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Fox
Joined: 04 Mar 2009
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 Posted: Mon Feb 25, 2013 3:55 pm Post subject: VRA: The End Of Section 5? |
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The topic: Shelby County vs Holder.
The questions for the Dave's ESL Punditocracy:
1) How do you think the court will rule?
2) How should it rule?
Consider the following:
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Congress found thousands of instances of voting discrimination in covered jurisdictions between 1982 � when Section 5 last was reauthorized � and 2006. During that period, more than 750 Section 5 objections blocked approximately 2400 discriminatory voting changes. Over half of the objections blocked intentional voting discrimination, suggesting constitutional violations.
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Section 5 also deterred discriminatory voting changes � more than 205 voting changes were withdrawn after the Department of Justice requested more information. Further, voting discrimination was evidenced by the 650 successful lawsuits brought under Section 2 of the Voting Rights Act in covered jurisdictions.
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I was born in 1982. It's honestly pretty hard to believe. Over 2400 discriminatory voting changes blocked by Section 5 in my lifetime, and many more deterred.
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| During the 2006 reauthorization Congress considered a detailed study of every published case involving Section 2 of the Voting Rights Act, which applies nationwide, since 1982. The �Katz Study� showed that covered jurisdictions account for less than twenty-five percent of the nation�s population, but they account for fifty-six percent of successful Section 2 litigation. A similar �McCrary Study� that included unpublished cases found that covered jurisdictions accounted for approximately eighty-one percent of successful Section 2 cases. On a per capita basis, there were four times more published successful cases in covered jurisdictions than in uncovered jurisdictions (and twelve times more when factoring in unpublished cases). Also, of the twelve states with the highest per capita rates of successful Section 2 litigation, eleven are covered, partially covered, or have been bailed into coverage. |
That seems damning to me given, "Shelby County contends that the voting discrimination that still does exist is no longer concentrated in covered jurisdictions, and that a coverage formula based on election data from 1964, 1968, and 1972 presidential elections is obsolete."
Moreover, areas seeking legitimate release from Section 5 are generally successful, and at low cost:
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| Congress also recognized that the preclearance process was properly tailored because covered jurisdictions with a clean record for ten years can bail out of coverage. Congress heard extensive testimony that bailout is not burdensome or expensive, at a cost estimated at $5000 for most counties, and as low as $2500 for towns. Since the revised bailout standard became effective in 1984, there have been thirty-eight successful bailouts, resulting in 236 different jurisdictions being released from coverage (including one quarter of all Virginia counties). Indeed, every eligible jurisdiction seeking a bailout since 1984 has been successful. |
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Kuros
Joined: 27 Apr 2004
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| Posted: Mon Feb 25, 2013 5:08 pm Post subject: |
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SCOTUSblog is an excellent resource
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In its brief in the merits, Shelby County echoes the Court�s admonition in NAMUDNO that Section 5 imposes �current burdens,� which must be justified by �current needs.� Even if the states covered by Section 5 may have discriminated in the past, it argues, that does not automatically mean that they are still discriminating now, and Congress shouldn�t have passed new legislation renewing Section 5 until 2031 unless it put together evidence showing that the extension of the law was actually necessary � which it did not. And if some isolated problems do remain, there are other, less draconian remedies to combat them, such as filing a lawsuit under another provision of the VRA to challenge the discriminatory practice or procedure. Finally, even if Congress did accurately identify some instances of racial discrimination in voting, Shelby County asserts, there is no guarantee that Section 5 will help: because the criteria used to determine which states must comply with Section 5 use voter registration and turn-out data from the early 1970s, states that adopt discriminatory practices now may not be subject to Section 5 at all and vice versa.
