2013 [125 favorites]


This is a Roberts decision, but it really reads like Scalia's go-to "We live in an enlightened golden age, so we don't really need [insert law conservatives don't like, but only BECAUSE LIBERTY and not because they would ever actually abuse it, dear me no]" reasoning. Ugh.
posted by Holy Zarquon's Singing Fish at 11:37 AM on June 25, 2013 [8 favorites]


God I wish Kennedy would just go ahead and retire and get replaced. Same with Scalia. Continuing to be mad about the 60s is just going to keep the Republican party locked in a backwards mindset forever.

Oh well hopefully Obama can replace the remaining old liberals and continue to try to wait out Scalia and Kennedy. With the Republicans increasing challenges on the Presidential front this problem will hopefully be solved before too long.
posted by vuron at 11:38 AM on June 25, 2013 [1 favorite]


The subtext of this decision would seem to be: "You got ona yer own elected, so sit down and shut up."
posted by computech_apolloniajames at 11:38 AM on June 25, 2013 [3 favorites]


Now if they can just scrape up a few workhouse and debtors' prisons cases, they can finally take us all the way back to when "men were free" (and nobody or nothing else counted or mattered).
posted by Benny Andajetz at 11:38 AM on June 25, 2013 [2 favorites]


Charlie Pierce highlights the absurdity:
(Also, in a neat trick, the decision transfer the burden of a voter-suppression law from the state to the person whose vote is being suppressed. It used to be that the jurisdiction had to prove it was not being discriminatory. Now, the voter must prove individual discrimination, which the voter cannot usually do until his or her vote already has been suppressed. Nifty!)
posted by tonycpsu at 11:39 AM on June 25, 2013 [15 favorites]


As bad as a decision as this is, the Senate reauthorized VRA in 2009 by a unanimous vote. Let's hope they get to work on this ASAP.
posted by roomthreeseventeen at 11:40 AM on June 25, 2013 [2 favorites]


With the court's conservatives in the majority, the ruling holds that requiring federal approval for states to change voting rules is unconstitutional.

That is not what the majority ruled. The majority ruled that the formula used to determine which localities were subject to such "preclearance" needed to be updated and revised.
posted by notyou at 11:42 AM on June 25, 2013 [1 favorite]


roomthreeseventeen: "As bad as a decision as this is, the Senate reauthorized VRA in 2009 by a unanimous vote. Let's hope they get to work on this ASAP."

It has to be reauthorized by both houses of Congress, and the makeup of the House has changed significantly since 2009. "Let's hope" is about all we have, because the actual chances of this happening are virtually nil.
posted by tonycpsu at 11:42 AM on June 25, 2013 [6 favorites]


Rick Hansen is on Talk of the Nation now (audio not yet available), so his blog isn't up yet, but here's what he said about this possibility earlier this month.
posted by crush-onastick at 11:43 AM on June 25, 2013 [1 favorite]


Also, voting to kill the VRA is a lot less defensible in campaign commercials than bogging down the new coverage formulas in arguments over mathematical minutiae until forever.
posted by Holy Zarquon's Singing Fish at 11:45 AM on June 25, 2013 [4 favorites]


The Citizens United ruling of civil rights.
posted by Thorzdad at 11:45 AM on June 25, 2013 [15 favorites]


Well based upon the 2012 cycle of intimidation backfiring on the Republicans, hopefully this will be yet another indictment in the mind of minority and other largely disenfranchised voters that the right to vote needs to be protected and one party is definitely looking to undermine that.

Voter ID is going to suck as will the no doubt restrictive laws passed to block voter registration drives but if Republicans push this too much it will come back and haunt them because they can't keep relying on the old white male vote indefinitely.
posted by vuron at 11:46 AM on June 25, 2013


I'm reminded of the saying "If voting changed anything they'd make it illegal."
posted by octobersurprise at 11:49 AM on June 25, 2013 [18 favorites]


It's days like today that I have a hard time believing the arc of the moral universe bends toward justice
posted by entropicamericana at 11:49 AM on June 25, 2013 [8 favorites]


Well it doesn't bend all on its own.
posted by notyou at 11:50 AM on June 25, 2013 [25 favorites]


Between this and the thread this afternoon about the pro-choice filibuster, I'm curious if there's any data correlating legislation and shifting demographics. Are we going to see a shift as minorities leave states that discriminate against them and move elsewhere?

I'm imagining states like Texas in thirty years populated only by old, white, male oil barons as they've basically outlawed being female, non-white, lower-class, educated, and whatever else. More likely it just gets shittier for everyone to live there since few people have the means to just up stumps and go elsewhere.
posted by backseatpilot at 11:52 AM on June 25, 2013 [2 favorites]


I have a hard time believing the arc of the moral universe bends toward justice

I figure that's sort of an infinite monkeys with infinite time type of thing. Given enough time, the arc of the moral universe bends toward justice! And then back again. And back and forth and all over the place.
posted by echo target at 11:53 AM on June 25, 2013


> The Citizens United ruling of civil rights.

Not even. While I don't like CU, I have to concede that there are pretty strong Constitutional arguments in its favor - do remember, this was a court case about CUNT, "Citizens United Not Timid", who got together to make a movie critical of Hillary Clinton. While I completely detest CU, as it's called today, their right to get together to do things like "make movies about politics" seems fundamental to the First Amendment.

But this ruling is simply a piece of crap with no Constitutional justification that I can see. For shame.
posted by lupus_yonderboy at 11:53 AM on June 25, 2013 [2 favorites]




The 15th amendment to the constitution:
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Seems pretty straight forward to me.

The odds or overturning this republican decision in the republican house is pretty low. But I'm sure with PRISM and everything it'll be easy for the president get out the youth vote to vote democratic in 2014.
posted by delmoi at 11:57 AM on June 25, 2013 [2 favorites]


to hell with legislation - we need a constitutional amendment that flat out says we have the right to vote

let anyone opposed to it have to explain to the public why they're against a fundamental right to vote
posted by pyramid termite at 11:57 AM on June 25, 2013 [9 favorites]


I'm sure with PRISM and everything it'll be easy for the president get out the youth vote to vote democratic in 2014.

"Vote Democrat: Because you don't want us to send your browser history to your parents."
posted by Holy Zarquon's Singing Fish at 11:58 AM on June 25, 2013 [9 favorites]


So the result here is that not even the government can stop the government from discriminating against the citizens? Welcome to the rabbit hole.
posted by Benny Andajetz at 11:59 AM on June 25, 2013 [4 favorites]


I've been hoping to see numbers on how many times changes in the covered areas have gone to the Justice Department, and what percentage have been rejected. Wouldn't that be a better way of measuring the need for the law?
posted by benito.strauss at 11:59 AM on June 25, 2013 [1 favorite]


I'm imagining states like Texas in thirty years populated only by old, white, male oil barons as they've basically outlawed being female, non-white, lower-class, educated, and whatever else.

You still get to live here and pay taxes. You just can't vote.

The last couple of days have made me pretty clear that I need to direct my political donations not to Obama, but to Battleground Texas and to the group that's working to elect statewide county officeholders, because that's the way to effect real change in Texas. Today's decision has made it a lot harder, but it wasn't going to be easy anyway.

The idea that there's no voter suppression in Texas is boggling. We had problems in 2008 in CD10 where Waller County was refusing to put voting machines on a historically black campus (Prairie View A&M). The problems were so bad that the Bush Justice Department intervened. But hey, Obama got elected, so that proves voter suppression is over, I guess?
posted by immlass at 12:00 PM on June 25, 2013 [7 favorites]


I'm reminded of the saying "If voting changed anything they'd make it illegal."
posted by octobersurprise at 2:49 PM on June 25 [1 favorite +] [!]


Epony... never mind.

It's actually a fairly brilliant (if vile) meta-strategy in the part of the GOP. Faced with a world moving past their policies and the inevitable drift of voters away from their outdated mindset, they are ensuring continued success by trying to make sure that only likely Republican voters get to cast votes. Winning a plurality of the populace is time-consuming and expensive: winning a plurality of people likely to vote for you anyway is much easier.
posted by ricochet biscuit at 12:00 PM on June 25, 2013 [3 favorites]


“Our country has changed"

Justice Roberts, I'll look forward to your written opinion arguing that Prop 8 should be struck down beginning with this very sentence.

These decisions are the true legacy of the Bush years. You only thought they were over.
posted by dry white toast at 12:01 PM on June 25, 2013 [17 favorites]


After today, I fully expect the Prop 8 decision to hold that gay marriage violates the 9th Amendment.
posted by Holy Zarquon's Singing Fish at 12:01 PM on June 25, 2013


This is a hail mary to help the Republicans in a couple of national elections at best. The major impact will probably be in how redistricting gets even more gerrymandered in favor of the Republicans because the fight will largely be about trying to keep the House firmly in the hand of the wingnuts.

Disappointing because there is basically no way this is going to get countermanded by the Congress in the current environment and the Senate Republicans will try to block the democrats from even passing symbolic legislation to undermine Republican credibility even further
posted by vuron at 12:01 PM on June 25, 2013 [1 favorite]


> The Citizens United ruling of civil rights.
> Not even.


I get what you're saying. I guess what I'm referring to are the unintended consequences. This ruling is going to have long, ugly coattails, much as the CU ruling did.
posted by Thorzdad at 12:01 PM on June 25, 2013


From The Atlantic's recent article Can Democrats Win Back the Deep South, this sentence tells you how far we've come: "In April, Bland had found a stuffed dog hanging from a noose outside his insurance business." Some southerners have progressed from lynchings to simply sort of hinting at lynchings with baby toys.

I live down here, so I know in my heart this is a very bad ruling. There are some truly evil, hateful, racist people down here and a lot of them get re-elected over and over.
posted by loosemouth at 12:04 PM on June 25, 2013 [14 favorites]


Also, in a neat trick, the decision transfer the burden of a voter-suppression law from the state to the person whose vote is being suppressed. It used to be that the jurisdiction had to prove it was not being discriminatory. Now, the voter must prove individual discrimination, which the voter cannot usually do until his or her vote already has been suppressed. Nifty!

Just to put this into stark relief: if the GOP had swept the elections last year after state officials in PA, FL, TX, and WI had basically admitted that their voting laws were meant to support Democratic voters and minority voters in particular, under this ruling those whose votes were suppressed would have to address their complaints individually and to a DOJ (and courts apparently) actively hostile towards them.

So, yeah, this is very very very bad, and has zero redeeming qualities whatsoever. And before the usual "this is worth it to prevent voter fraud " argument gets trotted out, that line of bullshit has been heavily debunked many times over. Anyone who thinks a couple dozen fraud cases are worth tens (if not a hundred-plus)of millions of votes potentially being suppressed in the name of "freedom" (for who, exactly?) needs to get their fucking head checked.
posted by zombieflanders at 12:04 PM on June 25, 2013 [12 favorites]


The Supreme Court telegraphed years ago that they didn't like the preclearance formula, and Congress is on the hook for not getting ahead of the ball on this one. If they had amended the formula so that it took into account a state's statistics from the last ten years instead of from a fixed date fifty years ago, we wouldn't be having this conversation.
posted by Jairus at 12:05 PM on June 25, 2013 [9 favorites]


These decisions are the true legacy of the Bush years. You only thought they were over.

These sorts of decisions are among the reasons why voting for a presidential candidate that you don't want (or not voting) to "teach the party a lesson" are so short sighted. The single most important thing a president does over his (or, hopefully one day soon, her) time in office is to nominate Supreme Court justices.

In the long run, you end up paying very, very dearly for the lesson you attempted to teach - and they don't learn any lessons (except maybe "turn more to the middle because X people won't vote for us anyways").
posted by Joey Michaels at 12:06 PM on June 25, 2013 [13 favorites]


Also, question for the leagal beagles among us:

It strikes me that the argument "sure, we needed these things back when there was a problem, but it's all better now" could be used to attack any number of individual protections. Unions are a strong example that comes to mind (I know people I otherwise consider pretty sane that argue that we might have needed unions back in the steel mill days, but they're antiquated now).

Is this type of argument now case law that can be referred to when arguing other protections beyond things like voting rights?
posted by dry white toast at 12:07 PM on June 25, 2013


I'm imagining states like Texas in thirty years populated only by old, white, male oil barons as they've basically outlawed being female, non-white, lower-class, educated, and whatever else.

Thirty years ago, California was the Republican stronghold Texas is today, home of Ronald Reagan and Richard Nixon. Less than 20 years ago, Pete Wilson successfully defended his governorship with race-baiting garbage like this.

The same trends that turned California into a total loss for Republicans are working their magic on Texas. In thirty years, a Republican party substantively like the one today won't have a hope in hell of winning statewide races in Texas, no matter how much they fight the tide with voter suppression and whatnot.
posted by [expletive deleted] at 12:10 PM on June 25, 2013 [7 favorites]


The Supreme Court telegraphed years ago that they didn't like the preclearance formula, and Congress is on the hook for not getting ahead of the ball on this one. If they had amended the formula so that it took into account a state's statistics from the last ten years instead of from a fixed date fifty years ago, we wouldn't be having this conversation.

You should really read up on this. See upthread about MA districts losing the preclearance requirement after 10 years.

Also, FWIW, preclearance should have been extended to every district in the country. There are numerous instances of voter laws proven to be discriminatory just in the last couple of years in non-Section 5 states.
posted by zombieflanders at 12:11 PM on June 25, 2013 [2 favorites]


Next up, the 13th Amendment. "Because times have changed...back!"
posted by The Card Cheat at 12:11 PM on June 25, 2013


Dry white toast: Compare Scalia's decision in Hudson v. Michigan, where he reasoned that we don't need the exclusionary rule anymore because police departments are so darned scrupulous nowadays.
posted by Holy Zarquon's Singing Fish at 12:12 PM on June 25, 2013


Also, FWIW, preclearance should have been extended to every district in the country.

Congress can certainly do that. If they weren't impotent and useless. The only reason the VRA was renewed is because they didn't make any changes.
posted by smackfu at 12:12 PM on June 25, 2013


Ugh, "admitted that their voting laws were meant to suppress" in my post above.
posted by zombieflanders at 12:12 PM on June 25, 2013


I've been hoping to see numbers on how many times changes in the covered areas have gone to the Justice Department, and what percentage have been rejected. Wouldn't that be a better way of measuring the need for the law?

