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Supreme Court Strikes Down Section 4 Of Voting Rights Act

constitution-preamble-gavel

Today, in what is likely to be seen as one of the most consequential decisions of this term if not the entire Roberts Court, the Supreme Court ruled that the formula established by Congress in Section Four of the Voting Rights Act to determine which jurisdictions must have changes to their voting laws approved by either the Department of Justice or,barring that, a panel of three Federal District Court Judges, is unconstitutional largely because the formula is outdated:

WASHINGTON — The Supreme Court on Tuesday effectively struck down the heart of the Voting Rights Act of 1965 by a 5-to-4 vote, ruling that Congress had not provided adequate justification for subjecting nine states, mostly in the South, to federal oversight.

“In 1965, the states could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics,” Chief Justice John G. Roberts Jr. wrote for the majority. “Congress based its coverage formula on that distinction. Today the nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.”

Chief Justice Roberts said that Congress remained free to try to impose federal oversight on states where voting rights were at risk, but must do so based on contemporary data. When the law was last renewed, in 2006, Congress relied on data from decades before. The chances that the current Congress could reach agreement on where federal oversight is required are small, most analysts say.

Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined the majority opinion. Justice Ruth Bader Ginsburg dissented, joined by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

The majority held that the coverage formula in Section 4 of the Voting Rights Act, originally passed in 1965 and most recently updated by Congress in 1975, was unconstitutional. The section determines which states must receive preclearance from the federal authorities.

The court did not strike down Section 5, which sets out the pre-clearance requirement itself. But without Section 4, which determines which states are covered, Section 5 is without significance — unless Congress chooses to pass a new bill for determining which states would be covered.

Lyle Denniston breaks it down:

Chief Justice John G. Roberts, Jr., who wrote the Court’s main opinion in 2009 suggesting strongly that the 1965 law was vulnerable because it was no longer keyed to current discrimination experience, again was the author of the main opinion Tuesday.  It was joined in full by Justices Samuel A. Alito, Jr., Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas.  Besides joining that opinion, Thomas wrote a separate opinion saying that he would also strike down the Section 5, pre-clearance provision, based on the same arguments that Roberts had used to invalidate the coverage formula in Section 4.

Justice Ruth Bader Ginsburg, in a strongly worded dissent that she recited from for ten minutes during the Court session, argued that “the Court errs egregiously by overriding Congress’ decision” in 2006 to extend the law for another twenty-five years (a renewal that was enacted without updating the coverage formula).  The dissenting opinion was joined by Justices Stephen G. Breyer, Elena Kagan, and Sonia Sotomayor.

The Chief Justice recalled in the main opinion that the Court had voiced constitutional worries about the 1965 law four years ago, and then commented: “Congress could have updated the coverage formula at that time, but did not do so.”  That “failure to act,” Roberts went on, “leaves us today with no choice” but to declare Section 4 unconstitutional. “The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance [under Section 5].”

While the opinion did not judge Section 5 itself, as this lawsuit had urged it to do, the language of the Roberts opinion in condemning the 1965-s obligations on covered jurisdictions was not much of an endorsement of that provision’s validity.   But it appeared that, after an extensive recital of constitutional grievances about the law’s main provisions, the Chief Justice — in order to hold together all of the five-Justice majority — narrowed the final focus to the validity of the Section 4 coverage formula.

If Congress can be persuaded, against the political odds, to craft a new formula, the Roberts opinion contained a strong cautionary note.  The Fifteenth Amendment, upon which federal bans on race bias in voting are based, “is not designed to punish for the past; its purpose is to ensure a better future,” it said.

Should Congress try again on defining a coverage requirement, the opinion declared, “Congress must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions.  It cannot rely simply on the past.   We made that clear [in 2009], and we make it clear again today.”

On some level, this is not entirely surprising. Four years ago, in  Northwest Austin Municipal Utility District Number One v. Holder, the Court had expressed deep skepticism about the pre-clearance formula in Section Four of the VRA from a Constitutional point of view. The Court declined, however, to strike the act down at that time, instead choosing to give Congress the opportunity to address those concerns. When the Shelby Country case came before the Court and Congress, of course, had not taken any real steps to address the concerns raised by the Northwest Austin case, it was apparent from the oral argument that this same skepticism remained, and that it was shared by a majority of the Court in the form of the Chief Justice along with Justices Scalia, Kennedy, Thomas, and Alito. For Court watchers, then, there’s not really anything surprising in the outcome of this case.

