The Last Stand of the Voting Rights Act: Shelby Co. v. Holder

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The Something Awful Forums > Discussion > Debate & Discussion > The Last Stand of the Voting Rights Act: Shelby Co. v. Holder

The Warszawa: Jun 6, 2005; "If they're shooting at you, you know you're doing something right."

Today, the Supreme Court heard oral arguments in Shelby Co. v. Holder, which can be summed up as "A county in Alabama is upset that, due to a long-standing history of being racist as poo poo with the franchise, it has to ask permission to make any election/voting-related changes before implementing these changes." More technically, it deals with Sections 4 and 5 of the Voting Rights Act of 1965, which was reauthorized in 2006 without modifying Section 4. This will become relevant.

What is the Voting Rights Act?
Whatever Justice Scalia might imply, the Voting Rights Act is pretty much exactly what it says on the box - it's sweeping legislation to eliminate, mitigate, or frustrate efforts and structures to restrict the franchise on the basis of race.

For anyone unfamiliar with the Voting Rights Act's structure, Section 5 is the "preclearance" provision, which requires covered jurisdictions to submit any election-related changes (not just redistricting but moving from paper to electronic ballots, early voting changes, etc.) to either the DOJ Voting Rights Section or a three-judge panel of the D.C. Circuit for approval against a retrogression standard ("does this do anything to reduce or dilute minority voting power?"). This is different both in procedure and substance than the Section 2 vote dilution standard, which requires both effect and intent. Intent standards in racial discrimination cases aside, the problem here is that vote dilution cases tend to be ex post - so damage is already done by the time of resolution. There's no real question that the preclearance regime is within Congress's power to enact.

Okay, that sounds pretty cool. What's the problem?
The cynical answer is "Republicans really don't want minorities voting, and conservative judges are pretty much GOP hacks even if they occasionally bail out PPACA." This isn't inaccurate. But the issue here is that the coverage formula is "outmoded" and "offends the dignity of the Southern states by implying that they're more racist than other states." People forget that parts of New York, Michigan, etc. are covered by Section 5, mostly because it's Southern states challenging it. What is the formula?

The Department of Justice posted:

As enacted in 1965, the first element in the formula was whether, on November 1, 1964, the state or a political subdivision of the state maintained a "test or device" restricting the opportunity to register and vote. The Act's definition of a "test or device" included such requirements as the applicant being able to pass a literacy test, establish that he or she had good moral character, or have another registered voter vouch for his or her qualifications.

The second element of the formula would be satisfied if the Director of the Census determined that less than 50 percent of persons of voting age were registered to vote on November 1, 1964, or that less than 50 percent of persons of voting age voted in the presidential election of November 1964. This resulted in the following states becoming, in their entirety, "covered jurisdictions": Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia. In addition, certain political subdivisions (usually counties) in four other states (Arizona, Hawaii, Idaho, and North Carolina) were covered. In fully covered states, the state itself and all political subdivisions of the state are subject to the special provisions. In "partially covered" states, the special provisions applied only to the identified counties. Voting changes adopted by or to be implemented in covered political subdivisions, including changes applicable to the state as a whole, are subject to review under Section 5.

In 1970, Congress recognized the continuing need for the special provisions of the Act, which were due to expire that year, and renewed them for another five years. It added a second prong to the coverage formula, identical to the original formula except that it referenced November 1968 as the relevant date for the maintenance of a test or device and the levels of voter registration and electoral participation. This addition to the formula resulted in the partial coverage of ten states, including Alaska, Arizona, California, Connecticut, Idaho, Maine, Massachusetts, New Hampshire, New York, and Wyoming. Half of these states (Connecticut, Idaho, Maine, Massachusetts, and Wyoming) filed successful "bailout" lawsuits.

In 1975, the Act's special provisions were extended for another seven years, and were broadened to address voting discrimination against members of "language minority groups," which were defined as persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage." As before, Congress expanded the coverage formula, based on the presence of tests or devices and levels of voter registration and participation as of November 1972. In addition, the 1965 definition of "test or device" was expanded to include the practice of providing any election information, including ballots, only in English in states or political subdivisions where members of a single language minority constituted more than five percent of the citizens of voting age. This third prong of the coverage formula had the effect of covering Alaska, Arizona, and Texas in their entirety, and parts of California, Florida, Michigan, New York, North Carolina, and South Dakota.

In 1982, the coverage formula was extended again, this time for 25 years, but no changes were made to it. In 2006, the coverage formula was again extended for 25 years. Section 4, along with those other sections that are dependent upon it, such as Section 5 and 8, will expire in 2031.

As this shows, once being covered by Section 5 does not mean you will forever be covered by Section 5 - Section 4 also provides a "bailout".

The Department of Justice posted:

Section 4 also provides that a jurisdiction may terminate or "bailout" from coverage under the Act's special provisions. Originally enacted in 1965 as a means to remedy any possible over inclusiveness resulting from application of the trigger formula, Congress amended this procedure in 1982 so jurisdictions that meet the statutory standards can obtain relief. The amendment, which took effect on August 5, 1984, establishes an "objective" measure to determine whether the jurisdiction is entitled to "bailout".

A jurisdiction seeking to "bailout" must seek a declaratory judgment from a three-judge panel in the United States District Court for the District of Columbia. On June 22, 2009, the Supreme Court held that any jurisdiction currently required to make Section 5 submissions may seek to "bailout" from coverage if it meets the statutory criteria set forth below.

The successful "bailout" applicant must demonstrate that during the past ten years:

- No test or device has been used within the jurisdiction for the purpose or with the effect of voting discrimination;
- All changes affecting voting have been reviewed under Section 5 prior to their implementation;
- No change affecting voting has been the subject of an objection by the Attorney General or the denial of a Section 5 declaratory judgment from the District of Columbia district court;
- There have been no adverse judgments in lawsuits alleging voting discrimination;
- There have been no consent decrees or agreements that resulted in the abandonment of a discriminatory voting practice;
- There are no pending lawsuits that allege voting discrimination; and
- Federal examiners have not been assigned;
- There have been no violations of the Constitution or federal, state or local laws with respect to voting discrimination unless the jurisdiction establishes that any such violations were trivial, were promptly corrected, and were not repeated.
- Before being allowed to "bailout", the jurisdiction must have eliminated those voting procedures and methods of elections that inhibit or dilute equal access to the electoral process. It also must demonstrate that it has made constructive efforts to eliminate intimidation and harassment of persons seeking to register and vote and expand opportunities for voter participation, such as opportunities for registration and voting, and to appoint minority officials throughout the jurisdiction and at all levels of the stages of the electoral process. The jurisdiction must also present evidence of minority electoral participation.