That idea comprises a portion of the dissent, actually, starting at page twelve, because that is exactly what congress looked at when it re-authorized the VRA in 2006 -- not only the actual percentages of people voting, but also the number of attempts to alter voting laws and whether those attempts were or were not justified.

From the dissent:
Congress found there were more DOJ objections between 1982 and 2004 than there were between 1965 and the 1982 reauthorization...All told, between 1982 and 2006, DOJ objections blocked over 700 voting changes based on a determination that the changes were discriminatory...Congress found that the majority of DOJ objections included findings of discriminatory intent ...and that the changes blocked by preclearance were “calculated decisions to keep minority voters from fully participating in the political process.”...On top of that, over the same time period the DOJ and private plaintiffs succeeded in more than 100 actions to enforce the §5 preclearance requirements...

Although covered jurisdictions account for less than 25 percent of the country’s population, the Katz study re­vealed that they accounted for 56 percent of successful §2 litigation since 1982. Impact and Effectiveness 974. Controlling for population, there were nearly four times as many successful §2 cases in covered jurisdictions as there were in noncovered jurisdictions [during 1982-2004, the span covered by the study]...From these findings—ignored by the Court— Congress reasonably concluded that the coverage formula continues to identify the jurisdictions of greatest concern.
posted by cjelli at 12:12 PM on June 25, 2013 [19 favorites]


Jairus: "The Supreme Court telegraphed years ago that they didn't like the preclearance formula, and Congress is on the hook for not getting ahead of the ball on this one. If they had amended the formula so that it took into account a state's statistics from the last ten years instead of from a fixed date fifty years ago, we wouldn't be having this conversation."

And if my aunt had balls she'd be my uncle. Congress should not be in the business of defending itself against rulings which blatantly violate the 15th Amendment. If Congress thought that formula was good enough (and they did, nearly unanimously) then that should remain the law, because as the Lemieux link in the FPP points out:
To be constitutional, legislation enforcing the 15th Amendment needn't be "ideal," it need only be "appropriate."
The Supreme Court exists to rule on the constitutionality of laws passed by Congress, not to micromanage formulas contained therein.
posted by tonycpsu at 12:13 PM on June 25, 2013 [13 favorites]


The same trends that turned California into a total loss for Republicans are working their magic on Texas. In thirty years, a Republicans substantively like the one today won't have a hope in hell of winning statewide races in Texas, no matter how much they fight the tide with voter suppression and whatnot.

Gotta give em credit, though. Republicans just want to win more. No matter what it takes or how much of society they tear down to do it.
posted by Blazecock Pileon at 12:13 PM on June 25, 2013 [5 favorites]


The Citizens United ruling of civil rights.

You mean it'll have no effect on election outcomes? Well, one can hope.
posted by to sir with millipedes at 12:13 PM on June 25, 2013


Joey Michaels: "These sorts of decisions are among the reasons why voting for a presidential candidate that you don't want (or not voting) to "teach the party a lesson" are so short sighted. The single most important thing a president does over his (or, hopefully one day soon, her) time in office is to nominate Supreme Court justices.

In the long run, you end up paying very, very dearly for the lesson you attempted to teach - and they don't learn any lessons (except maybe "turn more to the middle because X people won't vote for us anyways").
"

Or, to put a finer point on it: Fuck you, Nader voters.
posted by tonycpsu at 12:14 PM on June 25, 2013 [5 favorites]


Exactly [expletive deleted]. This is a losing strategy in order remain in some degree of power today and devil take the long term consequences to the party in the future.

The truth of the matter is the Republican party in it's current configuration is marching steadily towards permanent opposition party status and while rulings like this might slow that down some they don't undo the fundamental demographic shifts at work and if anything they'll harm the party in their attempts to rebrand themselves into a minority friendly party.

But this current configuration of Republicans is always thinking in the short term and trading long term success in return for short term power and that's going to continue to bite them in the ass.
posted by vuron at 12:14 PM on June 25, 2013 [1 favorite]


The Supreme Court's War on the Great Society
As Ruth Bader Ginsburg argues in the latest of her brilliant dissents, the Court perversely uses the success of the Voting Rights Act as an argument against it. As she observes, "throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet." The extensive history of states creatively nullifying the 15th Amendment provided a strong justification for preclearance, and the effectiveness of the provision shows that Congress was justified. To the majority, this very effectiveness makes the legislation "inappropriate." To restate this argument is to refute it. Section 4 may not represent the states that Chief Justice Roberts believes should be covered by it and it would not represent my list either, but this isn't the issue. To be constitutional, legislation enforcing the 15th Amendment needn't be "ideal," it need only be "appropriate." Section 4 continues to pass this test easily, and there is no legitimate warrant for the Supreme Court to usurp the authority of Congress in this case.

In contrast to Justice Thomas's openly radical concurrence—he argues that Section 5 is unconstitutional—the Chief Justice's opinion is cloaked in apparent modesty. "Congress," the majority generously concedes, "may draft another formula based on current conditions." But, as Justice Scalia has previously written about Roberts's superficially "minimalist" opinions, "this faux judicial restraint is judicial obfuscation." Forcing Congress to start from scratch makes it enormously difficult for Congress to pass a modified Section 4; the basic institutional realities of the American institutional framework make inertia the most powerful force. Once a legislative coalition has been torn apart, it cannot be easily reassembled. The Supreme Court isn't acting as a mere neutral arbiter here; it's putting an anvil on the scale tilting towards Republican opponents of voting rights.

And, secondly, beware the bait-and-switch. Even in the unlikely event that Congress can pass a new version of Section 4, it will be enormously difficult to meet the arbitrary standards that a Supreme Court consistently hostile to federal intervention to protect basic rights has laid out. If a new Section 4 covers too few jurisdictions, it can be held to illegally discriminate against some states (as the Court did today.) If Congress creates a national preclearance requirement, however, it is virtually certain that the Republican-appointed majority of the Court would hold that this remedy was not "congruent and proportional," as it held when Congress tried to protect victims of gender-based violence under its authority to enforce the 14th Amendment. It is nearly impossible to satisfy the demands of a Court that takes equality between the states much more seriously than the equal rights of American citizens.

Roberts's seemingly modest opinion, therefore, is anything but. The odds that a new Section 4 can pass both houses of Congress and be the Goldilocks statute that will cover neither too many nor too few states to satisfy the Roberts Court's inscrutable but consistently anti-Congress whims are roughly equivalent to the odds that Nancy Pelosi will be the Republican candidate for president in 2016
posted by zombieflanders at 12:14 PM on June 25, 2013 [11 favorites]


The idea that Congress has to decide what rules to apply now because the rules decided upon in 1965 must be out of date by now seems farcical on its face. Congress last decided what rules to apply in 2006, not 1965.
posted by Flunkie at 12:15 PM on June 25, 2013 [1 favorite]


Is this type of argument now case law that can be referred to when arguing other protections beyond things like voting rights?


Only by analogy. This won't have precedential value in other contexts, but stare decisis and precedent don't matter so much in the Supreme Court, to be honest.
posted by MoonOrb at 12:15 PM on June 25, 2013


If you have a problem that needs addressing, and you devise a solution that addresses said problem, and after you implement the solution the problem goes down or away, wouldn't a reasonable person at least consider the possibility that the solution was effective? (And then continue by considering what might happen if the solution was removed? I know that's asking too much, though.)
posted by Benny Andajetz at 12:16 PM on June 25, 2013 [4 favorites]


Congress last decided what rules to apply in 2006, not 1965.

That "decision" was "just go with the 1965 ones because otherwise every member of congress will argue their state should now be excluded." Not that impressive.
posted by smackfu at 12:17 PM on June 25, 2013 [1 favorite]


I think the logic is mostly specious and feel that the decision is going to unleash a whole raft of horrible outcomes, but the ongoing isolation of specific states for special scrutiny (though entirely justified) smacks of a violation of the Equal Protection clause -- preclearing all or preclearing none is a reasonable rule IMO.
posted by chimaera at 12:17 PM on June 25, 2013


Supreme Court gives big boost to `war on voting’
“Voters have lost one of their most potent tools to fight back against discriminatory voting laws and efforts to suppress votes,” Weiser says. “This was one of the primary bulwarks against discriminatory voting laws. It was by far our most effective tool to stop voting discrimination.”

The Brennan Center believes that the striking down of Section 5 will lead states to revisit voting restrictions that have been blocked, and will increase the odds that current pending restrictions will ultimately pass. The Brennan Center recently issued a report detailing a surprisingly large number of initiatives that could be revived or will more likely become law in states previously impacted by Section 5.
posted by zombieflanders at 12:17 PM on June 25, 2013 [2 favorites]


.


For, you know, voting.
posted by Amplify at 12:20 PM on June 25, 2013 [5 favorites]


Those are five assholes on the bench right there. Good job, five assholes!
posted by angrycat at 12:21 PM on June 25, 2013 [12 favorites]


In the long run, you end up paying very, very dearly for the lesson you attempted to teach - and they don't learn any lessons (except maybe "turn more to the middle because X people won't vote for us anyways")."

Or, to put a finer point on it: Fuck you, Nader voters.


Nah, it's the Gore campaign's fault they lost. More Democratic voters voted for Bush than Nader in Florida. Obama had no trouble with 3rd party voters because he did a good job persuading people to vote for him. The Democratic party is not entitled to votes from people that don't support them.
posted by Drinky Die at 12:21 PM on June 25, 2013 [4 favorites]


Also, it's absolutely fucking appalling that the author of the decision is John Roberts, who was in charge of trying to destroy the VRA when he served in the Reagan administration. Kagan had the decency to recuse herself from Fisher. It's clear that in blatant conflicts of interest, the Justices on the left have far more ethics and morals than those on the right.
posted by zombieflanders at 12:21 PM on June 25, 2013 [35 favorites]


Chimaera, doesn't the Equal protection clause refer to state action against individuals and not federal action against states?
posted by vuron at 12:21 PM on June 25, 2013


MetaFilter: Good job, five assholes!
posted by one more dead town's last parade at 12:21 PM on June 25, 2013 [5 favorites]


Congress last decided what rules to apply in 2006, not 1965.
That "decision" was "just go with the 1965 ones because otherwise every member of congress will argue their state should now be excluded." Not that impressive.
Who said anything about "impressive"? They decided that 1965 was appropriate. Now the Court says no, you have to decide what's appropriate.
posted by Flunkie at 12:22 PM on June 25, 2013 [1 favorite]


The same trends that turned California into a total loss for Republicans are working their magic on Texas. In thirty years, a Republicans substantively like the one today won't have a hope in hell of winning statewide races in Texas, no matter how much they fight the tide with voter suppression and whatnot.

People said this after Gray Davis won the race in 1998. California most recently elected a Republican governor in 2006. Let's not claim that trends with few data points are uniform.
posted by psoas at 12:22 PM on June 25, 2013 [1 favorite]


angrycat: " Good job, five assholes!"

These are terrible hamburgers.
posted by boo_radley at 12:22 PM on June 25, 2013 [34 favorites]


Chimaera, doesn't the Equal protection clause refer to state action against individuals and not federal action against states?

My understanding of all constitutional rights outlined in the main body and amendments is that the primary purpose is to restrict the actions of the federal government (and lower governmental agencies), not to specifically bestow rights -- I'm happy to be corrected on this, however. If the government is required to provide Equal Protection to all who come before it under the law, that would apply to states/districts/etc as well as individuals.
posted by chimaera at 12:23 PM on June 25, 2013


Holy Zarquon's Singing Fish: "I'm sure with PRISM and everything it'll be easy for the president get out the youth vote to vote democratic in 2014.

"Vote Democrat: Because you don't want us to send your browser history to your parents."
"

My family knows I am a perv. What else you got?
posted by Samizdata at 12:24 PM on June 25, 2013


@jtlevy: "In oral arguments re gay marriage, Scalia made a big deal out of the silliness of saying something became unconstitutional over time. Apparently this view does not extend to the Voting Rights Act."

@froomkin: "A court ruled by originalists strikes down a duly-passed law they don't like on the argument that times have changed."
posted by zombieflanders at 12:24 PM on June 25, 2013 [14 favorites]


Scalia being a total hypocrite is hardly news. Of course he'll probably suggest that the VRA should've never been constitutional and that he's just fixing a past wrong because reasons
posted by vuron at 12:26 PM on June 25, 2013


Yet more fallout cascading from Bush v Gore. The Supremes decided what kind of President they wanted picking their new colleagues on the bench and we are seeing the effect. That one decision has changed the course of history in a multitude of ways and will for decades.
posted by JackFlash at 12:27 PM on June 25, 2013 [5 favorites]


The Prospect is on fire today:

America's Fatigue in the Fight Against Racism
It is difficult to overstate the extent to which racism is tied to the history of this country. Without slavery, the Declaration of Independence is hard to imagine. Without fealty to Jim Crow, there is no New Deal. At various points however—the Civil War, Reconstruction, and the Civil Rights Movement—we have tried to loosen our bonds to racism and rectify the evil of the past. Each time, we make genuine progress. The 1890s were a time savage violence and disadvantage for African Americans, but they weren’t enslaved. Blacks were still far behind the mainstream in the 1970s, but they had gained new opportunities for advancement. But to fully disentangle racism from national life requires a tremendous amount of energy. After all, you don’t just need to provide formal equality or encourage tolerance, you need to reform the whole system—the full range of institutions that privilege whites at the expense of blacks and other minorities.

Americans have never been able to commit to that project. Reconstruction was a start, and it ended in failure after a decade of Northern frustration and Southern hostility. The Great Society and the civil rights laws of the 1960s constitute the beginnings of a second attempt, and in the case of the Voting Rights Act, it was a significant success.