The core of the Court’s reasoning can be found in this part of Roberts’ argument:

Coverage today is based on decades-old data and eradicated practices. The formula captures States by referenceto literacy tests and low voter registration and turnout inthe 1960s and early 1970s. But such tests have been banned nationwide for over 40 years. §6, 84 Stat. 315; §102, 89 Stat. 400. And voter registration and turnout numbers in the covered States have risen dramatically in the years since. H. R. Rep. No. 109-478, at 12. Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula.See, e.g., Katzenbach, supra, at 313, 329-330. There is no longer such a disparity.
In 1965, the States could be divided into two groups:those with a recent history of voting tests and low voterregistration and turnout, and those without those characteristics. Congress based its coverage formula on thatdistinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat itas if it were.

(…)

In defending the coverage formula, the Government, the intervenors, and the dissent also rely heavily on data fromt he record that they claim justify disparate coverage. Congress compiled thousands of pages of evidence before  reauthorizing the Voting Rights Act. The court below and the parties have debated what that record shows—they have gone back and forth about whether to compare covered to noncovered jurisdictions as blocks, how to disaggregate the data State by State, how to weigh §2 cases as evidence of ongoing discrimination, and whether to consider evidence not before Congress, among other issues. Compare, e.g., 679 F. 3d, at 873-883 (case below), with id., at 889-902 (Williams, J., dissenting). Regardless of how to look at the record, however, no one can fairly saythat it shows anything approaching the “pervasive,” “flagrant,” “widespread,” and “rampant” discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at thattime. Katzenbach, supra, at 308, 315, 331; Northwest Austin, 557 U. S., at 201.

But a more fundamental problem remains: Congress did not use the record it compiled to shape a coverage formula grounded in current conditions. It instead reenacted a formula based on 40-year-old facts having no logical relation to the present day. The dissent relies on “secondgeneration barriers,” which are not impediments to the casting of ballots, but rather electoral arrangements that affect the weight of minority votes. That does not cure the problem. Viewing the preclearance requirements as targeting such efforts simply highlights the irrationality of continued reliance on the §4 coverage formula, which is based on voting tests and access to the ballot, not vote dilution. We cannot pretend that we are reviewing an updated statute, or try our hand at updating the statute ourselves, based on the new record compiled by Congress.Contrary to the dissent’s contention, see post, at 23, we are not ignoring the record; we are simply recognizing that it played no role in shaping the statutory formula before us today.

There is no valid reason to insulate the coverage formula from review merely because it was previously enacted 40 years ago. If Congress had started from scratch in 2006, it plainly could not have enacted the present coverage formula. It would have been irrational for Congress to distinguish between States in such a fundamental way based on 40-year-old data, when today’s statistics tell an entirely different story. And it would have been irrational to base coverage on the use of voting tests 40 years ago, when such tests have been illegal since that time. But that is exactly what Congress has done.

Striking down an Act of Congress “is the gravest and most delicate duty that this Court is called on to perform.” Blodgett v. Holden, 275 U. S. 142, 148 (1927) (Holmes, J., concurring). We do not do so lightly. That is why, in 2009, we took care to avoid ruling on the constitutionality of the Voting Rights Act when asked to do so, and instead resolved the case then before us on statutory grounds. But in issuing that decision, we expressed our broader concerns about the constitutionality of the Act. Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare §4(b) unconstitutional. The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance.

Both the Majority and the Dissent in Shelby County concede what I think is a vitally important point, namely that the pre-clearance formula set forth in Section 4 of the Act, and enforced by Section 5 is an unusual provision of the American law. Ordinarily, local and state governments are free to enact laws regarding the operation of their voting laws, or any other subject for that matter, without having to seek permission from the Justice Department or a specially selected Federal Court. In 1965, though, Congress made the determination that, because of decades of racial discrimination in voting, a number of states and counties, mostly in the South, would have to seek permission to make changes to their voting laws in order to ensure that those changes would not have a disproportionate impact on the racial minorities that had been discriminated against in the past. The constitutionality of this provision of the Voting Rights Act was upheld a year later by the Supreme Court in Katzenbach v. Morgan. Originally, this part of the law had a five year time limit, but it had been extended over time by Congress, most recently in 2006 when it was extended for another 25 years. On each of these occasions, though, Congress merely relied upon the same data that had been used to create the original pre-certification formula in 1965 rather than engaging in any kind of examination of the extent to which circumstances may have changed in the jurisdictions that were placed on the pre-certification list.