In addition, these requirements apply to all governmental units within the geographical boundaries of the jurisdiction. 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.

The jurisdiction seeking "bailout" must publicize the intended commencement and any proposed settlement of the action; any aggrieved party may intervene in the litigation. After the granting of a declaratory judgment, the statute requires a ten-year "recapture" period. During this time, the district court may reopen proceedings should the jurisdiction engage in any conduct that would have prevented the jurisdiction from bailing out in the first instance. Under such circumstances, the district court will review the evidence and determine whether to reinstate coverage.

The Attorney General is also authorized to consent to an entry of judgment granting the "bailout" if the Attorney General concludes after investigation that the jurisdiction has complied with all of these requirements. Prior to actually filing a petition with the District of Columbia court, any jurisdiction interested in seeking "bailout" may submit a request to the Attorney General with supporting documentation and evidence. Upon receipt, the Voting Section of the Civil Rights Division will undertake an investigation to determine whether the Attorney General would be willing to enter into a consent decree or would oppose the "bailout" petition. If the Attorney General determines that consent to an entry of judgment is proper, the Voting Section will work with the jurisdiction to agree on the terms of the consent decree to be filed with the "bailout" petition when the litigation is actually filed.

Northwest Austin Municipal Utility District No. 1 v. Holder, the last voting rights case, was decided on bailout eligibility, and was widely seen as a punt but signaled that there were probably four votes to strike down Section 5.

What's supposedly at issue here is that some jurisdictions are covered and not others, and whether the justifications for that difference are sufficient. For someone like me, who thinks that the "dignity of states" sounds an awful lot like "states' rights (to discriminate against minorities)', the answer is unquestionably yes. Garrett Epps at The Atlantic has a good rundown and takedown of this argument.

"Garrett Epps posted:

The theoretical sin of � 5 is that it treats some states--those with the worst history of racial exclusion from the vote--differently than others. Justice Anthony M. Kennedy summed up the objection in 2009 during oral argument in an earlier case, Northwest Austin Municipal Utility District v. Holder: "the Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio. The sovereignty of Alabama, is less than the sovereign dignity of Michigan. And the governments in one are to be trusted less than the governments than the other."

The correct answers to this question are, respectively,"yes," and "what's your point?" The states and parts of states covered by � 5 are "trusted" less than others because Congress has repeatedly found them to be the worst offenders in the historical crime of racial vote-rigging. And neither those states--nor any other state in the Union--has any kind of "sovereign dignity" that needs the Court's protection against infringement by their own voters.

Opponents of � 5 suggest that it is a sort of historical oddity, like great-grandpa's CSA belt buckle, of no relevance to today's "post-racial" world. Shelby County argues that official racism is dead, buried, forgotten: "There is no evidence in the legislative record suggesting that the racial animus of the 1960s in covered jurisdictions has been hibernating for two generations."

But that's the second oddity. The people who actually run the political system overwhelmingly disagree. The Act has been up for renewal in 1970, 1975, 1982, and 2006. On each occasion, members of both Houses have opposed renewal; on each occasion, Congress has held extensive hearings into current conditions in covered jurisdictions--and voted to keep � 5. In 1970 and 1975, Congress adjusted the formula for a "covered jurisdiction" to make sure it captured those places where racism persisted. In 2006,when Republicans controlled both Houses of Congress, the vote to renew was 390-33 in the House and 98-0 in the Senate. George W. Bush signed the extension with a flourish, inviting Rosa Parks and members of the King family to be present.

So how did oral argument go?
Oral argument before the Supreme Court is something that people have different opinions about. Some people (me included) think it's pretty much just grandstanding, that cases are decided on the papers (or really, that Roberts has had an opinion striking down Section 5 in his desk since he was on the D.C. Circuit). The decision that was appealed to the Supreme Court was authored by Judge David Tatel, who is both blind and stone-cold badass on voting rights cases. It can be found here. I expect this opinion to be referred to minimally in the Court's decision. Crit life.

Basically, oral argument went as expected. Four votes are definitely against Section 5, four votes are for it, Kennedy is probably going to vote with the former and not the latter. There were some funny moments. Sahil Kapur at TPM writes:

"Sahil Kapur posted:

The Voting Rights Act took a beating from conservative justices Wednesday during oral arguments at the Supreme Court.

At issue is the constitutionality of Section 5 of the 1965 law, which requires state and local governments with a history of voter disenfranchisement to pre-approve any changes that affect voting with the Justice Department or a federal court.

Oral arguments showed a sharp divide along ideological lines and suggested that the conservative majority is strongly inclined to overturn Section 5 of the half-century-old law.

A question posed by Chief Justice John Roberts to the Obama administration�s lawyer defending the Voting Rights Act captured the tenor of the proceedings.

�Is it the government�s submission that citizens in the South are more racist than citizens not in the South?� Roberts asked.

Roberts and Justice Anthony Kennedy, who led the questioning challenging the Voting Right Act, both labeled the formula used for Section 5 �reverse engineering.�

Kennedy said the formula �obscures the real purpose.� He declared that �if Congress is going to single out states, it should do so by name.� Although he said there�s no question Section 5 was �utterly necessary� in 1965, its validity now is �not clear� to him.

�The Marshall Plan was very good too,� Kennedy said. �But times change.�

Justice Antonin Scalia attributed the continued congressional reauthorization to the �perpetuation of racial entitlement� and suggested that it will be renewed endlessly because members of Congress would never let it lapse for fear for political repercussions.