But that success hasn’t fixed the problem, and many Americans have grown tired of trying to remedy the effects of racism. By striking down Section 4 of the VRA and ignoring the clear words of the Fifteenth Amendment, Roberts is elevating white America’s racial fatigue into constitutional law.
posted by zombieflanders at 12:28 PM on June 25, 2013 [4 favorites]


Drinky Die: " Nah, it's the Gore campaign's fault they lost. More Democratic voters voted for Bush than Nader in Florida. Obama had no trouble with 3rd party voters because he did a good job persuading people to vote for him. The Democratic party is not entitled to votes from people that don't support them."

This is a bit of a tangent that I'm happy to take to MeMail if it becomes too much of a derail, but the data say otherwise:
Third, and most directly, Nader won 97,488 votes in Florida. Appearing on a talk show after the election, Nader cited polls that showed that, had he not run, only 38 percent of his voters would have backed Gore versus 25 percent for Bush. Strangely, Nader held up these numbers as a defense against the spoiler charge. Yet the very data cited by Nader, if applied to Florida, shows that he took a net 12,000 votes from Gore — more than enough to hand the state, and the electoral college, to Bush.
posted by tonycpsu at 12:28 PM on June 25, 2013 [4 favorites]


People said this after Gray Davis won the race in 1998. California most recently elected a Republican governor in 2006.

Schwarzenegger was hardly a Republican of the Tea Party mold. I would actually argue that he governed California rather moderately, much to the consternation of the increasingly reactionary and increasingly marginalized CA Republicans in the Assembly/State Senate representing increasingly red districts.
posted by chimaera at 12:28 PM on June 25, 2013


Kagan had the decency to recuse herself from Fisher. It's clear that in blatant conflicts of interest, the Justices on the left have far more ethics and morals than those on the right.

Kagan was Solicitor General, which means she pretty much has to recuse herself from a ton of stuff where she was still in the government advising actions on the the exact same cases when they were earlier in the appeal process. And it's funny how quickly it's forgotten that a lot of people were angry at her for not recusing herself in the Obamacare suits.
posted by smackfu at 12:31 PM on June 25, 2013 [1 favorite]


Or, to put a finer point on it: Fuck you, Nader voters.

God if only there would have been a way to stop them from voting against the way you wanted. Wait what was this thread about again?
posted by XQUZYPHYR at 12:32 PM on June 25, 2013 [21 favorites]


And before several more hours pass, three more states gleefully line up make their racism legal.

Three guesses as to what area of the country they are from, what side they chose in the war over slavery, and what political party controls most or all of their government bodies.
posted by zombieflanders at 12:33 PM on June 25, 2013 [11 favorites]


Texas and South Carolina. Two states I have family in, and one side of them happens to be not white.

This will end well.
posted by Kitteh at 12:34 PM on June 25, 2013


I don't think anyone was suggesting that nader voters get disenfranchised but merely suggesting that rhetoric like there being no discernable difference between Republicans and Democrats is clearly incorrect on several key issues.

This ruling among many others under the Roberts court merely highlights how one election can have lasting impact for a generation or more.
posted by vuron at 12:35 PM on June 25, 2013


For the better part of this afternoon, I have been watching Texas State Senator Wendy Davis' 13 hour filibuster against Texas Republicans trying to pass through a special session a piece of legislation that would de facto ban abortion in the state.

I've been moved to tears from the testimony she has been reading. Now to see that Texas, the state in which I live right now, is already moving to capitalize on this most recent SCOTUS decision... I honestly can't take it anymore. Not to mention Vance v. Ball State Univ. as well. I just don't know what to do or what's going on in this state and country.
posted by SollosQ at 12:37 PM on June 25, 2013 [4 favorites]


Nader is a derail. Please drop it.
posted by benito.strauss at 12:38 PM on June 25, 2013 [13 favorites]


Yet the very data cited by Nader, if applied to Florida, shows that he took a net 12,000 votes from Gore

Those votes did not belong to Gore, they were not taken from him. They belonged to the voters and they made the decision about who they wanted to be President. Similarly, 13% of the registered Democrats in Florida decided to vote for Bush instead of their own party's candidate. It's hard to make the case you should blame people outside the party rather than the party itself. Bush voters are primarily responsible for this, not Nader voters.
posted by Drinky Die at 12:38 PM on June 25, 2013 [7 favorites]


Drinky Die: "Those votes did not belong to Gore, they were not taken from him."

Apparently you didn't comprehend that this was a Nader poll based on how those voters would have voted if Nader weren't in the race, so yeah, they kind of were.
posted by tonycpsu at 12:39 PM on June 25, 2013 [1 favorite]


dropping it -- MeMail lines are open
posted by tonycpsu at 12:40 PM on June 25, 2013 [2 favorites]


> Or, to put a finer point on it: Fuck you, Nader voters.

MUST we always have this derail - and must it always be couched in potty language?

That Nader voters swung the 2000 elections is NOT provable. You have to assume that almost everyone who voted for Nader would have voted for Gore if Nader were not there. Why is it not more likely to assume that they would have voted for another third party - or simply no one at all, like most people do most of the time?

Voting takes some effort - more every election as we are learning from this post. People generally vote because they are enthusiastic over one candidate, or particularly hate another one. Those people who bought into the argument "There's no difference between R and D" don't seem particularly likely to have gotten off their asses to vote for Gore if Nader hadn't been there.

By saying, "You must ALWAYS vote R or D - or FUCK YOU!" you're saying, "This is it. Permanent surveillance, permanent warfare, both war- and Wall Street criminals being completely above the law, relentless persecution of undesired leaks - get used to it, because FUCK YOU if you vote against any of these."
posted by lupus_yonderboy at 12:41 PM on June 25, 2013 [11 favorites]


Three guesses as to what area of the country they are from, what side they chose in the war over slavery, and what political party controls most or all of their government bodies.

Interestingly, Texas wasn't even included in the original VRA of 1965. It was added a few years later, when the definitions were expanded to better cover discrimination against non-English speaking voters. That also affected parts of California and New York.
posted by smackfu at 12:41 PM on June 25, 2013 [1 favorite]


"Guys, let's totally keep saying it's Nader's fault that Republicans won the election."
-President John Kerry

"I agree, it's a failproof strategy."
-Speaker Nancy Pelosi
posted by XQUZYPHYR at 12:41 PM on June 25, 2013 [4 favorites]


[Would be great not to re-legislate Nadar for the nth time in here, folks. Search function works, feel free to go relive previous threads at your leisure.]
posted by cortex (staff) at 12:42 PM on June 25, 2013 [7 favorites]


For those looking for any optimism they can find:

The Supreme Court's Voting Rights Decision Is a Poison Chalice for the GOP
On its face, this looks like a big victory for Republicans. Is it really? I suspect it will turn out to be a poisoned chalice. Many of the GOP’s current problems stem from the fact that it is overly beholden to its white, Southern base at a time when the country is rapidly becoming more racially diverse. In order to expand its base of power beyond the House of Representatives, the GOP needs to expand its appeal to minority voters. As the ongoing battle over immigration reform demonstrates, that process is going poorly and looks like it will be very difficult.

The Supreme Court’s decision to strike down a central provision of the Voting Rights Act will make it easier for Republicans to hold and expand their power in those mainly Southern states. That will, in turn, make it easier for them to hold the House. It will also intensify the Southern captivity of the GOP, thereby making it harder for Republicans to broaden their appeal and win back the White House.
posted by zombieflanders at 12:43 PM on June 25, 2013 [3 favorites]


Am I the only one who finds the Supreme Court as it is just fundamentally flawed as a pillar of the whole checks-and-balances thing? Even if they're voting "my way", I'm uncomfortable with it. Not the idea of it! It's a great and necessary idea in the system of government we have, but the implementation is shit. Just the whole thing where once in a great while, when the stars are in perfect alignment, someone is able to be appointed and the goal is always to tilt the political balance of the court towards whoever's got the most clout at that moment in time. When you're a kid you're always taught that the idea is that lifetime appointment is an effective shield against partisanship because they're not up for reelection, but that's crap and everybody knows it's crap. I do think it's very important to have the upper rungs of the judicial branch free from the sway of direct elections and the manipulations and fickle faddish knee-jerk nature of that stuff, but there has to be a better implementation of the selection process, or the makeup of the court. I don't have any solutions to propose, it just seems like a totally flawed system when the outcome is so often party-line splits. And it's absurd to me that the law of the land can hinge on one person out of nine.
posted by jason_steakums at 12:47 PM on June 25, 2013 [11 favorites]


And before several more hours pass, three more states gleefully line up make their racism legal.

What's interesting about those particular three is how they're all at different spots on the spectrum. Virginia is now a blue state, South Carolina will be red for the rest of our lives and Texas is likely going blue by 2020 (if not 2016) due to the increasing Latino population. What unites them all, I guess, is the local aspect of politics. This is going to have MUCH more of an impact on keeping the insane Tea Party majorities on a local level, which in turn will affect labor, reproductive rights and LGBT issues.

Texas is the one to watch though. Because make no mistake- the next phase of this is going to be tampering with the Electoral Vote. They already teased it in 2012; as soon as Texas going Dem becomes a legitimate threat there is no way Republicans will not try to change the law to make the EV count be "fairer."
posted by XQUZYPHYR at 12:49 PM on June 25, 2013 [3 favorites]


Also, FWIW, preclearance should have been extended to every district in the country. There are numerous instances of voter laws proven to be discriminatory just in the last couple of years in non-Section 5 states.


As much as I wish this would happen, this would almost certainly get slapped down in the courts. The opinion in Shelby County knocks down the pre-clearance formula on both "fundamental principle of equal sovereignty" and 10th Amendment grounds. Extending coverage nationwide might solve the first problem but it won't solve the Court's objection to the federal intrusion into state election administration.

They cite South Carolina v. Katzenbach where even when upholding a previous incarnation of the formula, the Court conceded that it "may have been an uncommon exercise of congressional power" that was justified by "exceptional conditions can justify legislative measures not otherwise appropriate." The Roberts Court might be convinced to uphold a formula based on current conditions that cover counties and states with such exceptional conditions, but would likely balk at national coverage.

I'm no lawyer, but what I do know more about is politics, and I am extremely pessimistic that a new Section 4 formula will be passed out of the current Congress. House Republicans, by and large, represent whiter districts than they did in 2006 when the VRA came up last. Unlike a Presidential candidate, most House Republicans will suffer little backlash from fighting VRA. With minorities so effectively packed in by choice (living in cities) and by force (gerrymandering), I don't see where the pressure for Congressman McWhiteGuy would come from. I would not hold my breath that a new formula will even be passed unless there is a change in party control, much less one that passes judicial review.

***

The high-profile effects of this on redistricting and Congressional seats pale in comparison to its effect on state and local election, where the vast majority of racially discriminatory electoral practice occurs in the Southern United States. Already we see Voter ID laws held up by pre-clearance immediately going into effect. Instead of preventing harm through pre-clearance, a process that the Obama DOJ was barely using to begin with, voters will have to sue in court after the harm has occurred. Where will they find the resources?

The only real solution is a constitutional amendment establishing a nationalized election commission. A man can dream.

Overall, a dark, dark day for voting rights in this nation.
posted by Hollywood Upstairs Medical College at 12:50 PM on June 25, 2013 [4 favorites]


against partisanship because they're not up for reelection, but that's crap and everybody knows it's crap

Lifetime appointment is not a check against partisanship it's a check against influence. Judges aren't pressured to find in certain ways in order to keep their jobs.
posted by Justinian at 12:50 PM on June 25, 2013 [4 favorites]


I agree with that point zombieflanders, this is not a great end result for Republicans who absolutely need to break out of their tea party imposed dogma and begin making inroads into emerging populations that might be receptive to the Republican party on a variety of economic and social policy levels but who are going to continue to feel increasingly marginalized by a Republican core that is increasingly hostile to minorities, to youth, to the poor and who want to see a conservative party that is compassionate to people outside of a narrow band of "acceptable". This helps in the short term especially because they can basically make legislative maps even more fucked up than the current ones and impose all sorts of nasty voting restrictions but they can't conceal that they are embarking on a policy attacking the very voters they need to reach out to.

People can be motivated by fear to vote for a party but it's hard to get people to vote for you when you are explicitly attacking them directly.
posted by vuron at 12:50 PM on June 25, 2013


jason_steakums: " I don't have any solutions to propose"

I rather like the idea of fixed eighteen year terms. Justices get very long (though not lifetime) terms, and each Presidential term has an equal number of opportunities (two) to put forth nominees. This doesn't solve all of the problems, but it solves many of them.
posted by tonycpsu at 12:51 PM on June 25, 2013 [5 favorites]


Yeah, fixed terms with no possibility of re-appointment is the way to go if you need an alternative to holding the position for life. Then you just need to somehow stop the justices from starting with their policy preferences and reasoning backward to legal justification 99% of the time.
posted by Holy Zarquon's Singing Fish at 12:53 PM on June 25, 2013 [5 favorites]


So apologies if this is a dumb question, but reading this on Wikipedia (yes, I know, but I have to start somewhere)

Similar to the bail out procedure, under Section 3 of the VRA there is a "bail in" or 'pocket trigger' process by which uncovered jurisdictions found to be a 'pocket' of discrimination may be required to seek preclearance under 42 USC 1973a(c) The statutory language is similar to Section 5 oversight but the period of coverage is based on a ruling or consent decree issued by a federal judge

So if a federal judge said "Hey, [State] is a pocket of discrimination, could they still have to seek preclearance?" Or does the decision pretty much invalidate this route too?
posted by MCMikeNamara at 12:55 PM on June 25, 2013


nah 'cause congress has to come up with a new formula for Sec 4, right?
posted by angrycat at 12:57 PM on June 25, 2013


Yeah, fixed terms with no possibility of re-appointment is the way to go if you need an alternative to holding the position for life.

Of course then they spend their fixed terms pandering to the people they want to hire them afterwards. There's no winning.
posted by Blue Jello Elf at 12:58 PM on June 25, 2013 [1 favorite]


Am I the only one who finds the Supreme Court as it is just fundamentally flawed as a pillar of the whole checks-and-balances thing?