On some level, it strikes me that the Court is correct to point out the problem with this type of legislating. As was noted in the Northwest Austin case, the pre-certification requirements impose significant limitations on federalism and the concept that states and localities are sovereign entities in their own right within the spheres of control that the Constitution gives them. If Congress is going to intrude in those areas, it ought to base that intrusion on data that is more current that something that was drawn up nearly 50 years ago. To deny that circumstances have changed in many of the jurisdictions that were originally put on the pre-clearance list is to deny reality. Louisiana has elected an Indian-American Governor. South Carolina has elected a female Indian-American Governor. Virginia has had an African-American Governor. At lower levels, minorities and women have been elected to a wide variety of offices in nearly all of these states. And, of course, the nation as a whole has elected an African-American President twice in a row and, if the polls are two believed, stands a good chance of electing a female President in 2016. This isn’t to say that there isn’t racial discrimination still at play in these places, but to pretend that the situation on the ground is the same as it was in 1965 is to say that we’ve made absolutely no progress at all in race relations in this country is to quite simply deny reality.

This isn’t the end of the road for the Voting Rights Act, of course. The majority of the act remains in place, and even the enforcement provisions of Section 5 are still available to Congress. The Justice Department still has the authority to sue individual jurisdictions for practices it contends are discriminatory and, under Section 3 of the Act, it can petition the Courts, to add additional jurisdiction to the pre-certification requirements of Section 5. What the Court has said today, though, is that Congress must base  its legislating on something more certain than reliance on data that is nearly a half a century old. There’s nothing stopping Congress from taking this issue up again, conducting an investigation about racial discrimination in voting, establishing a record, and drafting a new formula. Now, admittedly, given the current state of Congress, that’s not entirely likely. However, it isn’t the job of the Court to hold back on its decisions because it doesn’t think Congress will act in a timely manner. That’s a question for the voters to deal with.

The immediate reaction to the ruling is about what you’d expect. One the right, people like Kevin Drum are lamenting this as good news for the GOP in 2016 and beyond, while Andrew Cohen is absurdly comparing this decision to Dred Scott and Plessy v. Ferguson, a comparison that is absurd to anyone who actually understands what those cases said and the historical impact that they had. On the right, the support for the Court’s decision is at a turn unsurprising and, in its content, not entirely uninteresting as a result of its unsurprising nature. The best commentary I’ve seen so far comes from Richard Pildes, one of the several law professors writing pieces on this decision over at SCOTUSBlog, who says this:

I have called the Voting Rights Act of 1965 (VRA) a “sacred symbol” of American democracy.  For that reason, the Supreme Court’s momentous decision holding unconstitutional a part of the Act – Section 4, for short — that had continued to apply, nearly fifty years later, uniquely to the South, is itself laden with deep symbolic meaning.  But what is that meaning?

In truth, the decision will express such radically different meanings to different people that we will not be able to forge common ground regarding even the threshold question of what the decision is “about.”  Starting from such irreconcilable symbolic places, any discussion of the actual opinions themselves will be almost beside the point.

To those who will be distraught, outraged, or fearful, the essential question at stake in the Court’s decision – and in the continuing vitality of Section 4 — is whether we believe racial discrimination in voting still exists in the South.  The question being framed this way, the Court’s decision today will appear to be, at best, a denial of reality and a reflection of a naïve “post-racial” view that in the Obama era, racial discrimination in voting has ended.   Justice Sotomayor, at oral argument, perfectly reflected this perspective on what the decision represents when she posed this pointed question to the VRA’s challengers:   “Do you think that racial discrimination in voting has ended, that there is none anywhere?”  The answer to thatquestion must be no.  From this vantage point, then, as long as racial discrimination in voting still does take place at all in the South, Section 4 of the VRA – the part the Court invalidated – remains not just justifiable, but essential.

(…)

Yet to others, including the Court’s pivotal actor, Justice Kennedy, the essential question at stake is whether our political system is frozen in place on issues concerning race.  Do our political institutions and culture have the capacity to recognize that dramatic changes at the intersection of race and voting have taken place over recent decades?  Section 4 was created in 1965 as a short-term measure for five years; in initially upholding that system, the Court called it “an uncommon exercise of congressional power” justified by the “exceptional circumstances” of the massive disfranchisement of black voters (and many poor whites) that existed when the VRA was enacted.  In 1970, Congress extended this system for another five years; in 1975, for another eight; and in 1982, for twenty-five more years.   Then, in 2006, in the provision the Court struck down, Congress re-authorized this system for another twenty-five years, until 2031.  Thus we moved from a five-year regime in 1965 for exceptional circumstances to a sixty-six-year regime that continues to single out nine states (and fifty-three other counties) for unique federal control.