In its brief, the federal government emphasizes a very different theme: Trust Congress. The government stresses that Congress�s 2006 decision to extend Section 5 was made only after Congress held twenty-one hearings, compiled thousands of pages of evidence, and concluded that Section 5 was still needed. The U.S. concedes that the �coverage formula� � the criteria used to determine who must comply with Section 5 � has not changed for quite a while, but it tries to reassure the Court that jurisdictions which are truly not discriminating against minority voters won�t find themselves having to comply with the preclearance requirement in perpetuity. As evidence for this, the government points to (and provides a long list of) the many jurisdictions that have in fact gotten a �bailout� from Section 5 from the federal government � i.e., have successfully applied to be removed from the list of jurisdictions that require preclearance. |
Here's a map which shows how few jurisdictions have received a bailout under Section 5, they're all in Virginia. As you can see, statewide preclearances can be removed piecemeal on a county-by-county and even township-by-township basis. Further up from the quotation I provided, seven justices point out that preclearance was intended to be temporary.
I really don't know where I stand on this. I'd need to read the earlier NAMUDNO decision to get my bearings. |
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Fox
Joined: 04 Mar 2009
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| Posted: Wed Feb 27, 2013 5:19 pm Post subject: |
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Scalia.
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And this last enactment, not a single vote
in the Senate against it. And the House is pretty much the same. Now, I don't think that's attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. |
Thousands of instances of this law working as intended in recent times proving its necessity, and Scalia denies that congress saw a legitimate need for this law to be reauthorized, and instead speaks of racial entitlement.
I have a feeling this is going to be another 5/4 embarrassment.
Guess who said these things:
"We Americans have a method for making the laws that are over us. We elect representatives to two Houses of Congress, each of which must enact the new law and present it for the approval of a President, whom we also elect. For over two decades now, unelected federal judges have been usurping this lawmaking power by converting what they regard as norms of international law into American law. Today's opinion approves that process in principle, though urging the lower courts to be more restrained. This Court seems incapable of admitting that some matters - any matters - are none of its business."
"It is one of the unhappy incidents of the federal system that a self-righteous Supreme Court, acting on its Members' personal view of what would make a 'more perfect Union' (a criterion only slightly more restrictive than a 'more perfect world') can impose its own favored social and economic dispositions nationwide."
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While I'm bitching about the Supreme Court, I might as well complain about this as well.
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The Supreme Court severely damaged the rule of law in its decision on Tuesday to disallow a lawsuit challenging the federal law that permits broad, secret surveillance and interception of international communications involving Americans. The suit, brought by lawyers, journalists and human rights activists, charged that the 2008 amendments to the Foreign Intelligence Surveillance Act violate their rights to privacy and free speech.
Justice Samuel Alito Jr., writing the 5-to-4 majority opinion, misleadingly presented the court as a model of restraint and its ruling as a narrow one. But, in fact, the decision will likely shut down all judicial review of this pernicious surveillance law, barring anyone from ever challenging its constitutionality in federal court.
The majority ruled that the plaintiffs did not have standing to sue because they cannot show they have been harmed by the surveillance law. This is a classic Catch-22: since the surveillance is secret and no one can say for certain that their calls, e-mails and other communications have been or will be monitored, by the court�s logic no one will ever be able to show standing to bring a lawsuit.
The court�s decision is a clear-cut abdication of its fundamental role in the American constitutional system of checks and balances, which ensures that Congress and the president are not infringing on protected rights.
The Foreign Intelligence Surveillance Act of 1978 generally required the government to get an individual order from a special court before it could engage in electronic surveillance, though that court has too often functioned as a rubber stamp for government requests. The 2008 amendments to the law give the government sweeping power to intercept communications of Americans without individualized suspicions, warrants based on probable cause or any administrative findings of a terrorism connection.
The law does not require the government to identify its surveillance subjects. It exposes every communication between someone in the United States and a non-American abroad to the risk of surveillance. It chills the free speech and privacy rights of people in this country. The law also reduces the special court�s already narrow function to virtually nothing.
The majority overturned a unanimous ruling by three judges of the United States Court of Appeals for the Second Circuit. That court properly found that the plaintiffs had standing to sue because they �established that they have a reasonable fear of injury and have incurred costs to avoid it.� That legal standard is well established under Supreme Court law.