You may just as well say that about the government in its entirety. It's actually frustrating to have it seen as a radical or partisan notion to state the obvious, which is that our government is in near-total dysfunction at the moment. Congress is not currently a "check" on the President; it has openly and radically declared that it refuses to allow legislation pass. That's not "balancing" anything; it's literally not working.
posted by XQUZYPHYR at 12:58 PM on June 25, 2013 [19 favorites]


So if a federal judge said "Hey, [State] is a pocket of discrimination, could they still have to seek preclearance?" Or does the decision pretty much invalidate this route too?


§3 was not part of the suit. That route is still alive, though quite difficult to get through.
posted by Hollywood Upstairs Medical College at 1:00 PM on June 25, 2013 [1 favorite]


HUMC: In what I can only assume is design rather than stupidity, that means SCOTUS has essentially codified a near-total meltdown in Congressional action, no?

Unless one party is reduced to 40 votes in the Senate and 217 in the House, then very little can get done. This decision allows for state and local governments to be overrun by elections conducted in a discriminatory fashion, leading to Census redistrcting by those elected via that path, which means that, at the very least, whoever controls that redistricting controls the House and possibly the Senate and/or White House for the foreseeable future. That leaves either wide expansions in Executive powers to get anything done or the US further devolving into a first-world nation with third-world policies.
posted by zombieflanders at 1:01 PM on June 25, 2013 [1 favorite]


It's very Catch-22. The decision rests on the fact that Congress didn't revise the factors that trigger Section 5 oversight when it reauthorized the law. It didn't revise those factors because the factional nature of Congress makes it practically impossible to pass revisions to the triggering formula. Without Section 5 oversight, state-level incumbents can prevent minorities from gaining voting power as their numbers grow, keeping Congress factional. Go back to start, substituting other laws for the VRA as appropriate.
posted by Holy Zarquon's Singing Fish at 1:07 PM on June 25, 2013 [2 favorites]


Yeah, fixed terms with no possibility of re-appointment is the way to go if you need an alternative to holding the position for life.
Of course then they spend their fixed terms pandering to the people they want to hire them afterwards. There's no winning.
Fixed 18 year term followed by forced exile to Snake Plissken's New York.
posted by Flunkie at 1:08 PM on June 25, 2013 [6 favorites]


Go back to start, substituting other laws for the VRA as appropriate.

Right, but unless Roberts et al are either stupid or ignorant, they've basically ensured that the VRA can never get passed again. To be brutally honest, they've said that, as far as voting goes--and who knows what rights are next--states are free to discriminate via Jim Crow as if it's 1959 again in all but name.
posted by zombieflanders at 1:13 PM on June 25, 2013 [1 favorite]


Or, to put a finer point on it: Fuck you, Nader voters.

I finally understand 1968 and the boomers.
posted by absalom at 1:13 PM on June 25, 2013 [3 favorites]


As @aurabogado tweeted today, "SCOTUS rules it's a great day to be white."
posted by Kitteh at 1:19 PM on June 25, 2013


Lifetime appointment is not a check against partisanship it's a check against influence. Judges aren't pressured to find in certain ways in order to keep their jobs.

Argh, yeah, good catch, I worded that weird.
posted by jason_steakums at 1:21 PM on June 25, 2013


Right, but unless Roberts et al are either stupid or ignorant, they've basically ensured that the VRA can never get passed again.

Well, they've ensured that whether they're stupid or not. The even-larger problem is that when state officials abuse redistricting, ID law, etc., to keep winning elections, they'll perpetuate the culture we have in the House and Senate already, where the minority sees itself as On A Mission From God (literally or figuratively, take your pick) and refuses to let anything through if they can possibly stop it, because they don't face consequences for being assfaces.
posted by Holy Zarquon's Singing Fish at 1:22 PM on June 25, 2013 [2 favorites]


To be brutally honest, they've said that, as far as voting goes--and who knows what rights are next--states are free to discriminate via Jim Crow as if it's 1959 again in all but name.

Unless someone appeals them to the SCOTUS and they are found unconstitutional. Just like every other part of the law that doesn't require pre-clearances.
posted by smackfu at 1:24 PM on June 25, 2013


Unless someone appeals them to the SCOTUS and they are found unconstitutional. Just like every other part of the law that doesn't require pre-clearances.

Which this Court seems, shall we say, disinclined to do, and given that the next Justice will have to be approved by the very same current and now-codified dysfunctional Congress, may very well be perpetuated. And that's not even taking into account voter suppression (which, remember, can only be done after the fact and on a case-by-case basis) basically voting in an administration and Congress blatantly unwilling to prosecute and voting for Justices that are even less inclined to find voter suppression unconstitutional.

As I said, first-world country with third-world policies.
posted by zombieflanders at 1:30 PM on June 25, 2013 [4 favorites]


WTF SCOTUS?
posted by BlueHorse at 1:38 PM on June 25, 2013


You may just as well say that about the government in its entirety. It's actually frustrating to have it seen as a radical or partisan notion to state the obvious, which is that our government is in near-total dysfunction at the moment. Congress is not currently a "check" on the President; it has openly and radically declared that it refuses to allow legislation pass. That's not "balancing" anything; it's literally not working.

I'm really starting to come around to the thought that my number 1 voting priorities need to be candidates pushing campaign finance reform (public funds only, please), the rooting out of "gifting", a crackdown on post-term employment promises and nonpartisan redistricting. I mean, obviously I'm not going to vote for an otherwise odious candidate just because they believe in those things, but it's gotta be a top concern more than I've made it in the past. The hull is leaking and bandaids won't stop the water coming in.

Of course then they spend their fixed terms pandering to the people they want to hire them afterwards. There's no winning.

It would certainly help if the Justices had anything other than their own discretion to get them recused from cases.
posted by jason_steakums at 1:40 PM on June 25, 2013 [2 favorites]


XQUZYPHYR Virginia is now a blue state

How so? The state house is solidly controlled by republicans and there is no way the republican party to lose their majority in the upcoming election. The democratic gubernatorial candidate couldn't even win the democratic primary last election cycle and he's got no credentials to run on to beat the Cooch other than being a rich friend of Bill Clinton and his campaign slogan of "tea party sux."

Virginia is not a blue state, it's a bellwether state.
posted by peeedro at 1:44 PM on June 25, 2013 [1 favorite]


To be brutally honest, they've said that, as far as voting goes--and who knows what rights are next--states are free to discriminate via Jim Crow as if it's 1959 again in all but name.


Let's not get hyperbolic. Section 4 was a formula that led to Section 5 pre-clearance, which was an enforcement mechanism. The meat of Section 2, which broadly prohibits the discriminatory conduct we seek to avoid still stands. Jurisdictions had to pre-clear with DOJ that whatever they were doing met Section 2 standards.

The real issue is that it is now much more difficult to stop a discriminatory polling place change or voter ID law in advance of it coming into effect. It now requires expensive lawsuits by aggrieved voters who are less likely to have adequate resources instead of a slapdown from the federal government. It will lead to more discriminatory laws that will be harder to challenge, but we're not going to go quite back to 1959.

Don't forget that many of the onerous voter ID laws in the runup to 2012 were enacted in states that weren't covered by Section 5, leaving Section 2 suits the only remedy anyway. The vast majority of Florida was never covered under Section 5, and we see how well their elections turned out. The battle is much, much larger than pre-clearance formulas.

The situation sucked before, sucks a little more now, but we are not quite at 1959.
posted by Hollywood Upstairs Medical College at 1:48 PM on June 25, 2013 [5 favorites]


It's really disappointing to see so many people misreading this. No, SCOTUS did not gut the VRA. It essentially said that arranging pre-clearance largely on the basis of fallout from a civil war a century ago is unconstitutional, and a standard needs to be fixed that applies to every state and can adapt to changes.

Yes, in practice, Congress is unlikely to pass new pre-clearance requirements in a timely manner. But blaming SCOTUS for Congress' dysfunctionality is just fubar. They are obliged not to consider politics and to uphold the law.

I salute the fine and measured ruling. It has been too long coming.
posted by corb at 1:55 PM on June 25, 2013


It's really disappointing to see so many people misreading this.

Including every media outlet and SCOTUSblog? No, I don't think anyone is misreading.
posted by roomthreeseventeen at 1:57 PM on June 25, 2013 [11 favorites]


I think maybe one person is misreading.
posted by elizardbits at 1:58 PM on June 25, 2013 [34 favorites]


Including every media outlet and SCOTUSblog?

Not to mention that scathing dissent from Ginsburg. But she's just like a Supreme Court Justice, not like her opinion matters or anything.
posted by Phire at 2:04 PM on June 25, 2013 [5 favorites]


corb, i wanna try to converse with you but if you are worried about a pile-on, it's cool; i just wonder: how did the status quo of Section 4 harm your interests, however you see them?
posted by angrycat at 2:04 PM on June 25, 2013


It essentially said that arranging pre-clearance largely on the basis of fallout from a civil war a century ago is unconstitutional

It did? Where? Can you point everyone else in the right direction?
posted by MisantropicPainforest at 2:05 PM on June 25, 2013


The problem Corb is that states can pass restrictive laws just prior to elections and then there is no remedy to block those laws from happening prior to the law disenfranchising voters because the voters wouldn't be able to show harm until after the election happened.

Correcting a bad law after it has the impact of disenfranchising voters is decidedly bad because it still has the effect of disenfranchising voters and it's not like the past harm can be corrected, we don't allow do-overs for the most part.
posted by vuron at 2:06 PM on June 25, 2013 [2 favorites]


If Congress thought that formula was good enough (and they did, nearly unanimously) then that should remain the law, because as the Lemieux link in the FPP points out: To be constitutional, legislation enforcing the 15th Amendment needn't be "ideal," it need only be "appropriate."

Right, and it's not appropriate that states are held to regulations based on whether half of eligible voters were registered on November 1, 1972, because things in the state may have changed and the Act doesn't reflect that. Things in other states may have gone to hell and the Act doesn't reflect that.

Again, if they changed the law to say "ten years ago" instead of "November 1, 1972" we probably wouldn't be here.
posted by Jairus at 2:07 PM on June 25, 2013 [3 favorites]


It essentially said that arranging pre-clearance largely on the basis of fallout from a civil war a century ago is unconstitutional

it's like jim crow, the civil rights movements and the klan never happened
posted by pyramid termite at 2:08 PM on June 25, 2013 [7 favorites]


fallout from a civil war a century ago

Which fallout has lasted well into living memory, but bygones must apparently be made bygones.
posted by Rustic Etruscan at 2:08 PM on June 25, 2013 [4 favorites]


Oh, I knew the prime apologist was coming. Let's get to it:

It's really disappointing to see so many people misreading this. No, SCOTUS did not gut the VRA.

You are in disagreement with pretty much everybody but the people who claim voter fraud is widespread and that most voter laws are not racist, both of which have been proven to be, without a trace of doubt, blatant lies by multiple administrations, state and federal courts, and hundreds of law experts.

It essentially said that arranging pre-clearance largely on the basis of fallout from a civil war a century ago is unconstitutional, and a standard needs to be fixed that applies to every state and can adapt to changes.

Nope. Pre-clearance on the basis of not trying to pass racist voter laws in the last 10 years. And despite the current conservative hard-on for the War of Northern Aggression, there's plentiful evidence this did not just apply to the Old Confederacy. For instance, here's evidence that Maine, Connecticut, Massachusetts, and New Hampshire also had to deal with pre-clearance.

Yes, in practice, Congress is unlikely to pass new pre-clearance requirements in a timely manner. But blaming SCOTUS for Congress' dysfunctionality is just fubar. They are obliged not to consider politics and to uphold the law.

Congress reauthorized the VRA four times, most recently in 2006. Every single justice admitted that voter suppression still happens. The author of the decision spent the better part of eight years trying to destroy the VRA as best he could.

So tell me again how this wasn't political?

I salute the fine and measured ruling. It has been too long coming.

Of course. Just on wholly fabricated reasons.
posted by zombieflanders at 2:09 PM on June 25, 2013 [13 favorites]


so, corb, if you think that it's unfair that only some states should have to be under regulations, would you support a constitutional amendment to explicitly give every citizen the right to vote?
posted by pyramid termite at 2:12 PM on June 25, 2013


Pre-clearance on the basis of not trying to pass racist voter laws in the last 10 years.

Section 5 wasn't the section that was found unconstitutional.
posted by Jairus at 2:12 PM on June 25, 2013 [1 favorite]


Also, if you're still convinced that the War of Northern Aggression totally fixed everything and the South is Totes Not Racist, perhaps you should read Ginsburg's dissent, particularly this bit:
Recording devices worn by state legislators cooperating with the FBI’s investigation captured conversations between members of the state legislature and their political allies. The recorded conversation are shocking. Members of the state Senate deri­sively refer to African-Americans as 'Aborigines' and talk openly of their aim to quash a particular gambling-related referendum because the referendum, if placed on the ballot, might increase African-American voter turnout...These conversations occurred not in the 1870’s, or even in the 1960’s, they took place in 2010.
posted by zombieflanders at 2:13 PM on June 25, 2013 [26 favorites]


fallout from a civil war a century ago

Ah, yes, the great Civil War Of 1972.
posted by Holy Zarquon's Singing Fish at 2:14 PM on June 25, 2013 [1 favorite]


Section 5 wasn't the section that was found unconstitutional.

No, just the mechanisms for Section 5. In practical terms, there's very little difference.
posted by zombieflanders at 2:15 PM on June 25, 2013 [2 favorites]




Not to mention that scathing dissent from Ginsburg. But she's just like a Supreme Court Justice, not like her opinion matters or anything.

At this point she's a freakin' legal superhero as far as I'm concerned, holding back the forces of evil in this country.
posted by aught at 2:23 PM on June 25, 2013 [7 favorites]


Members of the state Senate deri­sively refer to African-Americans as 'Aborigines' and talk openly of their aim to quash a particular gambling-related referendum because the referendum, if placed on the ballot, might increase African-American voter turnout...These conversations occurred not in the 1870’s, or even in the 1960’s, they took place in 2010.

Ah, yes, that's my own profoundly horrible state senator, Scott Beason.
posted by ndfine at 2:23 PM on June 25, 2013 [1 favorite]


No, just the mechanisms for Section 5. In practical terms, there's very little difference.