But of even more symbolic significance, from this perspective:  these areas all became covered because of their voting practices in 1964 or, at the latest, 1975 – nearly forty years ago.  And these are the same areas, and nearly the only areas, that have remained covered ever since.

(…)

From this vantage point, the question the case was “about,” then, is this:  how can Congress act as if nothing significant enough has changed in the last forty years to justify any meaningful change at all in Section 4?  Even if areas of discriminatory voting practices remain, surely they cannot mirror so exactly the areas of which this was true forty or fifty years ago.

What this means, Pildes goes on to note, is that this issue now becomes yet another arrow in the quiver that is used in the daily political battles that have become life in contemporary America. How you view what it means will depend largely on which side of that battle you are on.

In the end, I stand by my conclusion that the Court got this decision mostly right. Where it takes us from there is a completely different question, but I’m sure we’ll be writing and talking about it for years to come.

Here’s the opinion:

Shelby County, Alabama v. Holder by dmataconis

UPDATE: See also James Joyner’s take, “SCOTUS: ‘Can’t Rely on Past’ for Voting Rights Act

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. EddieInCA says:

    Somewhere Paula Deen is smiling…

    Like or Dislike: Thumb up 14 Thumb down 3

  2. Rob in CT says:

    My problem is less with the idea that the Act needs modernization (look at the crap the PA GOP tried to pull!) than with the reality that Congress, as presently constituted and as likely constituted for some time to come, will do no such thing.

    Highly-rated. Helpful or Unhelpful: Thumb up 19 Thumb down 0

  3. EddieInCA says:

    Here come ALL sorts of Voter ID laws.

    Like or Dislike: Thumb up 14 Thumb down 0

  4. NickTamere says:

    Anyone using the phrase “uniquely to the South” in regards to the law is woefully ignorant regarding the facts; there were several areas in the North (and out West as well) that fell under “pre-clearance” but they were able to demonstrate that they had made progress and could go 10 years without trying to screw over voters (minorities) and were removed from the list. Several areas in New England were able to do it. Did the areas of the South affected by pre-clearance even attempt to get off the list? And the first thing they do when the decision is handed down is attempt to pass the same disenfranchising laws that were slapped down previously?

    What’s the libertarian position on stealing votes?

    Highly-rated. Helpful or Unhelpful: Thumb up 36 Thumb down 0

  5. Moosebreath says:

    Given the massive attempts to undermine voting rights in the last few years by passing overtly political limitations on voting (from Voter ID laws to changes in early voting), the vast majority of which having clear intent to reduce majority voting, I would normally be stunned by this clueless decision.

    Except that it helps Republicans, so of course the Republicans on the Court voted for it.

    Already states are lining up to pass more voting restrictions.

    Highly-rated. Helpful or Unhelpful: Thumb up 22 Thumb down 1

  6. Davebo says:

    In the end, I stand by my conclusion that the Court got this decision mostly right. Where it takes us from there is a completely different question, but I’m sure we’ll be writing and talking about it for years to come.

    Of course you will because we all know Congressional Republicans will ensure absolutely nothing the Court suggested gets even a fair hearing.

    Like or Dislike: Thumb up 14 Thumb down 1

  7. Moosebreath says:

    @Moosebreath:

    “majority voting” should have been ‘minority voting”.

    Like or Dislike: Thumb up 2 Thumb down 0

  8. Lit3Bolt says:

    Suppressing votes is good because something something states’ rights.

    Also, I know we treat the SCOTUS like the American version of the College of Cardinals, but since when can the Court just simply arbitrarily usurp Congressional Authority for making laws in regards to voting?

    The Roberts’ court reasoning is specious from the first sentence. I guess since the 13th Amendment “eradicated” slavery we should get rid of the 13th Amendment since slavery is no longer a problem. Whoops, now there’s slaves everywhere?! How’d that happen, H’YUK?

    All the Republicans on the SCOTUS can go to Hell and I hope Satan is a Black Panther.

    Highly-rated. Helpful or Unhelpful: Thumb up 19 Thumb down 4

  9. Surreal American says:

    I’m waiting for the wingnuts to argue that Obama’s 2012 election is invalid due to the recent SCOTUS decision on the VRA

    Like or Dislike: Thumb up 10 Thumb down 2

  10. legion says:

    This is, in its own way, as appalling as the Texas death-row inmate article from earlier.

    Coverage today is based on decades-old data and eradicated practices.