Justice Stephen Breyer, writing in dissent, said that �there is a very high likelihood� that the government �will intercept at least some of the communications� the plaintiffs described in the lawsuit and that the court �has often found standing where the occurrence of the relevant injury was far less certain than here.�
The Supreme Court should have let this case go forward. Its refusal essentially prohibits constitutional review of the 2008 law and whether Congress and the executive branch have undercut fundamental liberties. |
So when it comes to Section 5, meddling is all well and good, but when it comes to citizens being secretly spied upon by the government, we're back to, "It's none of our business," and 5/4 in favor of the police state? |
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Kuros
Joined: 27 Apr 2004
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| Posted: Wed Feb 27, 2013 5:34 pm Post subject: |
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Dismissing the surveillance case on grounds of standing is such bullshit. Courts are too happy to run over standing issues when banks don't have their documents in order showing they are the real party in interest in foreclosure actions.
As to the VRA, I'm not sure preclearance is necessary where courts are willing to issue preliminary injunctions on sudden voting rights violations. You'll remember that GOP efforts to disenfranchise racial minorities were frustrated by court injunctions in a great deal of states, including Ohio and Pennsylvania. Let's remember that the entire VRA is not at stake, only the preclearance mechanism. Its very easy to overemphasize the effect of these decisions, sometimes. |
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Fox
Joined: 04 Mar 2009
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| Posted: Wed Feb 27, 2013 5:57 pm Post subject: |
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| Kuros wrote: |
| As to the VRA, I'm not sure preclearance is necessary where courts are willing to issue preliminary injunctions on sudden voting rights violations. You'll remember that GOP efforts to disenfranchise racial minorities were frustrated by court injunctions in a great deal of states, including Ohio and Pennsylvania. Let's remember that the entire VRA is not at stake, only the preclearance mechanism. Its very easy to overemphasize the effect of these decisions, sometimes. |
Well, I do not think the world is going to end when (and it's probably when rather than if) Section 5 gets tampered with and/or struck down. I do not think it will be end-game for minority voters or some such. But the Supreme Court playing the judicial activism game here is wrong. Section 5 was meant to be temporary, and it should be temporary, but that doesn't mean it needs to be terminated right now just because a few Supreme Court justices are getting impatient. Section 5 ultimately protects legitimate citizen rights, and that ought to leave any right-thinking Justice incredibly reluctant to strike it down without the most pressing and urgent of need. No such need exists; this case isn't about need, and it isn't about unconstitutionality, it's about advancing the whole "The South Has Changed!" narrative. That's not the Highest Court's function, or at least it ought not to be.
Judge Roberts himself in Northwest Austin Municipal Utility District No 1 vs Holder admitted to the historic success of Section 5 (even if he grumbled a bit about its lack of universality), and he was right. Everyone but Thomas acceded to its constitutionality in that case. And maybe they'll show restraint here too, some dickish comments in the courtroom do not necessarily mandate the final conclusions which will be reached (but pessimism spurs discussion!). What has changed since 2006? Not the Constitution. Not the circumstances, not really. If they strike it down, it will be about the narrative.
I don't even necessarily disagree that Section 5 should have originally been applied universally. It would have sent a stronger message, and the less discriminatory regions could have gotten bails quickly enough, which would push the point home further. But that's beyond changing now, and not sufficient justification to strike down a law that has done much good and no real harm.
| Kuros wrote: |
| You'll remember that GOP efforts to disenfranchise racial minorities were frustrated by court injunctions in a great deal of states |
Response response to that.
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| And that leaves Justice Kennedy. Liberals always pin their hopes on him, but they are usually disappointed (outside the context of social issues such as (sometimes) abortion and gay rights). But he�s been very hostile to the VRA and very strong on federalism and the sovereignty and dignity of states. One might say that is a signature issue for him. Reading his questions at oral argument, he is clearly troubled by the Act, and believes it is outdated (claiming that the Marshall Plan was great for then, but this is now). Justice Kennedy seems to believe, wrongly in my view, that section 2 and the use of preliminary injunctions, could do the same work as section 5. In a future post I�ll explain why this is wrong (the burden of proof is different, the substantive standard is different, and the threat of section 2 litigation is not the same bargaining chip as Section 5 is). |
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Like many other states with Republican majority legislatures acting over the last few years, South Carolina adopted a tough photo identification law before the 2012 election. The state�s Republican legislature likely acted out of the belief that such laws would marginally depress Democratic turnout and help Republicans at the polls. Controversy over voter ID laws also motivates the Republican base to turn out to vote. (What voter ID laws don�t do is prevent a lot of real voter fraud, though that�s the rationale their supporters cite.)