�I don�t think there is anything to gain by any senator by voting against this Act,� Scalia said. �This is not the kind of question you can leave to Congress. They�re going to lose votes if they vote against the Voting Rights Act. Even the name is wonderful.�

Justice Samuel Alito asked several hostile questions suggesting that Section 5 was unfair to the covered jurisdictions. �Why shouldn�t it apply everywhere in the country?� he asked.

Justice Clarence Thomas, who did not speak during arguments, has already signaled in a 2009 written opinion that he believes Section 5 is unconstitutional.

Justice Sonia Sotomayor led the questioning defending the Voting Rights Act.

The purpose of Section 5 was to proactively quash voter discrimination where it�s most likely to emanate, but conservatives argue that it has outlived its purpose and now discriminates against the mostly southern regions covered.

The historic 1965 law has been reauthorized four times by Congress, most recently in 2006 for a period of 25 years. Its constitutionality has been affirmed four times by the Supreme Court, most recently in 1999.

The irony of a bunch of rich white guys on the Supreme loving Court talking about how times have changed and racism isn't an issue in the South anymore is not lost on me. Having a black man and a Latina in the Court cafeteria must have really thrown them for a loop. Scalia, as usual, is the ray of laughter and sunshine by suggesting that Congressional intent can't be trusted because voting against the VRA would have political repercussions.

What happens now?

We wait. And drink.

UPDATE: Oral argument transcripts are here.

The Warszawa fucked around with this message at Feb 28, 2013 around 22:13

# ? Feb 27, 2013 18:31

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# ? May 21, 2013 17:51

Adar: Jul 27, 2001; William "J." Fillmaff in training

The Warszawa posted:

So how did oral argument go?
Oral argument before the Supreme Court is something that people have different opinions about. Some people (me included) think it's pretty much just grandstanding, that cases are decided on the papers (or really, that Roberts has had an opinion striking down Section 5 in his desk since he was on the D.C. Circuit). The decision that was appealed to the Supreme Court was authored by Judge David Tatel, who is both blind and stone-cold badass on voting rights cases. It can be found here. I expect this opinion to be referred to minimally in the Court's decision. Crit life.

The thing that soured me on con law and subsequently the 'school' part of law school was the insistence of everyone involved - professors, textbooks, other students - that interpretative theories of the last 20 or so years of Supreme Court opinions on any topic that did not hinge on the political opinions of the respective justices were valid, in spite of the last 20 years of recorded history*. I've seen nothing since I graduated that would dispute this.

*possibly 200

Anyway, I haven't been keeping up as closely as with health care, so is Kennedy just striking down section 5 or is section 4 getting killed too? Scotusblog suggests there's room for an O'Connor middle of the road AA-type decision.

# ? Feb 27, 2013 18:40

The Warszawa: Jun 6, 2005; "If they're shooting at you, you know you're doing something right."

Adar posted:

The thing that soured me on con law and subsequently the 'school' part of law school was the insistence of everyone involved - professors, textbooks, other students - that interpretative theories of the last 20 or so years of Supreme Court opinions on any topic that did not hinge on the political opinions of the respective justices were valid, in spite of the last 20 years of recorded history*. I've seen nothing since I graduated that would dispute this.

*possibly 200

Anyway, I haven't been keeping up as closely as with health care, so is Kennedy just striking down section 5 or is section 4 getting killed too? Scotusblog suggests there's room for an O'Connor middle of the road AA-type decision.

I could see them striking down the coverage formula, which would then leave Section 5 unenforceable without a replacement, which we're just not going to get from this House of Representatives.

SCOTUSBlog's recap of the argument is now up.

"SCOTUSBlog posted:

Sometimes, in Supreme Court argument, a single phrase can speak volumes. Justice Anthony M. Kennedy, the one member of the Court who bore the most watching because the other eight seemed clearly to divide evenly, used the phrase �trusteeship of the United States government� as a shorthand way to describe how he views the regime set up by the Voting Rights Act of 1965 works. Of course, he meant it as a denunciation.

If Kennedy believes that there is no way to justify any longer that kind of oversight of nine states that have to do the most to obey the 1965 law, that law may well be doomed. But it also was Kennedy who left the impression that he might be willing to go along with a potential way to short-circuit the case of Shelby County v. Holder, and allow the law to survive for some time more.

The argument Wednesday in one of the most important cases of the Court�s current Term � a hearing that ran 17 minutes longer than the allotted hour � left no doubt that four of the Justices (and maybe Kennedy with them) are just as troubled as they were four years ago when they last lambasted the selective enforcement approach mandated by history�s most successful civil rights law. Equally, there was no doubt that four Justices � including the two newest members � were prepared to let Congress have its way with the 25-year extension of the law.
Naturally, that meant the potential swing vote would be held by Justice Kennedy. His heart evidently was with the sentiment that Congress�s failure to make the law�s key Section 5 reach more widely and its failure to change the Section 4 formula on which states and local governments get covered should lead the Court to strike down one or both of those provisions.

Kennedy most clearly displayed that sentiment when he put a portentous question to the federal government�s lawyer, Solicitor General Donald B. Verrilli, Jr. It was a rather peculiarly worded question, but its thrust was very clear. If Alabama wants to put up monuments to the heroes of civil rights, in order to �acknowledge the wrongs of its past,� the Justice asked, �is it better off doing it if� it�s an own independent sovereign or if it�s under the trusteeship of the United States government?�

Verrilli, who had just told Kennedy that the government does respect the system of American federalism, had no direct answer to the tougher question. He felt a need in response to repeat the claim that Congress had acted cautiously in 2006 when it reenacted the 1965 law, and took �a more prudent course, even given the federalism concerns.�

But those who had attended the Court�s last hearing on the constitutionality of the 1965 law, four years ago, could recall that Kennedy was equally disturbed then about the threat he saw to states� rights, and yet the Court concluded that case without striking down the law. It found a way to ease the burden of the law, for local governments, and left it at that.