In practical terms the mechanism is unconstitutional, and suggesting that SCOTUS instead found "pre-clearance on the basis of not trying to pass racist voter laws in the last 10 years" unconstitutional is intellectually dishonest. All anyone needed do to avoid this whole thing is change the fucking year on the act. But Congress can't do that and here you guys are.
posted by Jairus at 2:24 PM on June 25, 2013 [2 favorites]


All anyone needed do to avoid this whole thing is change the fucking year on the act.

Wait, what?
posted by roomthreeseventeen at 2:25 PM on June 25, 2013


Wait, what?

The Section 4 state coverage formula is based on the presence of tests or devices and levels of voter registration and participation as of November 1972.

Congress kept renewing the act but left the year the same. Now 1972 is distant history and it's unconstitutional for states to be held to coverage standards today based on what they were doing in 72.
posted by Jairus at 2:27 PM on June 25, 2013 [1 favorite]


That doesn't mean anything has changed since 1972.
posted by roomthreeseventeen at 2:28 PM on June 25, 2013


That doesn't mean anything has changed since 1972.

Which is exactly why Congress could have updated Section 4 to say "2010" and solved the whole fucking thing. SCOTUS made it clear in 2009 that Section 4 needed to be updated but Congress didn't do anything.
posted by Jairus at 2:29 PM on June 25, 2013 [1 favorite]


There’s surprisingly little discussion today of the fact that a jurisdiction can get out of under the pre-clearance standard by simply demonstrating over a ten year period that they’re no longer abusing/discriminating against minority voters in the jurisdiction

FYI, it seems pretty damn hard to do this at the state level. Info. In particular, this part is a killer: "Thus, if a county is seeking to "bailout", it must establish each criteria for every city, town, school district, or other entity within its boundaries." Very easy to put a whole state in, very hard to get it out.
posted by smackfu at 2:36 PM on June 25, 2013 [1 favorite]


Also, the bailout provisions which allow covered jurisdictions to stop being covered are also in Section 4. So yes, the formula does include a self-updating mechanism. It doesn't change the year of reference, but it explicitly does allow for jurisdictions that haven't had VRA violations in the last 10 years to avoid pre-clearance. The majority acknowledges that bailouts exist in the "facts of the case" section, but just kind of ignores them in the opinion itself.
posted by Holy Zarquon's Singing Fish at 2:39 PM on June 25, 2013 [4 favorites]


I think the SCOTUS made the right choice: you can't go around treating a handful of states differently. However, if this were another country the federal government would just pass a law that applied rules and conditions equally to all states, but that just isn't going to happen in the US, is it?
posted by furtive at 2:39 PM on June 25, 2013 [1 favorite]


(Also, as Ginsburg notes, the bailout criteria are stringent, but the federal government is not overly strict when applying them; no bailout petition has been rejected since 1984.)
posted by Holy Zarquon's Singing Fish at 2:40 PM on June 25, 2013


furtive, those states and jurisdictions were treated differently on a past history and continued policy of disenfranchising voters. There definitely is plenty of instances where the Justice Department or Judicial oversight has been used to insure continued compliance with non-compliant jurisdictions around things like school busing, etc.
posted by vuron at 2:48 PM on June 25, 2013




You know that Dave Chappelle skit about the blind KKK member?

That was a documentary about Clarence Thomas.
posted by sonic meat machine at 3:07 PM on June 25, 2013 [6 favorites]


In need of a constitutional rationale
I asked the Constitutional Accountability Center's David Gans to help me out. He told me:
"Your question highlights a fundamental flaw in Chief Justice Roberts' majority opinion in Shelby County v. Holder. The Court strikes down a core provision of the Voting Rights Act as unconstitutional without ever explaining what provision of the Constitution commands this result. Chief Justice Roberts' opinion for the conservative majority argued that the Voting Rights Act provision was inconsistent with the 'letter and spirit of the Constitution,' but he never really explained why.

"His majority opinion emphasized that the Voting Rights Act diminished the sovereignty of states, ignoring that Fifteenth Amendment expressly gives to Congress broad power to prevent all forms of racial discrimination in voting by the states. As Justice Ginsburg's powerful dissent demonstrates, the Court's opinion cannot be squared with the text, history, and meaning of the Fifteenth Amendment."
Judicial restraint is often a rather amorphous concept, which sometimes means different things to different people. But in this case we have a piece of civil-rights legislation that was approved by the people's representatives, and then re-approved with large majorities several times. It was signed into law by an elected president, and then reauthorized to great fanfare by subsequent presidents of both parties. It's been subjected to judicial scrutiny over the course of several decades, and a judicial precedent has been set: the Voting Rights Act is legal.

Or put another way, when federal law is endorsed by the House, the Senate, the president, and the public, and it's consistent with decades of Supreme Court precedent, a court majority probably ought to have a very good reason for tossing all of that aside.

But in Shelby, five conservative justices gutted the Voting Rights Act anyway, deeming it inconsistent with Constitution because, well, they said so. These jurists said the same law used to be perfectly constitutional, but somehow morphed into being unconstitutional without anyone noticing, and without violating anything specific in the Constitution itself.
posted by zombieflanders at 3:11 PM on June 25, 2013 [17 favorites]


furtive: "I think the SCOTUS made the right choice: you can't go around treating a handful of states differently."

Sure you can. Should Sandy relief be given to all states equally? Should prison time be imposed on murderers and non-murderers alike?

Think of the former requirements as parole. You did something bad, you're out of jail, but you have to check in with your parole officer before leaving the jurisdiction.
posted by notsnot at 3:19 PM on June 25, 2013 [3 favorites]


More from Gans here:
As Justice Ruth Bader Ginsburg demonstrated in a brilliant dissent, the Fifteenth Amendment had a "transformative effect," giving to Congress sweeping new powers to "shield the right to vote from racial discrimination." The Fifteenth Amendment, she explained, was one of three Civil War Amendments that "arm Congress with the power and authority to protect all persons within the Nation from violations of their rights by the States." Under the Fifteenth Amendment, Congress has the power to enact prophylactic laws, such as the Voting Rights Act, to protect the right to vote against state-sponsored racial discrimination. Justice Ginsburg gave a command performance, showing how the majority's reasoning cannot be squared with the Constitution's text, history, and meaning. Chief Justice Roberts had no real answer.

Conservatives like to make fun of decisions that abandon the Constitution in favor of penumbras and emanations, but that is all Chief Justice Roberts offered in today's ruling. He argued that the Voting Rights Act is inconsistent with the "letter and spirit of the Constitution," but his opinion is all spirit.

He placed heavy reliance on principles of state sovereignty, forgetting that the American people added the Fifteenth Amendment to make sure that Congress could act to prevent racial discrimination in voting by the states and ensure that the right to vote was a reality for all Americans regardless of race. At its most fundamental level, Shelby County is an abandonment of the Constitution's protection of the right to vote, one of our most cherished rights.
posted by zombieflanders at 3:20 PM on June 25, 2013 [9 favorites]


I look forward to the term "activist judges" returning. Sadly, it probably won't happen until the next Democratic court majority.... which I probably won't live to see.
posted by absalom at 3:24 PM on June 25, 2013


"His majority opinion emphasized that the Voting Rights Act diminished the sovereignty of states, ignoring that Fifteenth Amendment expressly gives to Congress broad power to prevent all forms of racial discrimination in voting by the states. As Justice Ginsburg's powerful dissent demonstrates, the Court's opinion cannot be squared with the text, history, and meaning of the Fifteenth Amendment."

Yeah, if you are an "originalist" it's hard to argue the 15th was ratified in 1870 by people who cared particularly deeply about the state sovereignty of the states they had just invaded and militarily occupied.
posted by Drinky Die at 3:24 PM on June 25, 2013 [1 favorite]


Hey everybody don't worry! Harry Reid is going to fix it!
posted by Big_B at 3:26 PM on June 25, 2013


Yeah, thanks for that zombieflanders. That's been bugging me all day; what other part of the Constitution did Section 4 violate? No other part, apparently.
posted by notyou at 3:29 PM on June 25, 2013


Really, if that's true (that Section 4 merely broke with the "spirit" of the Constitution; and that the formula itself was outdated), then it's hard to square what they decided with any kind of originalism. But it was probably as far as Kennedy was willing to go, and his was the only swing vote available, so that's what they went with.

Hacks.
posted by notyou at 3:33 PM on June 25, 2013


Also, one more "also, too." Look at it as Roberts' payback for selling out his pals on Obamacare last year.
posted by notyou at 3:34 PM on June 25, 2013 [1 favorite]


It's almost as if originalism is a bullshit con job.
posted by fleacircus at 3:34 PM on June 25, 2013 [17 favorites]



It's almost as if originalism is a bullshit con job.


Aww, say it isn't so, fleacircus.
posted by ambrosia at 3:36 PM on June 25, 2013


i was thinking that if anybody should be visited by the ghost of Christmas Past, it should be Clarence Thomas. Then he wakes up and looks at his wife Ginny in horror. Heh.
posted by angrycat at 3:39 PM on June 25, 2013 [1 favorite]


What's weird for me is that I agree with this decision in principle, but not in practice. We should have a regime in place that regularly assesses patterns of voter discrimination and identifies problem areas that could most benefit from preclearance. As immigration and diversity increases in certain areas, so too might discriminatory policies, and so should policing of those policies. To up the Pollyanna quotient, such a regime might serve name and shame offending regions, or provide an incentive for local governments to take preemptive action when it looks like they might be added to the act.

But that's not what this decision does. While it asks for refined criteria, what it does, effectively and immediately, is ban the practice of preclearance, under the assumption that further notice will never come. Roberts effectively gave lip service to the idea of refreshing the bathwater, all while hoisting the baby by its ankle and flinging it out the window.

And as an aside, the act didn't just apply to the South. Up until the decision, the VRA also applied to a handful of counties in California, and to three of NYC's five boroughs. I can only wonder at the thoroughly innovative gerrymandering that's likely to come.
posted by evidenceofabsence at 4:01 PM on June 25, 2013 [3 favorites]


This is a democracy; the best way for a racial/ethnic minority to protect their rights is to out-reproduce the majority and supplant them.
posted by Renoroc at 4:51 PM on June 25, 2013


.
posted by vitabellosi at 5:04 PM on June 25, 2013


This is a democracy; the best way for a racial/ethnic minority to protect their rights is to out-reproduce the majority and supplant them.

That assumes their votes count the same as a member of the current racial/ethnic majority's. Which is kinda the point of the VRA.
posted by Holy Zarquon's Singing Fish at 5:18 PM on June 25, 2013 [4 favorites]


An awful, dread[Scott]ful decision.

Be nice to think this was their nadir, but the Robert's court is a limbo dance marathon.
posted by jamjam at 5:28 PM on June 25, 2013


we need to start hacking this shit. how about we fund free assault weapons for anyone denied the chance to vote or marry the partner of their choice?
posted by fallacy of the beard at 6:16 PM on June 25, 2013 [1 favorite]


I'm sure that will make things better.
posted by cj_ at 7:17 PM on June 25, 2013


first-world country with third-world policies

A surveillance state with a bloated military and crumbling infrastructure. America has been a second world country for some time.
posted by justsomebodythatyouusedtoknow at 7:47 PM on June 25, 2013 [3 favorites]


fleacircus: "It's almost as if originalism is a bullshit con job."

Or maybe they're so originalist that they're trying to rewind the clock on civil rights to 1789 or so.
posted by tonycpsu at 8:36 PM on June 25, 2013




corb: "But blaming SCOTUS for Congress' dysfunctionality is just fubar. "

Yes, Congress is so dysfunctional that they voted 98-0 and 330-35 to reauthorize the law as it stood until this morning at 10am. Thank heavens the dignified, mature, ideology-free justices of the high court are there to invalidate laws that enjoy virtually unanimous support because the formula being used to determine who's subject to pre-clearance isn't perfect.
posted by tonycpsu at 8:52 PM on June 25, 2013 [2 favorites]


Uh, 390-33.
posted by tonycpsu at 9:05 PM on June 25, 2013


[...] because the formula being used to determine who's subject to pre-clearance isn't perfect.

I am so, so glad the ACA decision came down the way it did, but seriously, to have this kind of justification today but "lol it's a tax now" is okay on the ACA penalties issue is just a little ridiculous.
posted by jason_steakums at 9:13 PM on June 25, 2013 [2 favorites]


God Bless America.

The part that absolutely killed me arguing about this at the dinner table is that the nightly news made no mention of the fact that there was a way off the list and all a covered entity had to do was not try and pull any racist bullshit for ten years. The talk radio listeners present agreed with the decision because obviously the VRA re-authorization in 2006 was rammed down the country's throat by the Democrats so that after the illegals get their amnesty and are on a path to citizenship they'll all vote Democrat. No, seriously. That's what got said. Efforts to point out that the re-authorization was nearly unanimous fell on deaf ears. Welcome to living in one of the reddest counties in a red state. I need a drink.
posted by ob1quixote at 1:30 AM on June 26, 2013 [2 favorites]


Compare and Contrast: Laws That Protect White Voting vs. Laws That Protect Black Voting
Even though the Fifteenth Amendment gives Congress the unconditional right to enact legislation designed to prevent states from abridging the right to vote "on account of race [or] color," the court ruled that, in fact, Congress is quite fettered after all. It cannot decide to simply renew a law that it thinks is working well. Instead, it's required by the court to update its formulas to satisfy the court's notions of what's logical and what isn't.

So here's your nickel summary. If a law is passed on a party-line vote, has no justification in the historical record, and is highly likely to harm black voting, that's OK as long as the legislature in question can whomp up some kind of neutral-sounding justification. Judicial restraint is the order of the day. But if a law is passed by unanimous vote, is based on a power given to Congress with no strings attached, and is likely to protect black voting, that's prohibited unless the Supreme Court can be persuaded that Congress's approach is one they approve of. Judicial restraint is out the window. Welcome to the 21st century.
posted by zombieflanders at 2:58 AM on June 26, 2013 [4 favorites]


Or, to put a finer point on it: Fuck you, Nader voters.
Don't blame me. I voted for Kodos.
posted by plinth at 5:31 AM on June 26, 2013 [1 favorite]


For the better part of this afternoon, I have been watching Texas State Senator Wendy Davis' 13 hour filibuster against Texas Republicans trying to pass through a special session a piece of legislation that would de facto ban abortion in the state.