The U.S. Department of Justice blocked South Carolina�s voter ID requirement under Section 5. The process sounds technical, but it�s important. Nine full states and parts of other states with a history of racial discrimination in voting must get approval from either the Department of Justice or a three-judge court in Washington, D.C. before making any changes in their voting practices and procedures�from changes as small as moving a polling location to as large as enacting a new redistricting plan.
The states and localities covered by Section 5 must prove that any change in voting rules it proposes will not have the effect, and was not enacted with the purpose, of making minority voters worse off. The original point of this law, when it first passed in 1965, was to stop an old cat-and-mouse game in which the federal government sued racist Southern states to stop discriminatory voting practices�and after the feds won, the states would just enact a slightly different discriminatory law in its place. Today, the law prevents these jurisdictions from slipping back into that pattern.
South Carolina�s voter ID law allowed election officials to accommodate voters who had �reasonable impediments� preventing them from getting the type of photo ID needed for voting. DOJ still objected, as did legal organizations representing minority voters. And because of Section 5, South Carolina had the burden of showing that the voter ID requirement did not discriminate. As DOJ�s case against South Carolina proceeded, the state watered down its law making it easier for people without photographic identification to vote through expanding the �reasonable impediment� provision. The court eventually approved South Carolina�s law for use in 2013�but only because Section 5 spurred those changes. As Judge John Bates observed: �Without the review process under the Voting Rights Act, South Carolina�s voter photo ID law certainly would have been more restrictive.�* The winners are the minority voters in South Carolina who ended up with a much better law.
The metamorphosis of South Carolina�s law was unusual because it occurred in public view. More routinely, Section 5 prods states to revise laws to satisfy DOJ and minority voters in a process that takes place within the DOJ review process. It�s more informal, and also less expensive than going to court, with DOJ soliciting input from groups representing local minority voters. Section 5 gives these groups leverage to negotiate changes�they have a seat at the table, which they don�t have in many states not covered by Section 5. When minority groups complain about a proposed voting change and DOJ agrees with the complaints, states will often change their laws, or withdraw their requests to change the law entirely. DOJ doesn�t even have to formally object: As Luis Ricardo Fraga and Maria Lizet Ocampo found, states often revise or withdraw their proposed changes after DOJ simply asks them for more information about how their proposals will affect minority voters. It�s a thumb on the scale that matters.
Voter ID laws have also passed outside the South in recent years, in states such as Indiana and Kansas. Because Section 5 doesn�t apply there, no federal law prevents the voter ID requirements from going into effect, though some state courts have blocked them for other reasons. By contrast, because of Section 5, South Carolina�s law automatically went on hold until it was softened. Texas, meanwhile, lost a bid to impose an even stricter voter ID requirement enacted in 2011. |
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Kuros
Joined: 27 Apr 2004
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| Posted: Wed Feb 27, 2013 6:59 pm Post subject: |
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The Court which strikes preclearance down will be engaging in a judgment call which it may be reluctant to repeat in similar circumstances.
Here's the wording of the 15th Amendment.
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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 |
So, it seems the Court will decide whether or not Section 5 of the VRA will be 'appropriate' legislation. I'm a stout Federalist myself, but given the due diligence which Congress applied to Section 5, I would be reluctant to overrule the product of significant Congressional findings.