As the new appeal, by Alabama�s Shelby County, reached the Court, there does not appear to be a ready method of avoiding the constitutional issue � provided that the Court is satisfied that Shelby County�s case is the proper one in which to reach it. And the possibility that it may not be the best test case came up early in the argument, and Kennedy, too, showed some interest in it.

Within the first minutes of the argument of the county�s lawyer, Washington attorney Bert W. Rein, Justice Sonia Sotomayor suggested that Shelby County�s record on minority voting rights had remain �pretty much� unchanged from the past. �You may be the wrong party bringing this,� she commented.

Justice Elena Kagan soon recited the current record of Alabama under existing civil rights laws, noting that the state would be the No. 1 offender in one category, and the No. 2 in another. �Under any formula that Congress could devise [for coverage under Section 5], it would capture Alabama,� Kagan said.

Rein commented in reply that the county was challenging the law as it was written, not as it would apply to any particular jurisdiction, and that Shelby County was covered only because the entire state of Alabama was.

Justice Sotomayor moved in to emphasize hers and Kagan�s point. Under the record that Congress had before it in renewing the law, Sotomayor said, the approach Congress took would be appropriate for Alabama. Rein again said that the formula of coverage is why Shelby County is covered.

These questions and comments suggested that, if Alabama and its local jurisdictions could not escape from the law no matter how Congress revised the formula to deal with ongoing discrimination, then the state and Shelby County might not be able to claim any harm from it � and thus not be in a position even to challenge it in court.

It is not surprising, of course, that the Court�s more liberal members would want to find a way to avoid an ultimate decision to strike down the historic law, and they � like everyone else in the courtroom � could sense that that was a real possibility.

But what was potentially significant was that Kennedy perked up. He noted the questions by Kagan and Sotomayor, and asked Rein: �If you would be covered under any formula, why are you injured under this one?� The lawyer said he did not agree with the premise.

Kennedy persisted, saying that Rein should deal with �the hyp0thesis� that any formula would capture Alabama. Why would Alabama have a right to complain? Rein then challenged the authority of Congress to focus on a few selective jurisdictions, like Shelby County, and not look all across the nation to see if the problem of racial bias in voting was prevalent there, too.

I can see a Kennedy opinion saying that racial bias is so widespread that a preclearance regime should have to apply to everyone, "so Congress should pass that.

# ? Feb 27, 2013 18:48

computer parts: Nov 18, 2010; Pam you better not be making pornos!

The Warszawa posted:

I can see a Kennedy opinion saying that racial bias is so widespread that a preclearance regime should have to apply to everyone, "so Congress should pass that. "

That's not a terrible idea to be honest. Probably not something you can get without going through Congress, but it would solve a lot of gerrymandering problems.

# ? Feb 27, 2013 18:57

mcmagic: Jul 1, 2004; I HAVE NO THOUGHTS A THIRD GRADER WOULD FIND WORTHWHILE BUT I REMAIN CONVINCED YOU NEED TO HEAR THEM OVER AND OVER AGAIN

Roberts thinks he bought himself enough slack with the ACA decision to go all-republican hack for at least 2 years and it's going to start with the VRA. I can't wait for whichever one of the 5 hacks writes that racial discrimination doesn't exist anymore just like when Kennedy said that money in politics doesn't cause corruption or the appearance of corruption!

# ? Feb 27, 2013 18:59

The Warszawa: Jun 6, 2005; "If they're shooting at you, you know you're doing something right."

computer parts posted:

That's not a terrible idea to be honest. Probably not something you can get without going through Congress, but it would solve a lot of gerrymandering problems.

I agree that Section 5 should apply to everyone, but the problem is it would never, ever get passed by a Republican House. It's basically just smothering the VRA with a pillow.

mcmagic posted:

Roberts thinks he bought himself enough slack with the ACA decision to go all-republican hack for at least 2 years and it's going to start with the VRA. I can't wait for whichever one of the 5 hacks writes that racial discrimination doesn't exist anymore just like when Kennedy said that money in politics doesn't cause corruption or the appearance of corruption!

See, I actually believe John Roberts is sincerely a true-believer, honest-to-God, Leave it to Beaver motherfucker on issues of racial justice and racial discrimination. He's against voting rights legislation, voluntary integration, and affirmative action - he's heard "The white Christian man is the most discriminated-against person in America" so many times he believes it.

# ? Feb 27, 2013 19:04

Direwolf: Aug 16, 2004; Fwar

I'm the editor for a guy on my law journal who wrote his law comment about this case - the basic issue is that the "bailout" has never and will never be applied to states, meaning that despite the fact that many of the covered regions have significantly higher rates of minority voter registration and turnout than the non covered regions, but thanks to the moving goalposts of the bailout provision will literally never be able to demonstrate they're complying with the act.

Not saying I necessarily agree with him, but his argument is more that the act as written doesn't give them a chance to demonstrate compliance, not that they are complying (though by several measures they have been).

# ? Feb 27, 2013 19:06

zoux: Apr 28, 2006

So how does this affect Voter ID laws in Section 5 states? Right now the DoJ can stop the implementation of such laws, so if the VRA is overturned, that just means that these laws will go into effect and then must be challenged in court?

I'm just pretty sure it's gonna get overturned and I think that's an awful thing. I'm trying to make myself feel better by rationalizing that the primary effect is that horrible anti-minority voting laws will only exist for a little bit before they are overturned by right-thinking jurists, rather than not existing at all.

# ? Feb 27, 2013 19:06

mcmagic: Jul 1, 2004; I HAVE NO THOUGHTS A THIRD GRADER WOULD FIND WORTHWHILE BUT I REMAIN CONVINCED YOU NEED TO HEAR THEM OVER AND OVER AGAIN

Scalia thinks that the VRA is a �perpetuation of racial entitlement.� Those stupid darkies and their "entitlement" of voting... How vile are these 5 hacks....

# ? Feb 27, 2013 19:10

Chamale: Jul 11, 2010; Men on the moon and men spinning around the earth and there's not no attention paid to earthly law and order.

It would be completely hideous to take down the Voting Rights Act based on the supposition that the South is no longer racist. There are racist vote suppression laws in states other than the South, so ideally the federal preclearance should be expanded. Would the Supreme Court have the power to declare that the VRA's selection is unconstitutional and expand it to cover all 50 states?