    No. That’s just where the conversation starts – to make a statement like that and not continue the thought is a clear abdication of judicial responsibility. Any jurisdiction affected by this part of the law can get out from under its effect by doing one simple thing: spend ten years not using racist voting laws. That’s it. That’s all you have to demonstrate, and you don’t have to ever submit for approval again. If the courts have a problem with the way Congress is interpreting that 10-year period & standard, that’s one thing, but this ruling is just plain _wrong_.

    Highly-rated. Helpful or Unhelpful: Thumb up 19 Thumb down 1

  11. dennis says:

    There will be a series of unfortunate events because of this. Republicans have become the poster children for The Law of Unintended Consequences. I could ask how can they not see what will occur downwind of this decision, but then I already know the not-surprising answer.

    Like or Dislike: Thumb up 7 Thumb down 0

  12. Franklin says:

    @Rob in CT: Agreed. Congress is the one at fault here for not updating the Act. The Court even gave them ample warning. Unfortunately, the Justices have been forced to follow through on that warning by our dysfunctional lawmakers.

    Like or Dislike: Thumb up 1 Thumb down 0

  13. stonetools says:

    What the Court has said today, though, is that Congress must base its legislating on something more certain than reliance on data that is nearly a half a century old.

    The question should be not whether the data is old.The question is whether the data remains reliable. The reason why the VRA kept getting reauthorized is that Congress kept looking at what the pre-clearance states did and found that they kept on trying to disenfranchise minority voters.

    Now, admittedly, given the current state of Congress, that’s not entirely likely.

    Now you are just being disingenuous, Doug. This Congress will never conduct an investigation into voter suppression, not the least because the Republicans in Congress support these voter suppression efforts. You know that, I know that, and certainly Chief Justice Roberts knows that.

    Andrew Cohen is absurdly comparing this decision to Dred Scott and Plessy v. Ferguson, a comparison that is absurd to anyone who actually understands what those cases said and the historical impact that they had

    On the contrary, its exactly like Plessy. Just like Plessy, SCOTUS ignored the clear evidence that the South was instituting a system of “slavery by another name” and trusted that the South really intended to create a benign system of “separate but equal treatment” of blacks. Now the majority is trusting that the Southern states really, really won’t pass schemes aimed at suppressing minority voters, just because time has passed , even though as recently as 2012 they tried voter suppression schemes. Cohen nails it:

    Let’s be clear about what has just happened. Five unelected, life-tenured men this morning declared that overt racial discrimination in the nation’s voting practices is over and no longer needs all of the special federal protections it once did. They did so, without a trace of irony, by striking down as unconstitutionally outdated a key provision of a federal law that this past election cycle alone protected the franchise for tens of millions of minority citizens. And they did so on behalf of an unrepentant county in the Deep South whose officials complained about the curse of federal oversight even as they continued to this very day to enact and implement racially discriminatory voting laws.

    Isn’t this a simple statement of fact? If not, why? I truly would be interested in you explaining what part of this is “absurd.” Take all the time you want.

    Like or Dislike: Thumb up 15 Thumb down 1

  14. Lit3Bolt says:

    @Franklin:

    Congress is at fault for a lot of things, but that doesn’t give the SCOTUS the right to act in an extra-Constitutional manner and abridge Congressional laws just because. I mean, there’s plenty of “outdated” laws out there, and we’re just going pick and choose on partisan lines which ones are Constitutional or not?

    Great country, bro.

    Like or Dislike: Thumb up 10 Thumb down 0

  15. stonetools says:

    @NickTamere:

    What’s the libertarian position on stealing votes?

    Same like the libertarian position on everything else . “If it doesn’t affect me, I don’t care” .
    Think of all the many posts about the horrors of the NSA reading phone logs. THAT’S a national scandal because it could affect folks like Doug !
    The rights of minority voters? Hey, no big deal. We’ll trust those Confederate legislators because time has passed and they haven’t lynched anyone recently.

    Highly-rated. Helpful or Unhelpful: Thumb up 19 Thumb down 1

  16. Moosebreath says:

    @stonetools:

    “Same like the libertarian position on everything else . “If it doesn’t affect me, I don’t care” .”

    Actually, I thought it was, “I’ll trade everything else for a reduction in my marginal tax rate.”.

    Highly-rated. Helpful or Unhelpful: Thumb up 17 Thumb down 1

  17. Pinky says:

    @Lit3Bolt:

    I guess since the 13th Amendment “eradicated” slavery we should get rid of the 13th Amendment since slavery is no longer a problem.

    That’s a bad analogy. The 13th Amendment is compatible with the Constitution because, well, it’s the Constitution. Section 4 of the VRA was contrary to the 10th Amendment, but held to be necessary for the enforcement of the 15th Amendment. Any state or local violations of the 15th Amendment can still be addressed by the VRA, but the pre-approval is not longer required.