I believe this will be a 5-4 decision, and neither Kennedy or Roberts will break judicially conservative. They'll be in the politically conservative majority. |
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catman
Joined: 18 Jul 2004
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| Posted: Wed Feb 27, 2013 8:34 pm Post subject: |
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| Angry white men using the courts to "get their country back". |
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bucheon bum
Joined: 16 Jan 2003
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| Posted: Wed Feb 27, 2013 8:40 pm Post subject: |
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| catman wrote: |
| Angry white men using the courts to "get their country back". |
Angry OLDER white men thank you very much. I'd like to hope us younger white guys are a little less angry and bitter than our older peers. |
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Fox
Joined: 04 Mar 2009
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| Posted: Wed Feb 27, 2013 8:58 pm Post subject: |
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Demonizing white males might be an effective political tactic, but it's not admirable.
Besides, Clarence Thomas, the Justice most hostile to Section 5 of the VRA, is black. |
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Titus
Joined: 19 May 2012
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| Posted: Fri Mar 01, 2013 6:44 am Post subject: |
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| bucheon bum wrote: |
| catman wrote: |
| Angry white men using the courts to "get their country back". |
Angry OLDER white men thank you very much. I'd like to hope us younger white guys are a little less angry and bitter than our older peers. |
Ethnomasochism. |
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stilicho25
Joined: 05 Apr 2010
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| Posted: Fri Mar 01, 2013 7:59 am Post subject: |
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| I would put forward govt mismanagement Titus. I think we are going in circles. Put lots of black guys in jail for pot, and have the moms raise the kids on welfare and you will have a social disaster. I think its spreading to poor whites as well. |
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Titus
Joined: 19 May 2012
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| Posted: Fri Mar 01, 2013 8:08 am Post subject: |
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| stilicho25 wrote: |
| I would put forward govt mismanagement Titus. I think we are going in circles. Put lots of black guys in jail for pot, and have the moms raise the kids on welfare and you will have a social disaster. I think its spreading to poor whites as well. |
It is spreading to poor whites. Charles Murray wrote a book about this about a year ago. There is no comparison between the behaviour of poor whites and the behaviour of poor blacks, and never will be.
Someone on here suggested I "educate myself" and look up the crime rates between Prince William County (I think that was the one, it was a while back) and a "trailer park in Kentucky". I did. I looked at the poorest but white county in KY and compared to PWC. Do it yourself. It's shocking. |
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stilicho25
Joined: 05 Apr 2010
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| Posted: Fri Mar 01, 2013 4:02 pm Post subject: |
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OK, I just looked and have to admit I couldn't make heads or tails of the info, as they seemed to be using different systems that weren't easily reconcilable. Back to Khan academy for me.
http://www.pwcgov.org/government/dept/police/documents/14339.pdf
http://criminalstatistics.org/ky/clay
But anyhoo, say for the sake of argument your are right, and the crime rate is on a different planet. The tenor of your argument seems to be that genetics is the defining reason for that. I think bad government policy, history, and self inflicted cultural reasons are more likely.
So Scandinavians were pretty violent and aggressive at one point. Then Lutheranism seeps in, the culture changes, and you have hugely muscled viking-looking pacifists. I just don't buy the crime = aggressive genetics. Russians are scary when poor and in Brighton beach, and good neighbors when in Manhattan. Now I recognize the Brighton Beach isn't as violent as Alphabet city (although I think that's because they are good at hiding the bodies) but I think my point still stands the culture and circumstances account for 90%* of human behavior.
* my very arbitrary non-scientific no basis in fact estimation which should actually translate to almost all. |
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Fox
Joined: 04 Mar 2009
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| Posted: Fri Mar 01, 2013 4:23 pm Post subject: |
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| stilicho25 wrote: |
So Scandinavians were pretty violent and aggressive at one point. Then Lutheranism seeps in, the culture changes, and you have hugely muscled viking-looking pacifists. |
Hold on a moment. Violence and crime are not necessarily the same thing. There is a huge difference between raiding out-society groups in pre-modern times, and raiding in-society individuals in a prosperous modern society.
I do not disagree, incidentally, that there is a cultural element at work here. There surely is. But it's unlikely, given the broad global trends in the data available, that genetics plays little or no role. In fact, it would be almost miraculous. |
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stilicho25
Joined: 05 Apr 2010
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