I've been moved to tears from the testimony she has been reading. Now to see that Texas, the state in which I live right now, is already moving to capitalize on this most recent SCOTUS decision... I honestly can't take it anymore. Not to mention Vance v. Ball State Univ. as well. I just don't know what to do or what's going on in this state and country.


It may end up being a bittersweet victory:
Let's also pause to note that Texas Republicans also tried to redistrict Davis out of a job, but their plans were thwarted -- by the Voting Rights Act conservatives on the Supreme Court gutted last night.
Again, how was this decision and Texas' unconstitutional law not a political power grab?
posted by zombieflanders at 5:58 AM on June 26, 2013




Richard Posner (who in an alternate and just universe would have been appointed to SCOTUS, probably even Chief Justice, by President Gore or President Kerry), rips into Roberts:

The Voting Rights Act ruling is about the conservative imagination
It’s possible that the federal government would subject a state to unequal treatment so arbitrary and oppressive as to justify a ruling that Congress exceeded its constitutional authority. But Justice Ruth Bader Ginsburg’s very impressive opinion (in part because of its even tone), at a length (37 pages) that, remarkably, one would not like to see shortened—marshals convincing evidence that the reasons Congress has for treating some states differently for purposes of the Voting Rights Act are not arbitrary, though they are less needful than they were in 1965, when the law was first enacted.

That evidence—the record before Congress—should have been the end of this case. For apart from the spurious principle of equal sovereignty, all that the majority had on which to base its decision was tenderness for “states’ rights.” One doubts that this actually is a primary value for any of the justices. The same conservative majority that decided Shelby had rejected a more cogent argument for states’ rights when it held three years ago in McDonald v. City of Chicago that the Second Amendment—a provision of the Constitution designed to secure state autonomy—specifically, the right of states to maintain their own little armies, the militias, against federal abolition—creates rights against states’ limiting gun ownership. It seems that the court’s regard is not for states’ rights in some abstract sense but for particular policies that a majority of justices strongly favors.

The majority opinion in Shelby acknowledges that racial discrimination in voting continues, but notes that the situation has improved since 1965 and that the procedures in the current Voting Rights Act do not make a clean fit with the current forms and pattern of discrimination. Ordinarily however a federal statute is not invalidated on the ground that it’s dated. I hardly think the Supreme Court justices believe (as did Alexander Bickel) that “desuetude” is a constitutional doctrine. And the criticisms of the statute in the majority opinion are rather tepid. That’s why the court’s invocation of “equal sovereignty” is an indispensable prop of the decision. But, as I said, there is no doctrine of equal sovereignty. The opinion rests on air.
posted by zombieflanders at 6:33 AM on June 26, 2013 [5 favorites]


And more from Posner:

Shelby County fundamentally distorts the role of Congress
Congressional representatives from states covered by the pre-existing formula (mostly in the South) could vote to reauthorize the Voting Rights Act because doing so did not involve accusing their states of currently being more racist than others. It was simply a matter of history. Citizens in these states would not (and could not) dispute the historical fact of racial discrimination. Recognition of that history does not constitute present moral condemnation. And thus it was far better as a matter of pragmatic legislative reality to use the previous formula than attempt to figure out a new, more up-to-date set of rules.

And Congress knew—absolutely knew—that the old coverage formula continued to work. It may not have worked as a matter of logic: Out-of-date figures about low minority registration rates may not predict which jurisdictions will now rig voting districts to dilute minority influence. But Congress knew that the old formula was close enough.

Oh, how we miss Justice O’Connor. I’m not even saying that I know for certain how she would have voted in this case. But she was the last remaining member of the court with any experience in elected politics. Unlike many members of the current court, she understands in her marrow what Justice Oliver Wendell Holmes Jr. meant when he wrote:
“The life of the law has not been logic; it has been experience ... The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”
I’m not an expert on voting, and I can’t profess to know what the effect of today’s decision will be on discrimination in our election processes. But its effect on the law of the Constitution is profound. It represents a fundamental distortion of the roles of court and Congress. In the aftermath of the Civil War, the Reconstruction Congress knew that it could not trust the Supreme Court—the institution that gave us the Dred Scott decision—to protect voting rights. That power was given to Congress. Explicitly. In the words of the 15th Amendment:
Congress shall have the power to enforce this article by appropriate legislation.
It is worth noting that the opinion of the court in Shelby County never mentions the text of the 15th Amendment.
posted by zombieflanders at 6:37 AM on June 26, 2013 [3 favorites]


BTW: DOMA is unconstitutional, 5-4 with Kennedy joining the majority.
posted by zombieflanders at 7:03 AM on June 26, 2013 [3 favorites]


Per SCOTUSBlog:

DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.

"DOMA singles out a class of persons deemed by a State entitled ot recognition and protection to enhance their own liberty."

The opinion and its holding are confined to those lawful marriages.
posted by zombieflanders at 7:04 AM on June 26, 2013


Hooray!
posted by item at 7:09 AM on June 26, 2013


Holy crap, my brother in Malaysia just sent me an IM freaking out about the decision. This means he and his partner may finally be able to move to the U.S. They're thrilled, as am I.
posted by computech_apolloniajames at 7:12 AM on June 26, 2013 [1 favorite]


The not-bad-but-not-great news is that the DOMA decision essentially says they'll punt on Prop 8, i.e. narrowest possible ruling that doesn't make the majority look like complete homophobes.
posted by zombieflanders at 7:13 AM on June 26, 2013 [1 favorite]


In their dissents, Scalia, Alito, and Roberts claim that the SCOTUS has no jurisdiction here. (Of course.)
posted by Benny Andajetz at 7:15 AM on June 26, 2013


SCOTUSBlog: "Justice Scalia's bench statement is lengthy, so it will be a while before we hear about the next decision."

I'm sure the spittle will make it through the screen.
posted by zombieflanders at 7:18 AM on June 26, 2013


Prop 8 goes down, with the court ruling the applicants have no standing. Interesting split, with Roberts, Scalia, Ginsburg, Breyer, Kagan for the majority. Kennedy, Thomas, Alito, Sotomayor dissenting.
"We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here."
Definitely a mixed bag of rulings this week.
posted by tonycpsu at 7:39 AM on June 26, 2013


Oh, hey, new FPP.
posted by tonycpsu at 7:41 AM on June 26, 2013 [1 favorite]




Continuing to be mad about the 60s is just going to keep the Republican party locked in a backwards mindset forever

I'm fairly confident they don't need the 60s to pull off that trick.

Some elements of the Republican base is still mad about how the Civil War turned out, for crying out loud.
posted by Gelatin at 8:11 AM on June 26, 2013 [2 favorites]


War of Northern Aggression and Economic Terrorism, please.
posted by zombieflanders at 8:15 AM on June 26, 2013 [1 favorite]


Continuing to be mad about the 60s is just going to keep the Republican party locked in a backwards mindset forever.

I'm not even sure if that's referring to the 1960s or the 1860s.
posted by benito.strauss at 9:03 AM on June 26, 2013 [2 favorites]


2060's?
posted by notyou at 9:51 AM on June 26, 2013


The Supreme Court’s Constitutional Hypocrisy
In his dissent in the Defense of Marriage Act case today, Justice Scalia wrote: “We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.”

Justice Roberts wrote in his concurrence: “I agree with Justice Scalia that this Court lacks jurisdiction to review the decisions of the courts below… I also agree with Justice Scalia that Congress acted constitutionally in passing the Defense of Marriage Act.”

Yet that reasoning didn’t stop Justices Roberts and Scalia from striking down the centerpiece of the Voting Rights Act yesterday, a hugely important civil rights law that has been passed by Congress five times with overwhelming bipartisan approval.
[...]
Voting rights historian Steven Lawson, author of numerous books about the VRA and its impact, shared his like-minded conclusion with me. Writes Lawson:
Apparently the first amendment and the 14th amendment are meant to protect corporations and states but not the folks for whom it was designed. This is an activist court that decreed the coverage formula was outdated even though Congress held numerous hearings and found evidence that proved otherwise. So much for the conservative principle of judicial deference…This is an ideological, ahistorical decision.
Justice Roberts has been opposed to the VRA for three decades, ever since he was a young lawyer in the Reagan Justice Department. His sweeping and radical decision yesterday was more about ideology than the law, constitutional principles or Congressional deference be damned.
posted by zombieflanders at 9:52 AM on June 26, 2013 [4 favorites]


Precedent and original intent is only valuable if it coincides with your established political viewpoint don't ya know?
posted by vuron at 9:55 AM on June 26, 2013


Jairus: "If they had amended the formula so that it took into account a state's statistics from the last ten years instead of from a fixed date fifty years ago, we wouldn't be having this conversation."

Which, bizarrely, is something that the law does. Nobody is "trapped" in preclearance limbo forever no matter what they do. As one fine article put it, all you had to do to get out of preclearance is not be racist for a relatively short while and then not go back to your old ways (at least blatantly) once you get it.

That's why this is such a bad decision. It is precisely what the conservatives on the Court and elsewhere constantly rail against: the Court substituting its own judgement in place of Congress' without anything more than a fig leaf of Constitutional argument that doesn't even hold up to factual scrutiny. Pretty much their own definition of judicial activism.
posted by wierdo at 1:09 PM on June 26, 2013


Supreme Court ignores extensive social science evidence of voting discrimination against Blacks and Latinos in Section 5 jurisdictions
After studying census records from 2000 to 2010, voting records from 2000 to 2012, public opinion data, lawsuits about the Voting Rights Act and all relevant state legislation in recent years, Crayton, Barreto and the other scholars strongly disagree.

Their research found “clear and statistically significant evidence” that discrimination is still widespread today, though often in different forms, and even remains more widespread in Section 5-covered jurisdictions than elsewhere.

The scholars found that minorities in Section 5-covered jurisdictions continue to suffer from socioeconomic disparity that hinders their ability to participate in the political process. Those jurisdictions, they found, are also twice as likely as non-covered areas to adopt policies that make voting more difficult for African-Americans and language minorities. For example, last year a Latino Decisions blog post by Prof. Gabriel Sanchez documented that in Texas, racial and ethnic minorities were significantly less likely to possess a valid photo ID card for purposes of voting than were Whites.

Finally, their research found an extensive pattern of racially polarized voting — where Whites vote as a bloc against minority candidates — and racial prejudice against minorities that was statistically distinct and more negative in Section 5-covered jurisdictions, than the country overall. (Results posted below)

Professor Luis Fraga of the University of Washington, a national expert on the Voting Rights Act and co-author of the report said, “We all look forward to the day when such legislation will not be necessary. Our current reality, however, makes very clear that there is a continued role for the Justice Department and federal courts to guarantee that African-Americans and language minorities do not have their right to vote limited by states and local jurisdictions.”

Barreto, who holds an adjunct appointment in the UW School of Law, said the brief compiles objective empirical data to conclude that minority voters in Section 5-covered jurisdictions face more discrimination and racial prejudice, and have systematically less access to resources than White voters.

“These facts directly dispute the Shelby petitioners’ claims and demonstrate the continuing need for the Voting Rights Act,” Barreto said.
posted by zombieflanders at 1:14 PM on June 26, 2013 [1 favorite]


Linked somewhere else: Tom The Dancing Bug on Scalia
posted by lalochezia at 1:15 PM on June 26, 2013 [2 favorites]


Including every media outlet and SCOTUSblog? No, I don't think anyone is misreading

Well, the first link of the FPP itself says:
The court struck down Section 4 of the law, which describes the coverage formula, and not Section 5, known as the preclearance provision, which is the general requirement that the covered states get approval from the Justice Department or a federal court before making election-law changes.
So yeah, I'd say everyone freaking out about how the Supreme Court struck down preclearance is pretty clearly either misreading, or not reading at all.
posted by corb at 7:28 PM on June 26, 2013


They struck down the provision that requires jurisdictions to seek preclearance. Section 5 now exists as a remedy with no mechanism of application.
posted by Holy Zarquon's Singing Fish at 7:35 PM on June 26, 2013 [1 favorite]


As one fine article put it, all you had to do to get out of preclearance is not be racist for a relatively short while and then not go back to your old ways (at least blatantly) once you get it.

There are a lot of ways to make the formulas constitutional - including applying the VRA to each and every state, where each and every state required pre-clearance before changing their voting laws. I don't see why people seem to be more upset that they can't "keep the South in their place" than excited at the idea that a new Congressional formula might actually apply to every area where discriminatory laws were taking place.
posted by corb at 7:36 PM on June 26, 2013


corb: "So yeah, I'd say everyone freaking out about how the Supreme Court struck down preclearance is pretty clearly either misreading, or not reading at all."

Please try harder than this tortured semantic argument that rests on the reader not understanding that Section 5 without section 4 equals no legal means of implementing Section 5.
posted by tonycpsu at 7:39 PM on June 26, 2013 [2 favorites]


I don't see why people seem to be more upset that they can't "keep the South in their place" than excited at the idea that a new Congressional formula might actually apply to every area where discriminatory laws were taking place.

Do you mean aside from the plentiful evidence provided specifically stating that there is empirical data showing that the covered jurisdictions had higher than average instances of discriminatory behavior?
posted by zombieflanders at 7:44 PM on June 26, 2013 [1 favorite]


corb: "I don't see why people seem to be more upset that they can't "keep the South in their place" than excited at the idea that a new Congressional formula might actually apply to every area where discriminatory laws were taking place."

Putting quotes around "keep the South in their[sic] place" is an implication that this phrase was actually said verbatim by someone in this thread, which it was not until you said it. Please point to someone who said or even implied that this is about "keep[ing] the South in [its] place." This is about heightened scrutiny for jurisdictions with a history of finding creative ways around the requirements of the Voting Rights Act, most (but by no means all) of which are in the South, but I've seen nobody except you in this thread implying that this is about keeping the South "in [its] place."
posted by tonycpsu at 7:45 PM on June 26, 2013 [4 favorites]


Putting quotes around "keep the South in their[sic] place" is an implication that this phrase was actually said verbatim by someone in this thread, which it was not until you said it. Please point to someone who said or even implied that this is about "keep[ing] the South in [its] place."