    Like or Dislike: Thumb up 2 Thumb down 3

  18. Armando says:

    So you are a judicial activist Doug? You reject a textual reading of the 15th Amendment?

    Honestly, what you have just produced is not legal analysis. It is policy analysis.

    And that was not the province of the Court on this issue, the 15th Amendment placed it with the Congress.

    It is an outrageous decision and your legal analysis is extremely poor.

    Like or Dislike: Thumb up 7 Thumb down 2

  19. Tony W says:

    @stonetools:

    The question should be not whether the data is old. The question is whether the data remains reliable.

    I’m not persuaded the SCOTUS has legitimate standing to make even that narrow determination. This feels like a de-facto court veto of legitimately enacted legislation on a party-line vote. The affected states had a chance in 2006 to make their case that the data was old, invalid, etc. – having failed to do so and losing a congressional battle, they instead win through the court?

    This is judicial activism if I ever saw it.

    Like or Dislike: Thumb up 12 Thumb down 0

  20. rudderpedals says:

    @Franklin: What some call ample warning others call extortion.

    Where are the language technician originalists on the 15th amendment?

    Like or Dislike: Thumb up 1 Thumb down 0

  21. Pinky says:

    @Tony W: On the surface, it does seem like judicial activism. After all, Congress can use as old or inaccurate data as it wants to.

    But – not to implement a law that violates the 10th Amendment. Now, the messy question is, is there really an expiration date for constitutionality? It think it’d be more consistent if the Court found that that section of the VRA was never constitutional.

    Like or Dislike: Thumb up 0 Thumb down 4

  22. Andy says:

    This is, pretty obviously, a problem that Congress should have solved but didn’t. The court gave Congress ample warning to make changes and they didn’t. Not really surprising sadly.

    I agree with the majority’s arguments about using very old data to keep the status quo policy which would have, in practice, been in place until at least 2031. It’s not a good idea and the reason isn’t limited to the question of whether virtually all the places on the list 40 years ago should remain on the list today or until 2031. There is also the question of whether there are places that are not currently on the preclearance list but should be. The other problem with using old data is that new problem areas can never get added.

    If federal intervention of this sort is still necessary, then there should be a clear, objective standard using clear, measurable criteria. This standard should apply everywhere, not just historically problematic areas, and it should be implemented in a timely manner based on current information, not every 25 years through a rubber stamp renewal.

    Like or Dislike: Thumb up 3 Thumb down 0

  23. To deny that circumstances have changed in many of the jurisdictions that were originally put on the pre-clearance list is to deny reality. Louisiana has elected an Indian-American Governor. South Carolina has elected a female Indian-American Governor. Virginia has had an African-American Governor. At lower levels, minorities and women have been elected to a wide variety of offices in nearly all of these states. And, of course, the nation as a whole has elected an African-American President twice in a row and, if the polls are two believed, stands a good chance of electing a female President in 2016.

    And all of the above under the scrutiny of Section 4 of the Voting Rights Act.

    Like or Dislike: Thumb up 12 Thumb down 0

  24. Jack says:

    Too many folks are referring to the Voter ID laws as reasons why this needs to remain in force. Can ANYONE tell me how asking for ID from someone old enough to smoke, likely old enough to drink, who likely has a checking/savings account doesn’t in this day have a form of ID? You guys don’t cry foul when I have to prove who I am to buy a gun–a right by the way, but I shouldn’t have to show ID to vote in a federal election–a non-right?

    Poorly-rated. Helpful or Unhelpful: Thumb up 1 Thumb down 16

  25. Console says:

    @Pinky:

    The 10th amendment in and of itself is nothing more than a truism. Even if the 10th amendment didn’t exist, the federal government would still only have the powers that are laid out in the constitution. That’ the point of a constitution.

    If the federal government has a power outlined in the constitution (the 15th amendment in this case) then the federal government has that power independent of the 10th amendment because obviously that power was delegated to the federal government.

    What we have here is a weird ass ruling where a law magically used to be constitutional, but now is not because the conservative justices don’t have the balls to admit that they would have never let the law stand in the first place.

    Like or Dislike: Thumb up 7 Thumb down 0

  26. Franklin says:

    @rudderpedals: I guess I haven’t read enough to understand the extortion comment.

    I agree the reasoning on the part of SCOTUS is a bit shaky, and I don’t like the likely results of this ruling, but I still insist this could be solved if Congress simply did their job.