# ? Feb 27, 2013 19:11

mcmagic: Jul 1, 2004; I HAVE NO THOUGHTS A THIRD GRADER WOULD FIND WORTHWHILE BUT I REMAIN CONVINCED YOU NEED TO HEAR THEM OVER AND OVER AGAIN

Chamale posted:

It would be completely hideous to take down the Voting Rights Act based on the supposition that the South is no longer racist. There are racist vote suppression laws in states other than the South, so ideally the federal preclearance should be expanded. Would the Supreme Court have the power to declare that the VRA's selection is unconstitutional and expand it to cover all 50 states?

No congress has to do that.

# ? Feb 27, 2013 19:13

Hello Towel: Aug 9, 2010; Oh my.

I'm attending a debate about this case at my law school tomorrow. I'm really interested to listen to the arguments there.

Overturning this would just be awful. The expansion idea Chamale brought up is quite interesting, but, yeah, that can't/won't happen.

# ? Feb 27, 2013 19:19

The Warszawa: Jun 6, 2005; "If they're shooting at you, you know you're doing something right."

zoux posted:

So how does this affect Voter ID laws in Section 5 states? Right now the DoJ can stop the implementation of such laws, so if the VRA is overturned, that just means that these laws will go into effect and then must be challenged in court?

I'm just pretty sure it's gonna get overturned and I think that's an awful thing. I'm trying to make myself feel better by rationalizing that the primary effect is that horrible anti-minority voting laws will only exist for a little bit before they are overturned by right-thinking jurists, rather than not existing at all.

There would be no way to stop them from going into effect, though they could be challenged later. Of course, this is after damage is done.

Direwolf posted:

I'm the editor for a guy on my law journal who wrote his law comment about this case - the basic issue is that the "bailout" has never and will never be applied to states, meaning that despite the fact that many of the covered regions have significantly higher rates of minority voter registration and turnout than the non covered regions, but thanks to the moving goalposts of the bailout provision will literally never be able to demonstrate they're complying with the act.

Not saying I necessarily agree with him, but his argument is more that the act as written doesn't give them a chance to demonstrate compliance, not that they are complying (though by several measures they have been).

The biggest issue to bailout on a state level is that a jurisdiction seeking bailout has to show compliance on all levels. Basically Alabama couldn't seek bailout if every county BUT Shelby Country was in compliance. I'd disagree with the characterization of the bailout goalposts as moving in any direction but more permissive, though.

# ? Feb 27, 2013 19:20

Adar: Jul 27, 2001; William "J." Fillmaff in training

zoux posted:

So how does this affect Voter ID laws in Section 5 states? Right now the DoJ can stop the implementation of such laws, so if the VRA is overturned, that just means that these laws will go into effect and then must be challenged in court?

I'm just pretty sure it's gonna get overturned and I think that's an awful thing. I'm trying to make myself feel better by rationalizing that the primary effect is that horrible anti-minority voting laws will only exist for a little bit before they are overturned by right-thinking jurists, rather than not existing at all.

It's not that anybody is going to pass anything overt. Alabama's not going to go hog wild on the NOBAMA Black Disenfranchisement Act 2013. But since immigrants are one of the many boogeymen of the month, many to most of the covered jurisdictions will immediately be passing voter ID laws, and the burden will shift to the government to prove disenfranchisement was the intent or has already/will take place rather than the other way around. In addition, gerrymandering is gonna get a lot worse.

# ? Feb 27, 2013 19:23

Chamale: Jul 11, 2010; Men on the moon and men spinning around the earth and there's not no attention paid to earthly law and order.

mcmagic posted:

No congress has to do that.

I suppose we'd best hope the Supreme Court doesn't remove anything. I would not trust the House to pass anything at this point, not even a renewed Voting Rights Act. I can just imagine Paul Ryan talking about the BIG GOVERNMENT intervention represented by expanding protections for minority voters.

Chamale fucked around with this message at Feb 27, 2013 around 19:48

# ? Feb 27, 2013 19:25

Red_Mage: Jul 23, 2007; I should probably keep to posting about grognards in TGD, because when I discuss actual real-world politics with people who know what they're talking about, it becomes clear that I have trouble seeing things without a ruleset and character sheets.

zoux posted:

I'm just pretty sure it's gonna get overturned and I think that's an awful thing. I'm trying to make myself feel better by rationalizing that the primary effect is that horrible anti-minority voting laws will only exist for a little bit before they are overturned by right-thinking jurists, rather than not existing at all.

Pretty much this. As long as it is only section 5 that gets overturned, its not the end of the world. And as mcmagic pointed out right above me, Congress could reinstate section 5 and apply it to all 50 states and not face the same challenge.

The Warszawa posted:

The irony of a bunch of rich white guys on the Supreme loving Court talking about how times have changed and racism isn't an issue in the South anymore is not lost on me.

I would like to point out that the Justice who has called for section 5 to go away for the longest is not in fact a rich white guy. It doesn't make him right, but you should be a little considerate.

Thomas doesn't like speaking or bench questioning, so he is easy to forget about in articles about ongoing cases, but he has been opposed to section 5 on 15th amendment grounds (I don't quite get his logic there, but then again thats why he is a justice and I am not) for some time now.

# ? Feb 27, 2013 19:25

mcmagic: Jul 1, 2004; I HAVE NO THOUGHTS A THIRD GRADER WOULD FIND WORTHWHILE BUT I REMAIN CONVINCED YOU NEED TO HEAR THEM OVER AND OVER AGAIN

Chamale posted:

I suppose we'd best hope the Supreme Court doesn't remove anything. I would trust the House to pass anything at this point, not even a renewed Voting Rights Act. I can just imagine Paul Ryan talking about the BIG GOVERNMENT intervention represented by expanding protections for minority voters.

The VRA will die the next time it's up for re-authorization but the court is going to let the GOP kill it without really getting their hands dirty.