My apologies, I did not mean to imply that that was a verbatim quote - I was attempting to use quotes around that phrase to demonstrate it as a method of thinking that I am saddened by, not as a statement. My personal belief is that this method of thinking is unconsciously a part of a lot of the feeling around the states currently (or until recently) covered by the formulas of the VRA.

Please try harder than this tortured semantic argument that rests on the reader not understanding that Section 5 without section 4 equals no legal means of implementing Section 5

Until Congress creates a new Section 4. If you believe that Congress relatively unanimously believes in its provisions, then surely Congress will be able to easily create a new Section 4?
posted by corb at 7:59 PM on June 26, 2013


"keep the South in their place"

Nope:
Maine had 18 towns that fell under pre-approval status, all of which got this “bailout,” as it’s called, in 1976. Three Connecticut towns got the bailout in 1984.... Massachusetts had towns covered by the formula: Amherst, Ayer, Belchertown, Bourne, Harvard, Sandwich, Shirley, Sunderland, and Wrentham. ... The last remaining New England laggards were 10 small New Hampshire towns: Antrim, Benton, Boscawen, Millsfield, Newington, Pinkham’s Grant, Rindge, Stewartstown, Stratford, and Unity ... Whenever those towns have wanted to, for example, use new voting machines or change polling places, they needed to inform the Department of Justice’s Civil Rights Division and get an OK first. And every new state law concerning voting laws—since they implicitly cover those towns—also required a letter to DoJ.
posted by benito.strauss at 8:04 PM on June 26, 2013 [3 favorites]


corb: " Until Congress creates a new Section 4. If you believe that Congress relatively unanimously believes in its provisions, then surely Congress will be able to easily create a new Section 4?"

You're really not making any sense here. The formula Congress relatively unanimously believed in was struck down. SCOTUS's act of legislating from the bench means that Congress now has to go back and change the provisions they relatively unanimously believed in such a way that it can still pass (and clear an inevitable filibuster in the Senate) yet not be deemed too hot or too cold or too big or too small by the Court's conservative majority.
posted by tonycpsu at 8:06 PM on June 26, 2013 [3 favorites]


For reference on jurisdictions previously covered under Section 5:

Where Tuesday’s Voting Rights Act ruling matters, in one map, Dylan Matthews, The Washington Post, 25 June 2013


As a reminder, any jurisdiction covered by Section 5 of the VRA could "bail-out" by not pulling any shenanigans for ten years. It's super simple stuff like not getting sued for racial discrimination in elections.
posted by ob1quixote at 8:07 PM on June 26, 2013 [4 favorites]


The formula Congress relatively unanimously believed in was struck down.

Well, sort of.

What I believe is closer to the actual answer is that few to any Congressmen, short of a joint effort, wanted to vote against any section of the VRA, for fear of political fallout or that the other party would use it against them in election material. This doesn't mean it's unanimously supported, it means the Congressmen are unanimously kept in check by fear.

Congress forced to draft a new formula means that they have to go back to the drawing board, and no one can be accused of "voting against the VRA" by presenting a competing vision. Thus, it is likely that there will be competing visions - or even that it won't be taken up at all for fear of those competing visions, or fear that someone else's vision might triumph. And states that previously didn't have to worry about the VRA might need to, or states that some people believe the VRA should be applied to might not be on that list

As a reminder, any jurisdiction covered by Section 5 of the VRA could "bail-out" by not pulling any shenanigans for ten years. It's super simple stuff like not getting sued for racial discrimination in elections.

Except that it's trivially easy for anyone who wants to to stop a state from being removed from the VRA. The section you quoted states,
There are no pending lawsuits that allege voting discrimination;
which means that anyone wishing to stop a state from being removed from the VRA just needs to ensure there's always a lawsuit in progress when the state starts nearing the ten year mark - or to throw things until something sticks. That something could be based on a tiny municipality in an enormous state, too - it doesn't take larger factors into account.
Thus, if a county is seeking to "bailout", it must establish each criteria for every city, town, school district, or other entity within its boundaries.
posted by corb at 8:15 PM on June 26, 2013


corb: "What I believe is closer to the actual answer is that few to any Congressmen, short of a joint effort, wanted to vote against any section of the VRA, for fear of political fallout or that the other party would use it against them in election material. This doesn't mean it's unanimously supported, it means the Congressmen are unanimously kept in check by fear."

You realize that you're just echoing "the Ethereal form of Justice Scalia" shown in panel #8 in the comic lalochezia linked to above, do you not?

Is the Supreme Court supposed to enter the souls of Congressmen to decide if they really, really mean their votes for all pieces of legislation, or just for ones that you disagree with ideologically?
posted by tonycpsu at 8:23 PM on June 26, 2013 [1 favorite]


corb: “Except that it's trivially easy for anyone who wants to to stop a state from being removed from the VRA.”
I'm curious if there is any evidence that this actually ever occurred. Regardless, looking at the objections of the Attorney General, most of the deep south would have to stop all discriminatory practices immediately and keep it up until at least 2022.
posted by ob1quixote at 8:33 PM on June 26, 2013 [1 favorite]


"What I believe is closer to the actual answer is that few to any Congressmen, short of a joint effort, wanted to vote against any section of the VRA, for fear of political fallout or that the other party would use it against them in election material. This doesn't mean it's unanimously supported, it means the Congressmen are unanimously kept in check by fear."

If they're prevented from voting against a law because they're afraid it would cost them an election, that means that the will of the people is to support that law as it stands. Given that the voting rights act enhanced individual rights at the expense of state's rights, you're essentially standing against liberty and democracy and using the justification that the public isn't served or doesn't want this law as evidenced by the fact that the people want this law.

It's ridiculous and incoherent.
posted by klangklangston at 9:40 PM on June 26, 2013 [5 favorites]


fear of political fallout

Also known as "representative democracy".
posted by benito.strauss at 9:46 PM on June 26, 2013




Given that the voting rights act enhanced individual rights at the expense of state's rights, you're essentially standing against liberty and democracy and using the justification that the public isn't served or doesn't want this law as evidenced by the fact that the people want this law.

Liberty and democracy are not necessarily the same thing. Particularly when the demos is sick.

I'm not claiming the people don't want the law. I'm claiming I find that the law as it stood was morally wrong. There is a difference.
posted by corb at 10:56 PM on June 26, 2013


"Liberty and democracy are not necessarily the same thing. Particularly when the demos is sick.

I'm not claiming the people don't want the law. I'm claiming I find that the law as it stood was morally wrong. There is a difference.
"

You haven't demonstrated that the law was morally wrong, let alone that democracy was sick. Those are bold claims, and your reasoning is, again, incoherent.

And by standing against the individual's right to vote being protected — which has only come with federal power — in order to stan for state's rights, you are standing against individual liberty and the necessary protection thereof. Is this some sort of bizarro 9th-before-10th thing?
posted by klangklangston at 11:02 PM on June 26, 2013 [2 favorites]




Liberty and democracy are not necessarily the same thing. Particularly when the demos is sick.

I'm not claiming the people don't want the law. I'm claiming I find that the law as it stood was morally wrong. There is a difference.


So, despite the reams of evidence showing that the pre-clearance jurisdictions (most but not all of which were in the South) still have demonstrable levels of discriminatory behavior, when given the choice between the law standing based on Congress' 2006 reauthorization and the law being struck down and Congress not taking any action because of polarization, you would rather that the law didn't exist and discrimination be allowed everywhere because of "moral" reasons that have not a single shred of evidence behind them.
posted by zombieflanders at 4:02 AM on June 27, 2013 [1 favorite]


Corb, I am still not sure what harm the VRA does, you think it does.

You do realize that Congress will not come up with a new formula, correct? You are aware of Congressional dysfunctionality? You seem informed, so it would seem that you do.

So on the one hand, we have racism and the history of racism (see Gingsburg's opinion for examples)

On the other hand, we have the values that you think are harmed by the VRA. Except I have no idea what those values are.

In effect, it seems to this liberal reader that you are saying it would rather be better for people to be disenfranchised than for the VRA to exist. Except why does the VRA existing hurt anything?
posted by angrycat at 4:26 AM on June 27, 2013


Thus, it is likely that there will be competing visions - or even that it won't be taken up at all for fear of those competing visions, or fear that someone else's vision might triumph.

Let us be clear: the only informational content these statements could have, unless they are complete non sequiturs and carry no information at all, is that if a new formula doesn't pass, this will be because Yankees are afraid preclearance might apply to them too. This falls flat on its face given that under the existing Section 4, New York and California were partially under preclearance, which means any statewide electoral law required preclearance. Yankeeland was already subject to preclearance.

More broadly, this is an asinine statement to make. It is certainly true that no alternative formula will be taken up as long as the House remains controlled by Republicans. But be clear: this will not be from some fear of alternatives. It will be because preclearance helps black people vote.

But blaming SCOTUS for Congress' dysfunctionality is just fubar. They are obliged not to consider politics and to uphold the law.

Nobody who knew anything of the Court could think that this decision was anything other than pure partisan politics of the crassest variety.
posted by ROU_Xenophobe at 4:55 AM on June 27, 2013 [3 favorites]


Just wondering: what is left of America to destroy? At what point can we say that we have passed the point of no return, the democratic event horizon? You can be put in prison for life without a trial, have your home foreclosed and your bank account seized. The Voting Rights Act has been overturned, the economy feudalized, freedom of speech nakedly suppressed, the laws openly flouted by banks, the Presidency discredited by multiple disputed elections, corporations allowed to openly influence elections, the President granted the power to make war without the consent of congress, the Congress effectively destroyed as a legislative body, the church and state division weakened or abolished in major regions of the country, civilian police forces armed with combat assault weaponry, universal private surveillance established, permanent undeclared wars fought with armies drawn entirely from the poorest sectors of the populace, and the fourth through ninth amendments of the Bill of Rights effectively overturned (though happily, we are still protected from having soldiers move into our homes). At what point do we stop saying, "our ideals and traditions are in peril," "our rights are at risk," and all the rest of that crap? How is America significantly different from Bolivia? Can someone explain this to me? Or better still, don't. I don't want to know.
posted by Balok at 5:32 AM on June 27, 2013


Just wondering: what is left of America to destroy?

*Music
*Movies
*Microcode
*High-speed pizza delivery
posted by ROU_Xenophobe at 5:33 AM on June 27, 2013 [6 favorites]


Liberty and democracy are not necessarily the same thing. Particularly when the demos is sick.

So "curing" the demos requires restrictions on the right to vote? Tell me more of these cures, corb. I'm hearing a lot of Hans-Hermann Hoppe here.

What's sick, IMO, is a country where the right to be armed is a less alienable right than the right to vote.
posted by octobersurprise at 6:15 AM on June 27, 2013 [7 favorites]


corb: "Liberty and democracy are not necessarily the same thing. Particularly when the demos is sick.

I'm not claiming the people don't want the law. I'm claiming I find that the law as it stood was morally wrong. There is a difference.
"

I've spent five minutes trying to decide how to respond to your beautifully succinct expression of what modern libertarianism has become, but I think it's probably best to just quote it in full and let your words do the talking.
posted by tonycpsu at 8:03 AM on June 27, 2013 [3 favorites]


There are a lot of ways to make the formulas constitutional - including applying the VRA to each and every state, where each and every state required pre-clearance before changing their voting laws. I don't see why people seem to be more upset that they can't "keep the South in their place" than excited at the idea that a new Congressional formula might actually apply to every area where discriminatory laws were taking place.

People are upset because the removal of preclearance -- which is what has actually happened, is happening, and will be happening for the foreseeable future -- directly impacts the voting rights of citizens. Look at all the states that have already moved to enact laws and amend voting processes that did not, or would not, survive preclearance: it's likely that many of those are going to be challenged once enacted, but in the meantime the impacted citizens in those states may lose their chance to vote, or have to deal with hassles, obstructions, and uncertainties that could be avoided.

There are probably -- I'm guessing here -- that many people who are upset about the removal of preclearance would also be in favor of extending preclearance to other areas. Personally, I would love it if my own state (Pennsylvania) was covered. Voting is integral to citizenship, to democracy, and it needs an extremely high level of protection, lest the selective denial of voting rights allow more power accrue to the denier, who can leverage their control of the mechanisms of government to keep themselves (an individual, a party, a group) in power, or others out. But we're not talking about hypothetically expanding the VRA; we're talking about the fact that it has actually been shrunk.

It is not now, nor has it ever, been about 'keeping the South in their place,' though discriminatory voting systems have often been about 'keeping Southerners in their place.' It was specifically to reverse and prevent that discrimination that the VRA was passed, and that it did so unevenly is hardly a reason to celebrate its weakening; rather, it is a reason to wish that it had been strengthened. Hopefully, it now will be; pessimistically, I doubt that it will.
posted by cjelli at 9:57 AM on June 27, 2013 [3 favorites]


*High-speed pizza delivery

Preserving this basic right is why we need to elect Herman Cain for president in 2016.
posted by homunculus at 9:59 AM on June 27, 2013 [2 favorites]


in the meantime the impacted citizens in those states may lose their chance to vote, or have to deal with hassles, obstructions, and uncertainties that could be avoided

I had to help my mother, who is 77 and can't drive, get a state ID so she can continue to vote now that the voter ID law is going into effect law here in Texas. Normally the ID costs $16, but it cost her $6 because she's over 70.

Technically by DPS rules, as of yesterday, that ID should have been free because she needs it to vote, but I didn't even think of it at the time, and because I didn't ask for it, we paid the $6. Not that it was a significant cost for us, but there are people for whom it, or the $16 for a non-senior adult, would be. Also, we had all the documents needed to prove identity (the DL she was surrendering) and residence (bills), but not everybody has that on hand, or knows to look it up online first.