    Like or Dislike: Thumb up 2 Thumb down 2

  27. rudderpedals says:

    @Franklin: Extortion in a colloquial sense. A threat was deployed to strongarm Congress to act within an unknown and arbitrary amount of time to save the Voting Rights Act.

    Should section 4 have been updated? Of course, but the timing and fixes themselves are necessarily political questions for our elected representatives.

    Like or Dislike: Thumb up 1 Thumb down 0

  28. Moosebreath says:

    @Jack:

    “Can ANYONE tell me how asking for ID from someone old enough to smoke, likely old enough to drink, who likely has a checking/savings account doesn’t in this day have a form of ID?”

    Since studies of actual adults show around 11% of them don’t have ID’s, you’ll have to take it up with them.

    “to vote in a federal election–a non-right”

    Meet the 15th Amendment:

    “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”

    Smarter trolls, please.

    Like or Dislike: Thumb up 13 Thumb down 0

  29. mantis says:

    @Jack:

    Anyone who thinks buying guns is a right but voting is not does not deserve to call himself an American.

    Highly-rated. Helpful or Unhelpful: Thumb up 16 Thumb down 0

  30. stonetools says:

    @Andy:

    If federal intervention of this sort is still necessary, then there should be a clear, objective standard using clear, measurable criteria. This standard should apply everywhere, not just historically problematic areas, and it should be implemented in a timely manner based on current information, not every 25 years through a rubber stamp renewal.

    And ponies for everyone too!
    After all, if the game is “name a type of Voting Right Act that this Congress will never pass” you might as well add a pony requirement. I think your heart is in the right place, Andy, but you should understand that this Congress will never pass any kind of legislation in favor of protecting voting rights for minorities. Rather, Congressional Republicans FAVOR voter suppression laws, euphemistically called voter ID laws.
    The choice was between this imperfect, but still functional, pre-clearance voting rights law and no such law at all. SCOTUS’s suggestion that all Congress has to do is pass a better law is like suggesting that the best way to protect a hen house is to appoint foxes as guards.

    Like or Dislike: Thumb up 3 Thumb down 0

  31. Jack says:

    @Moosebreath: That’s State elections. Nothing in the Constitution outlines a right to vote in a FEDERAL election.

    Like or Dislike: Thumb up 1 Thumb down 7

  32. stonetools says:

    What’s great about the conservative majority’s sleight of hand here is that they can suggest that Congress pass an updated Section 4, knowing that the Republicans in this Congress will never permit any such law to pass. However this decision makes it more likely that Republicans at state level will pass laws that suppress minority turnout, thus making it more difficult for Democrats to win and replace the Republicans in Congress that oppose updating the VRA. Nicely done, Chief Justice.
    Here is the victorious plaintiff Shelby County-such a great example of the new South that James and Doug are touting:

    In the case before the court, Shelby County, Alabama, the plaintiff, is poorly positioned to claim that Section 5 is an undue burden. Shelby County attempted to redistrict its one African American lawmaker out of a seat in 2006. More recently, in 2011, a Republican state senator was recorded by the FBI calling African Americans “aborigines.”

    Want reality , folks? THAT’S reality.

    Like or Dislike: Thumb up 8 Thumb down 0

  33. Jack says:

    @mantis: Again, show me where in the Constitution it says you can vote in a FEDERAL election. I looked in the Bill of Rights, and I didn’t see the word “vote” one time. Ergo, there is no “right to vote” in the Bill of Rights.

    OK, maybe you meant the entire Constitution and not just the Bill of Rights. Um…nope. The only thing the Constitution says about voting is that wherever it may be allowed, the states (plus D.C.) cannot exclude based on race or gender or people who are 18+ years of age without due process.

    What I’m saying is that there is no constitutional right to vote in federal elections.

    Like or Dislike: Thumb up 1 Thumb down 5

  34. mantis says:

    @Jack:

    OK, maybe you meant the entire Constitution and not just the Bill of Rights.

    Yes, we’ll be using the whole thing if it’s all the same to you.

    That’s State elections. Nothing in the Constitution outlines a right to vote in a FEDERAL election.

    Let’s look again:

    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.

    Pop quiz: what does the phrase “United States” mean in the Constitution, as opposed to “any State” or “the States”? One correct answer starts with an “F”.

    What I’m saying is that there is no constitutional right to vote in federal elections.

    Lucky for us your ignorance has no impact on our actual rights.