# ? Feb 27, 2013 19:28

Acrophyte: Sep 5, 2012

This isn't the banality of evil. This is evil. Pure, unrestrained evil. I still cannot accept that this challenge has made it this far.

Scalia et al. should be forced to wear Bruce Willis' sandwich board from Die Hard With a Vengeance and just get it over with.

# ? Feb 27, 2013 19:29

The Warszawa: Jun 6, 2005; "If they're shooting at you, you know you're doing something right."

Red_Mage posted:

I would like to point out that the Justice who has called for section 5 to go away for the longest is not in fact a rich white guy. It doesn't make him right, but you should be a little considerate.

Thomas doesn't like speaking or bench questioning, so he is easy to forget about in articles about ongoing cases, but he has been opposed to section 5 on 15th amendment grounds (I don't quite get his logic there, but then again thats why he is a justice and I am not) for some time now.

Yeah, but Thomas's grounds are about constitutional power versus demonstrable efforts - that an extreme measure requires extreme demonstrable harm, not some deathbed conversion of white racists. Chief Justice Roberts literally wrote "Things have changed in the South." Hence the whole second half what you quoted. It's about the reasoning of the rich white guys. Thomas is talking about threshold power for the original enactment, Roberts is talking about the nature of the South, and Kennedy is talking about the dignity of the states.

The Warszawa fucked around with this message at Feb 27, 2013 around 19:38

# ? Feb 27, 2013 19:30

eviltastic: Feb 8, 2004; He pities you for your sins, but penance must be done.

Chamale posted:

It would be completely hideous to take down the Voting Rights Act based on the supposition that the South is no longer racist.

Not to detract from your main point (racism is an issue both in and outside the South), but to emphasize the silliness of this: Alabama, the state in question here, is the state that still has racial segregation measures in its goddamn constitution.

# ? Feb 27, 2013 19:31

mcmagic: Jul 1, 2004; I HAVE NO THOUGHTS A THIRD GRADER WOULD FIND WORTHWHILE BUT I REMAIN CONVINCED YOU NEED TO HEAR THEM OVER AND OVER AGAIN

And lets all remember that Barack Obama's answer to this is a famous Washington commission featuring George W Bush's personal lawyer!

# ? Feb 27, 2013 19:31

The Warszawa: Jun 6, 2005; "If they're shooting at you, you know you're doing something right."

mcmagic posted:

And lets all remember that Barack Obama's answer to this is a famous Washington commission featuring George W Bush's personal lawyer!

Ben Ginsberg is actually a legitimate expert on voting rights law, even if you disagree with him. He's pretty much the best Republican you're going to get for a voting rights commission (he was also campaign counsel, not GWB's personal lawyer).

# ? Feb 27, 2013 19:32

mcmagic: Jul 1, 2004; I HAVE NO THOUGHTS A THIRD GRADER WOULD FIND WORTHWHILE BUT I REMAIN CONVINCED YOU NEED TO HEAR THEM OVER AND OVER AGAIN

The Warszawa posted:

Ben Ginsberg is actually a legitimate expert on voting rights law, even if you disagree with him.

He's an expert in republican voter suppression and intimidation.

# ? Feb 27, 2013 19:33

Red_Mage: Jul 23, 2007; I should probably keep to posting about grognards in TGD, because when I discuss actual real-world politics with people who know what they're talking about, it becomes clear that I have trouble seeing things without a ruleset and character sheets.

eviltastic posted:

Not to detract from your main point (racism is an issue both in and outside the South), but to emphasize the silliness of this: Alabama, the state in question here, is the state that still has racial segregation measures in its goddamn constitution.

Alabama has everything in its goddamn constitution. Because they use it like other states use code of law it has almost every governmental law in it, but unlike state law, the racist poo poo isn't struck when they pass something that overturns it, or when the supreme court overturns it. They literally cannot remove the racist poo poo from their constitution without drafting an entirely new one (which would be their 7th).

Alabama is a racist shithole, with a constitution that is a punchline to a political science joke.

# ? Feb 27, 2013 19:37

nachos: Jun 27, 2004; Wario Chalmers! WAAAAAAAAAAAAA!

mcmagic posted:

He's an expert in republican voter suppression and intimidation.

I don't see anything wrong with hiring someone who knows exactly how the game is played in order to stop it

# ? Feb 27, 2013 19:41

mcmagic: Jul 1, 2004; I HAVE NO THOUGHTS A THIRD GRADER WOULD FIND WORTHWHILE BUT I REMAIN CONVINCED YOU NEED TO HEAR THEM OVER AND OVER AGAIN

nachos posted:

I don't see anything wrong with hiring someone who knows exactly how the game is played in order to stop it

Because why would you think he wants to stop it? It would the death of his party electorally.

# ? Feb 27, 2013 19:41

The Warszawa: Jun 6, 2005; "If they're shooting at you, you know you're doing something right."

mcmagic posted:

Because why would you think he wants to stop it? It would the death of his party electorally.

Getting Ginsberg on the commission gives the commission "bipartisan legitimacy," and since commissions basically exist to set the agenda for remedies (see, e.g., Simpson-Bowles) not giving the other side an excuse to say "JUST A BUNCH OF HOLLYWOOD/NEW HAVEN LIBERALS" is helpful, if not dispositive.

Also because Ginsberg is legitimately interested in voting rights law, even if he's a Republican, so let's not assume he's some devil-horned psychopath just because he's a member of the other party.

# ? Feb 27, 2013 19:44

evilweasel: Aug 24, 2002; Every soup ladled to the hungry, every blanket draped over to the cold signifies, in the final sense, a theft from my gigantic paycheck.

What's somewhat infuriating about this case is the VRA implements the 15th Amendment, which was written explicitly to shove the Supreme Court out of the way and block them from doing anything like this. Something that's often forgotten is the Civil Rights Amendments are an explicit grant of power to Congress, to pass legislation to enforce them (rather than merely relying on the courts to strike down laws that violated them).