We kind of stumbled through the process and it worked out for us, but we had the time and the money to make it easy and I could have taken her back next week with better documents if I'd needed to. For someone who didn't have that time or money, voter ID law is an obstacle to voting. I believe that voter ID will have a disproportionate impact on minority voters in Texas. This kind of thing is why I am unhappy that the VRA was weakened in any way: practical effects on the ground.
posted by immlass at 10:09 AM on June 27, 2013 [1 favorite]


If you have to pay money specifically to vote, and access is not equitable for every citizen, that is a poll tax. These are Constitutional violations.
posted by zombieflanders at 10:19 AM on June 27, 2013 [2 favorites]




Payment, by the way, includes mandatory purchases of additional ID or documentation, especially if is required to be purchased via a 3rd party private entity.
posted by zombieflanders at 10:22 AM on June 27, 2013 [1 favorite]



The very excellent comment from The White Hat about the kinds of obstacles people face when trying to get a free voter id.


Wow. WTF.
posted by sweetkid at 10:27 AM on June 27, 2013


If you have to pay money specifically to vote, and access is not equitable for every citizen, that is a poll tax. These are Constitutional violations.

I wasn't aware of the 24th Amendment, until I stumbled across it when I was looking for material for a joke. It was ratified in 1964:
The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
(Oh, and article 2 gives Congress the right to pass laws to enforce it. Whatever that's worth these days.)
posted by benito.strauss at 10:33 AM on June 27, 2013


The Dignity of the South
Beyond the sovereign dignity of an individual state, we have the suggestion of comparative “equal dignity” or “equal sovereignty” between states, a regional South-versus-North assertion of the equality or dignity of the South as a region, the indignity of the suggestion that the past is not even past, and perhaps even—getting a bit personal—the suggestion that the citizens of the South might even today be “more racist” than those of the North.
...
However, in a different and more important sense, none of this is new at all. These seemingly novel elements themselves have a history—and a life outside the courts. They are linked to an important set of sharply contested claims about the meaning of the Civil War and the meaning of Reconstruction that Americans have been fighting about for the past 150 years. The legal significance of these contested claims is that they affect how we understand, even today, state sovereignty and the balance of federal and state power.

This Essay is short, so I will be blunt. A historical memory of a “War Between the States,” followed by a reunion between noble blue and gray on equal terms—with Reconstruction a best-forgotten corrupt interregnum in between—might well yield the conclusion that antebellum understandings of state sovereignty remain largely intact, even today. However, such a conclusion cannot be sustained if we instead remember the Civil War and Reconstruction as a radical transformation of the South through federal military and civilian power, with a series of amendments specifically ratifying the use of that federal power to establish the equal citizenship of Southern blacks.
posted by the man of twists and turns at 8:28 PM on June 27, 2013 [3 favorites]


Liberty and democracy are not necessarily the same thing. Particularly when the demos is sick.

That was the problem with the states under the VRA-- the demos is sick and preventing people from voting.

I'm not claiming the people don't want the law. I'm claiming I find that the law as it stood was morally wrong.

That may be so, from whatever warped and broken sense of morality you ascribe to, but it was certainly constitutional. I think that Justice Ginsburg has amply outlined the problems of the states that fell under the VRA.
posted by deanc at 8:29 PM on June 27, 2013 [2 favorites]


Yeah, honestly, it's not that the people of the South are more racist, it's that their institutions certainly are.
posted by klangklangston at 8:51 PM on June 27, 2013 [2 favorites]


the man of twists and turns: "The Dignity of the South"

Excellent piece. Two other excerpts worth quoting:
Particular Justices of the Court may well be unaware of either the roots or the implications of a principle of the equal dignity of the states—but that does little to alter either the roots or the implications, which are profound. To elevate a principle of the equal dignity of the states to the status of a constitutional constraint on the Reconstruction Power, in a case about federal protection for minority voting rights, would be to inscribe into the Constitution some of the core constitutional claims, unsuccessful even in their own time, of the defeated Confederacy and its apologists.
...
This particular way of paring back Congress’s Reconstruction Power is all the more pointed because, in fact, federal law routinely treats one state differently from another in ways large and small, because states differ in their circumstances in innumerable respects. Compared to its neighbors, one state might have more military bases, more native Alaskans, more citizens without health insurance, or a more congenial mountain redoubt for the permanent storage of the nation’s radioactive waste. An equal dignity of the states principle would presumably continue to allow such differences in treatment where circumstances warrant. Therefore, to apply an equal dignity of the states principle in Shelby County to strike down section 5 would be to assert that the one salient difference in circumstances among the states that the Constitution requires Congress to ignore is the fact that certain states recently spent most of a century openly defying the Reconstruction Amendments by denying their minority citizens the right to vote.
posted by tonycpsu at 9:15 PM on June 27, 2013 [3 favorites]


Yeah, honestly, it's not that the people of the South are more racist, it's that their institutions certainly are.

The (white) people of the areas formerly covered by preclearance are also more racist. This is easily demonstrated with survey evidence to the point that it is impossible for reasonable people to differ about this any more than they can differ about anthropogenic global warming.
posted by ROU_Xenophobe at 4:22 AM on June 28, 2013 [2 favorites]


Fair enough, I just tend to think that the focus on the people leads to intractable defensiveness, and laws affect structural institutions more than individuals.
posted by klangklangston at 8:10 AM on June 28, 2013


Fair enough, I just tend to think that the focus on the people leads to intractable defensiveness, and laws affect structural institutions more than individuals.

I think this is a good point. To a large degree, the choices for us not to support these kind of racist structures are much easier, whereas for many of the southern states with a Jim Crow history, it is much more difficult for individuals to oppose them, because the very structure of their laws and societies prevent them from doing so. In the 50 years they had to rebuild those structures, they failed to do so.

They are not simply states in which there are laws that make it difficult for blacks to vote. It is a society whose structure is designed to make it difficult for blacks to vote, and the laws are a piece of that structure.

That said, from a moral reasoning point of view, "that structure is people, my friends." The structure exists because you have millions of individuals making conscious choices each and every day to perpetuate it.
posted by deanc at 8:39 AM on June 28, 2013 [1 favorite]


The Voting Rights Act: Should the Court consider “current political conditions?”
[T]he Voting Rights Act is unconstitutional because Congress did not do enough when it had the opportunity. The judicial scholars we consulted could think of no previous case where this has happened.

It is interesting to think about the implications of different approaches to lawmaking in light of the Shelby County v. Holder decision. How would voting rights be different today if, in 1965, Congress had passed a permanent rather than temporary law? Where would we be if Congress had allowed the VRA to expire in 2006, for example because lawmakers were unable to reach a political consensus at that time?

The Court may be correct in its implicit judgment that Congress chose the path of least resistance in reauthorizing section 4(b) without making substantial revisions. But that is how electorally accountable institutions operate. To suggest that Congress should have done more is naive at best, and the Court fails to offer a remedy that reflects the realities of lawmaking. Now there is no section 4(b). How is this a better outcome than a workable albeit flawed section 4(b)? Hundreds of covered jurisdictions have successfully “bailed out” of the pre-clearance requirements delineated in Sections 4 and 5 over the past 30 years. They have done so by successfully demonstrating that they care about citizens’ voting rights (ironically Shelby County is not among them). In addition, numerous jurisdictions outside of the deep south (in New Mexico and elsewhere) must seek pre-clearance.

Though the language of 4(b) may seem outdated, the law still seems to work and it is almost assuredly better than what would exist had Congress failed to reauthorize the VRA in 2007, or had it passed a permanent law in 1965.
posted by zombieflanders at 8:55 AM on June 28, 2013


Surprise, surprise...Texas, which was covered by Sections 4 and 5, doesn't have equitable access to voter ID despite it being required:
[T]here are 70 counties within Texas that do not provide [locations to obtain voter IDs]. From Irion and Crockett Counties in Central Texas to La Salle and Duvall Counties in South Texas, TxDPS's website shows that nearly 30 percent of Texas counties do not provide the necessary offices at which residents will have to arrive if they want to pick up an EIC.
At least they're going to spare no expense to streamline the process or effort to educate people on--
Cesinger said she didn't know how many Texans would apply for the new cards or how many would need them. "There are no projections for either of those," she said.

She also said she was unsure as to how long it would take to receive the EIC following an application, or what kind of outreach programs, if any, her department would use to educate Texans as to the new regulations.

"As far as it coming in mail, I'm not sure exactly on what the timing is," she said. "We're certainly working with the Secretary of State's office to educate the public on this. ... Again, this is pretty fresh."

Alicia Pierce, the Secretary of State's communications director, said her office would be unfurling a media campaign as the November election date moved closer, but that she was unsure what forms of educational outreach it would contain.
Well, then, surely they didn't see this coming, and a federal court hadn't ruled against this on VRA pre-clearance grounds that it wouldn't disproportionately affect the poor and minorities, and require travels of upwards of, say, 200 miles, right? Oh, wait:
In its unanimous 56-page ruling, the federal judges found that the fees and the cost of traveling for those voters lacking one of the five forms of ID disproportionately affected the poor and minorities. “Moreover, while a 200- to 250-mile trip to and from a D.P.S. office would be a heavy burden for any prospective voter, such a journey would be especially daunting for the working poor,” the decision read, referring to the dozens of counties in Texas that do not have a D.P.S. office.
Okay, okay, so at least it's not a poll tax since it's free, as are all the requirements to obtain--
Those lacking one of the five types of identification must obtain an election identification certificate, a government-issued card similar to a driver’s license. Prospective voters would need to travel to a state Department of Public Safety office to get an election ID card, and, although it is free, they would have to verify their identity to obtain one, in some cases paying $22 for a certified copy of their birth certificate.
Tell me again how this isn't Jim Crow all over again?
posted by zombieflanders at 9:57 AM on June 28, 2013 [9 favorites]


Remove all sharp objects from your vicinity before you read the "literacy test" Louisiana used to use to prevent African-Americans from voting.
posted by Horace Rumpole at 10:44 AM on June 28, 2013


This ruling is not going to stand as it is now.

To judge from the last election, Voter ID laws seem to have only motivated african-american voters. This ruling is a strike at their heart: it is intolerable. Furthermore, there is just no way that America's first African-American president lets a key victory of the Civil Rights movement be reversed without lifting a finger. NO WAY.

On the Republican side of the fence, fighting to keep this is, as Josh Marshall notes, toxic. I believe 'toxic' understates the situation. If people decide to, say, march for their right to vote, it is effectively a relitigation of the Civil Rights struggle - the visuals and narrative would be inescapable. Republicans would be reduced to their hardcore, whereas it would energize and mobilise the Democrat's base.

The civil rights movement is a rock of modern American history, one of the foundation stones of the way things are now. Going into the 2014 midterms the Democratic party can, and should, break the back of the Republican party over it.
posted by Ripper Minnieton at 2:55 PM on June 28, 2013 [4 favorites]


I appreciate your optimism and idealism, but even if it became an issue, midterm elections are the least likely place for it to happen. Plus, the effect it will have at the state and local levels is, at the moment, incalculably bad given how most state legislatures work and their current ideological makeup, and Census redistricting has already made regaining control of state legislatures and the US House near-impossible before 2020.
posted by zombieflanders at 3:01 PM on June 28, 2013 [2 favorites]


Zombie - ah, well I'm glad the comment didn't come across as too flip and calculating. Because I was just thinking in terms of raw political calculation.

Well, okay, maybe not the midterms. But there will be a reaction, and then the republicans in congress will have to explain why their state's rights trump human rights, which is just all kinds of historically ugly. It's just too big an issue to stay stable.
posted by Ripper Minnieton at 3:56 PM on June 28, 2013


TBH I could be overestimating the effect, but history has proven otherwise in this regard. There's a good chance that between Shelby and getting more and more publicly racist the longer an immigration bill isn't passed (and especially if it's killed in the House with the GOP's finger on the trigger) that the GOP may have taken a gun to their lower extremities. However, the voter suppression and disenfranchisement has so much potential and is so widespread that it might not matter for the next couple elections. And that might be all they need to do irreversible and in the worst cases fatal harm to women, the poor, and environment, to name a few.
posted by zombieflanders at 4:07 PM on June 28, 2013


The threat is real, ZF, and there's no room for complacency, but:

It's not clear that redistricting's potential to change things is unlimited. Arizona, for example, has its boundaries drawn up by a commission. One of these elections, it's going to be a swing state. As for Texas, it's ground zero for redistricting/Voter ID - why? Check out the future population projections here. Redistricting is a bucket of water; demographics is the tidal wave.

It's at least arguable (looking at the results of 2012) that Voter ID laws can be ameliorated or even overcome by a sufficiently effective voter registration drive: all that expertise currently resides in the blue corner.

Ultimately, I just can't believe that the coalition of african-american, latino and young voters, fresh from a stunningly effective demonstration of political clout, are going to take this lying down: it is an direct attack on the foundations of their new power, and an insult to their history.
posted by Ripper Minnieton at 10:20 PM on June 28, 2013 [2 favorites]


If anyone else read the justification for striking 4 and thought WTF, there are two good articles at Slate (article 1, article 2) explaining that they are, in fact, bull-pucky, and that Roberts is really good at strategically slinging such bull.
posted by benito.strauss at 10:35 PM on June 28, 2013


It's at least arguable (looking at the results of 2012) that Voter ID laws can be ameliorated or even overcome by a sufficiently effective voter registration drive: all that expertise currently resides in the blue corner.

I actually think that it currently resides in the Obama team's organizational apparatus, so as long as that doesn't skip a generation (as it were), at the very least 2016 is salvageable. Still don't know about midterms, which are almost never good for the President's party, and 2nd-term ones moreso.

But you know what? You're making me less of a cynic, so that's a good thing.
posted by zombieflanders at 3:30 AM on June 29, 2013 [1 favorite]


Ha. Glad to be of service ZF!
posted by Ripper Minnieton at 3:12 PM on June 29, 2013




Some Voting Rights Act Fakery
posted by homunculus at 1:32 PM on July 19, 2013



Justice Department to challenge states’ voting rights laws
The Justice Department is preparing to take fresh legal action in a string of voting rights cases across the nation, U.S. officials said, part of a new attempt to blunt the impact of a Supreme Court ruling that the Obama administration has warned will imperil minority representation.
posted by Golden Eternity at 7:45 AM on July 25, 2013 [1 favorite]


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