    Like or Dislike: Thumb up 11 Thumb down 1

  35. Jack says:

    @mantis: Justice Antonin Scalia, in Bush v. Gore, continuously reminded lawyers that there is no explicit right to vote in the United States Constitution. The majority opinion agreed: “The individual citizen has no federal constitutional right to vote for electors for the President of the United States” (Bush v. Gore, 531 U.S. 98, 104 [2000]).

    Go big or stay home and play with your see and say. I guess we know which one you are doing.

    Like or Dislike: Thumb up 1 Thumb down 7

  36. Jack says:

    @mantis: Well, the actual texts of each amendment do not give anyone the right to vote, but instead are non-discrimination clauses: They state that the right to vote “shall not be abridged or denied” on account of gender, age, race or previous condition of servitude.

    Any state could refuse to hold a Presidential election, no one could vote, and it would be fully Constitutional. No discrimination there.

    According to federal law, citizens do not have the right to vote for electors, who in turn are not obligated to vote in the peoples’ interest. Most recently, in the 2004 election, an anonymous Minnesota elector voted for John Edwards, though most Minnesota voters cast their ballots for John Kerry, and Edwards wasn’t even running.

    Like or Dislike: Thumb up 1 Thumb down 7

  37. nightrider says:

    Almost all of the discussion I am seeing on OTB relates to whether the VRA is good policy. That’s a discussion for Congress. The Constitution doesn’t require Congress to rely on up-to-date facts or realities. And it seems absurd to suggest that the 14th and 15th Amendments didn’t empower the federal government to treat some states differently from others and micromanage their handing of these kinds of issues.

    Like or Dislike: Thumb up 6 Thumb down 0

  38. Console says:

    @Jack:

    And a state that had no criminal penalties would have no need of an 8th amendment… that doesn’t magically make the 8th amendment nonexistent. And either way the VRA doesn’t only cover presidential elections

    Don’t double down just because you have no clue what you are talking about. Learn and move on.

    Like or Dislike: Thumb up 2 Thumb down 0

  39. Console says:

    @Jack:

    And just so you don’t say any more stupid shit, here’s some actual quotes from the constitution (which you obviously haven’t read) about federal elections:

    The House of Representatives shall be composed of Members chosen every second Year by the People of the several States

    From the 17th amendment… the one that forces popular vote from senators:

    The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years

    Those are FEDERAL ELECTIONS that are mandated by the constitution and as such would fall under the VRA.

    I seriously don’t get people like you. What’s wrong with being wrong? It’s not the end of the world. Why fight to the death to make yourself look stupid instead of merely ignorant?

    Like or Dislike: Thumb up 7 Thumb down 0

  40. SC_Birdflyte says:

    @Jack: By the terms of Bush v. Gore, that decision is NOT a precedent for any other case.

    Like or Dislike: Thumb up 5 Thumb down 0

  41. Xenos says:

    @SC_Birdflyte: But what about the dicta from Bush v. Gore — can we cite that?

    Like or Dislike: Thumb up 2 Thumb down 0

  42. Jack says:

    @Console: There is no RIGHT to vote for President! It is not in the Constitution. There is no right to vote, period. Otherwise Jesse Jackson Jr. wouldn’t have been pushing the “Right to Vote Amendment”.

    http://archive.democrats.com/view.cfm?id=12581

    Like or Dislike: Thumb up 0 Thumb down 0

  43. Rob in CT says:

    There is no RIGHT to vote for President!

    Hayzus Christo, man. You go right ahead and keep beating that drum. Please. Pretty please. Make sure you have a big “GOP” sticker on you as you do it.

    Like or Dislike: Thumb up 3 Thumb down 0

  44. Jack says:

    @Rob in CT: Suck my ballz.

    Like or Dislike: Thumb up 0 Thumb down 3

  45. Tony W says:

    @Jack: Not sure where you came from but that stuff won’t win any arguments here on OTB, friend.

    Like or Dislike: Thumb up 2 Thumb down 0

  46. Jack says:

    @Tony W: I’m made my arguement and backed it up wioth solid, unrefuted evidence. Rob in CTs response was to blather on with B.S. so I responded in kind.

    Like or Dislike: Thumb up 0 Thumb down 0

  47. Robert Levine says:

    I agree with Scalia in his dissent:

    The Court’s opinion both in explaining its jurisdiction and its decision ‘both spring from the same diseased root: an exalted notion of the role of this court in American democratic society.

    O wait… different opinion. Funny how what’s a “diseased root” in one case is simply doing away with a racial entitlement in another. Or could it be that Scalia cares a lot about preventing gays from marrying but has no problem with preventing black people from voting?

    Like or Dislike: Thumb up 2 Thumb down 0