The Supreme Court has no business determining what is or is not an appropriate exercise of Congress's power under the 15th, once it's settled that it's an exercise of power under the 15th. It was written in response to the Dred Scott court, and written to allow Congress to have the final word on what measures should be taken to enforce the ban on racial discrimination with voting. I don't know to what extent this argument was actually made to the Supreme Court (it is, generally, bad tactics to agressively tell a judge what they can and can't do so the defenders of the law may not have done this). But the reality is, the 15th wrote in Congressional superiority to the Supreme Court when it comes to what's appropriate and what's not. The Supreme Court has no legitimate power to strike down a law Congress passes as inappropriate, so long as it's actually addressing racial discrimination in voting (or, under later amendments, gender & age discrimination). The Constitution says Scalia' and Roberts' dumb opinions on what's appropriate are irrelevant.

# ? Feb 27, 2013 19:47

nachos: Jun 27, 2004; Wario Chalmers! WAAAAAAAAAAAAA!

mcmagic posted:

Because why would you think he wants to stop it? It would the death of his party electorally.

If Ginsberg's ends are as simple as that you could also apply the same standard to Obama and ask why he would hire a lawyer that would hurt his party electorally.

# ? Feb 27, 2013 19:49

Chamale: Jul 11, 2010; Men on the moon and men spinning around the earth and there's not no attention paid to earthly law and order.

evilweasel posted:

What's somewhat infuriating about this case is the VRA implements the 15th Amendment, which was written explicitly to shove the Supreme Court out of the way and block them from doing anything like this. Something that's often forgotten is the Civil Rights Amendments are an explicit grant of power to Congress, to pass legislation to enforce them (rather than merely relying on the courts to strike down laws that violated them).

The Supreme Court has no business determining what is or is not an appropriate exercise of Congress's power under the 15th, once it's settled that it's an exercise of power under the 15th. It was written in response to the Dred Scott court, and written to allow Congress to have the final word on what measures should be taken to enforce the ban on racial discrimination with voting. I don't know to what extent this argument was actually made to the Supreme Court (it is, generally, bad tactics to agressively tell a judge what they can and can't do so the defenders of the law may not have done this). But the reality is, the 15th wrote in Congressional superiority to the Supreme Court when it comes to what's appropriate and what's not. The Supreme Court has no legitimate power to strike down a law Congress passes as inappropriate, so long as it's actually addressing racial discrimination in voting (or, under later amendments, gender & age discrimination). The Constitution says Scalia' and Roberts' dumb opinions on what's appropriate are irrelevant.

In this case, what would occur if the Supreme Court did strike down parts of the VRA? If there's a conflict over the power to change these laws, I can only imagine it would lead to more lawsuits and I'm not sure how SCOTUS handles a case dealing with its own powers.

# ? Feb 27, 2013 19:51

The Warszawa: Jun 6, 2005; "If they're shooting at you, you know you're doing something right."

Chamale posted:

In this case, what would occur if the Supreme Court did strike down parts of the VRA? If there's a conflict over the power to change these laws, I can only imagine it would lead to more lawsuits and I'm not sure how SCOTUS handles a case dealing with its own powers.

It would pretty much assert the authority to decide them (and then assert the authority to strike down parts of the VRA).

# ? Feb 27, 2013 19:52

Teddybear: May 16, 2009; The Corgiest Teddybear

mcmagic posted:

Because why would you think he wants to stop it? It would the death of his party electorally.

Might want to give Obama the benefit of the doubt on this pick. It's drilled into you while training, while practicing, and basically while alive that you zealously defend your client's interest, even if you loathe what that entails. Likely Obama knows more about Ginsburg's motives on this than we do.

# ? Feb 27, 2013 19:53

evilweasel: Aug 24, 2002; Every soup ladled to the hungry, every blanket draped over to the cold signifies, in the final sense, a theft from my gigantic paycheck.

Chamale posted:

In this case, what would occur if the Supreme Court did strike down parts of the VRA? If there's a conflict over the power to change these laws, I can only imagine it would lead to more lawsuits and I'm not sure how SCOTUS handles a case dealing with its own powers.

In practice, the Supreme Court will win, there's no real contest in who would win that political fight.

# ? Feb 27, 2013 19:53

Teddybear: May 16, 2009; The Corgiest Teddybear

evilweasel posted:

In practice, the Supreme Court will win, there's no real contest in who would win that political fight.

Yeah, things go into a class five shitstorm when branches start ignoring SCOTUS. The most famous example was the Trail of Tears.

# ? Feb 27, 2013 19:56

Y-Hat: Feb 10, 2007; Birdemic 2: Koholint Island

Considering that non-Section 5 states have recently passed restrictive voting measures (Ohio, Wisconsin, and others), I would argue that the VRA doesn't go far enough and that it should have punitive measures for any state that tries to make it harder to vote. In theory, striking down Section 5 would mean that Congress could make it that way. Of course, when the inevitable 5-to-4 decision repealing Section 5 is passed down, they'll essentially punt it to a Congress that isn't even open to respecting existing law that is contrary to Republican doctrine, let alone one that is open to expanding federal protections. Don't think that the far-right five don't know this.

I'd argue that the ACA ruling was possibly a start of Roberts doing a leftward shift in the style of John Paul Stevens, but this business-as-usual 5-4 decision kinda puts the lie to that.

# ? Feb 27, 2013 20:30

thefncrow: Mar 14, 2001

Y-Hat posted:

Considering that non-Section 5 states have recently passed restrictive voting measures (Ohio, Wisconsin, and others), I would argue that the VRA doesn't go far enough and that it should have punitive measures for any state that tries to make it harder to vote. In theory, striking down Section 5 would mean that Congress could make it that way. Of course, when the inevitable 5-to-4 decision repealing Section 5 is passed down, they'll essentially punt it to a Congress that isn't even open to respecting existing law that is contrary to Republican doctrine, let alone one that is open to expanding federal protections. Don't think that the far-right five don't know this.

The VRA already contains a prohibition against any state implementing any practice or procedure that has a discriminatory result, and that portion is permanent and not subject to a renewal every <x> years.

The difference between enforcement in a state like Ohio and Alabama is that Alabama meets the conditions under Section 4 that makes them subject to federal pre-clearance of their voting policies and procedures. That makes it easier for the federal government to stop the rule from ever taking effect in the first place, because they just deny pre-clearance, whereas states not meeting the Section 4 requirements have to have their laws challenged in court after the fact (barring an injunction).

# ? Feb 27, 2013 20:47

mcmagic: Jul 1, 2004; I HAVE NO THOUGHTS A THIRD GRADER WOULD FIND WORTHWHILE BUT I REMAIN CONVINCED YOU NEED TO HEAR THEM OVER AND OVER AGAIN

Y-Hat posted:

Considering that non-Section 5 states have recently passed restrictive voting measures (Ohio, Wisconsin, and others), I would argue that the VRA doesn't go far enough and that it should have punitive measures for any state that tries to make it harder to vote. In theory, striking down Section 5 would mean that Congress could make it that way. Of course, when the inevitable 5-to-4 decision repealing Section 5 is passed down, they'll essentially punt it to a Congress that isn't even open to respecting existing law that is contrary to Republican doctrine, let alone one that is open to expanding federal protections. Don't think that the far-right five don't know this.

I'd argue that the ACA ruling was possibly a start of Roberts doing a leftward shift in the style of John Paul Stevens, but this business-as-usual 5-4 decision kinda puts the lie to that.

Remember when people tried to say Kennedy was different from the other republican hacks because he was a "libertarian." lol

(USER WAS PUT ON PROBATION FOR THIS POST)

# ? Feb 27, 2013 20:50

Amused to Death: Aug 10, 2009; google "The Night Witches", and prepare for

A few weeks ago someone was posting a Voting Rights Act mini version of the Ron Paul bomb, highlighting serious racism problems that still exist in some areas(in this case the areas covered by the VRA) politically. Does anyone have it saved?

# ? Feb 27, 2013 21:06

Centurium: Aug 17, 2009

Teddybear posted:

Yeah, things go into a class five shitstorm when branches start ignoring SCOTUS. The most famous example was the Trail of Tears.

I've always wanted to write a historical fantasy wherein John Marshall takes Jackson up on his offer to enforce his decision... one evil bastard at a time. Kind of like the Punisher, but with a lot of terrible one liners about checks and balances.

Anyway, section 5 has a fascinating legacy that highlights the deeply dissonant understanding of racism in America in modern times. On the one hand, you have barely blushing political thinking out of Scalia. At the same time, Roberts enunciates a terribly naive things are getting better narrative that studiously ignores the reality around the United States by keeping its eyes firmly latched on a brutal past. It's like a microcosm!

Oddly enough, I actually agree with a lot of the things Kennedy is saying. I just take the other conclusion. The 'yeah, it's totally justified because of terrible history 50 years ago' viewpoint is, in its own way, just as blinding as Robert's narrative on history. 'Racism is a Thing that happens in the South' is as paralyzing today as it was to the urban focused civil rights organizations in the 60's. In fact, its the same bifurcation of narrative: over there, a black man demanding justice is a hero and a martyr. Over the train tracks, a black man demanding justice is a dangerous criminal. That's why we have to be so careful to defend against 'voter fraud.'

I guess I think Kennedy makes an important point when he asks why we give Michigan and Ohio a more sovereign dignity than Georgia or Alabama. Not that we need to be giving the great State of Georgia any more dignity. But maybe we ought to assume that when officials in Ohio draw a district, they deserve no more trust than anyone else.

5 has been a great thing. It engenders and defends minority political power in Atlanta against both more sinister racism and more banal political ambitions. But its a little odd to me to claim that minority communities in New England don't deserve the same sort of protection and political voice because Georgia is more racist than Massachusetts.

Edit: I forgot my legal question:

Is there any ground to stand on to argue that, if the disparate treatment lacks a sufficient basis (and isn't THAT ironic) that the actual provisions are well within Congresses power? If that's true, it seems as though the Court might interpret the law most consistently with respect to the 15th Amendment and Congressional intent by deciding the less vigorous defense of rights has the weaker justification.

The Left Bench pulls a brilliant flanking maneuver by voting down the unequal treatment among states 9-0. Then they get Kennedy to be the swing that strikes down not having justice department scrutiny. I mean, hey, there's plenty of evidence that non-covered jurisdictions pose a serious threat to people's exercise of political speech. I hear he likes that kind of thing. If nothing else, you get to write the best dissent ever.

Centurium fucked around with this message at Feb 27, 2013 around 22:19

# ? Feb 27, 2013 22:05

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# ? May 21, 2013 17:51

The Insect Court: Nov 22, 2012

mcmagic posted:

Roberts thinks he bought himself enough slack with the ACA decision to go all-republican hack for at least 2 years and it's going to start with the VRA. I can't wait for whichever one of the 5 hacks writes that racial discrimination doesn't exist anymore just like when Kennedy said that money in politics doesn't cause corruption or the appearance of corruption!

Roberts has always been a reliable movement conservative vote. It's just that striking down the ACA was undeniably batshit crazy from a jurisprudential standpoint, and it didn't really serve Republican Party needs. It was driven mostly by inchoate rage from the base, not strategic pressure from the GOP elite. Gutting the VRA, on the other hand, is something that Republican state legislators have to be salivating over, it'll let them redouble their efforts to disenfranchise minorities.

thefncrow posted:

The VRA already contains a prohibition against any state implementing any practice or procedure that has a discriminatory result, and that portion is permanent and not subject to a renewal every <x> years.

The difference between enforcement in a state like Ohio and Alabama is that Alabama meets the conditions under Section 4 that makes them subject to federal pre-clearance of their voting policies and procedures. That makes it easier for the federal government to stop the rule from ever taking effect in the first place, because they just deny pre-clearance, whereas states not meeting the Section 4 requirements have to have their laws challenged in court after the fact (barring an injunction).

IANAL, but I'm fairly certain it's going to be far more difficult to show harm arising from a new voting law in the court compared to having the DoJ block it. Especially with 11th hour changes to voting laws in swing states as the elections approach, which we already saw in 2012.

The Insect Court fucked around with this message at Feb 28, 2013 around 01:11

# ? Feb 28, 2013 01:09

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