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The good news first

Since The Nation's Ari Berman has been covering voter suppression so well, let him deliver that news:

By pushing voter suppression laws, Republicans wanted the 2012 electorate to be older, whiter and more conservative than the young and diverse 2008 electorate.

But the GOP’s suppression strategy failed. Ten major restrictive voting laws were blocked in court and turnout among young, black and Hispanic voters increased as a share of the electorate relative to 2008.

Take a look at Ohio, where Ohio Republicans limited early voting hours as a way to decrease the African-American vote, which made up a majority of early voters in cities like Cleveland and Dayton. Early voting did fall relative to 2008 as a result of Ohio Secretary of State Jon Husted’s cutbacks in early voting days and hours, but the overall share of the black electorate increased from 11 percent in 2008 to 15 percent in 2012. More than anything else, that explains why Barack Obama once again carried the state.

I spent the weekend before the election in black churches in Cleveland, and there’s no doubt in my mind that the GOP’s push to curtail the rights of black voters made them even more motivated to cast a ballot. “When they went after big mama’s voting rights, they made all of us mad,” said Reverend Tony Minor, Ohio coordinator of the African American Ministers Leadership Council.

The GOP tried to suppress the vote. They pissed people off. And people whose vote they were trying to suppress voted heavily. And Obama won. Exit polls in the 31 states that had them this year found that 28 percent of voters were racial minorities versus 26 percent in 2012. Although overall turnout was down this year, by how much is unclear given that we have several million votes still not tallied. Given those still-being-counter votes, it is certain the absolute number of racial minorities who voted this year was higher than four years ago. No doubt some voters wound up staying home because of voter suppression efforts. But as the long lines would indicate, overall the voter suppression efforts may well have cost the Republicans some seats they would otherwise have won and even a state or two for Mitt Romney.

Now the bad news

As Marcy Wheeler put it, the Supreme Court prepares to decide the 2016 election. The Court announced Friday that it will review Shelby County v. Holder, an Alabama case involving a key bulwark in the long fight against voter suppression, the Voting Rights Act of 1965. The act was passed as an antidote to decades of Jim Crow laws designed to keep blacks from casting ballots. It provides relief for racial and language minorities at the polls. Lyle Denniston at Scotusblog explains:

Specially at issue is the constitutionality of the law’s Section 5, the most important provision, under which nine states and parts of seven others with a past history of racial bias in voting must get official clearance in Washington before they may put into effect any change in election laws or procedures, no matter how small. The Court came close to striking down that section three years ago, but instead sent Congress clear signals that it should update the law so that it reflects more recent conditions, especially in the South. Congress did nothing in reaction. [...]

In agreeing to rule on the Voting Rights Act, the Court limited its review to a question which it composed itself: ”Whether Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage fomulal of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.”   The Tenth Amendment protects the powers of states by limiting Congress’s powers.

A decision to overturn Section 5 could make voter suppression considerably easier (and more likely to occur) in at least some of those states. Foes of the Voting Rights Act have, of course, always painted that opposition in terms of states' rights.

Garrett Epps at The Atlantic has an excellent essay on the issue, which includes:

The Voting Rights Act is one of the greatest success stories in the history of American civil rights law. Within a few years, barriers to the ballot tumbled in states across the South and West. The old elite of the Jim Crow South fought on; but the "pre-clearance" procedure stymied its attempts to neutralize political gains with new district lines, registration rules, or practices at the polling place. The freer political atmosphere in the South meant the growth of a two-party system and bi-racial House delegations. Four times, Congress has reauthorized the VRA, most recently in 2006, by a vote of 390 to 33 in the House, and 98 to 0 in the Senate.

But southern state governments chafe under the special restrictions it places on them. Just to give one example of how pre-clearance works, consider that the Republican-led Florida legislature in 2011 sharply cut back on early voting in that state. Voting-rights groups sued to block the change, but failed. However, some parts of Florida are "covered jurisdictions." In those counties, the cutback in early voting was blocked by the Justice Department; after a court proceeding, the state had to agree to extend early voting beyond its original plan.

More from Richard Pildes here.

(Please continue reading below the fold.)

In other voter suppression news

Virginia County supervisor calls long waits voter suppression: An elected Prince William County supervisor, Frank Principi, said

The combination of antiquated technology and too few machines, and the management operations of the elections themselves, made for a really bad experience on the part of tens of thousands of eastern Prince William voters [...] “This is the worst form of voter suppression. People came. They stood in line and then they left.”
Virginia election official is leading vote suppressor: The vote did not go smoothly in Fairfax County, Virginia, Tuesday night. Long lines that caused up to three-and-a-half-hour waits in some precincts led many people complain. One problem: not enough poll workers. The vice chair of the three-member county election board is the Hans von Spakovsky of the Heritage Foundation, a leading proponent of disenfranchising low-income and minority citizens. That, of course, couldn't possibly have anything to do with the mess in Fairfax on Tuesday.

Andrew Cohen suggests Eric Holder resign: But it's not what you might think. Since Holder himself has indicated he might not stay on for another four years with the administration, Cohen says there is a perfect challenge for him to take on:

Eric Holder should resign his post at Justice to lead the new Commission on Election Reform that President Obama must empanel to investigate voter suppression, voter fraud, and all other threats to voting rights. The Commission should be charged with recommending to Congress what legal changes are necessary to ensure that American citizens do not have to be put through the indignities they suffered this year when they tried to register and vote. If the president is serious about the topic-- "we have to fix that," he said early Wednesday morning in his victory speech, referring to outrageously long voting lines this year—this would surely be a good way to show it.
Minnesotans got wise to voter-ID proposal and axed it:
It was truly amazing to watch Minnesotans reject the proposed state constitutional amendment that would have required eligible voters to obtain a state-issued photo identification card to cast their ballots.  Especially amazing after polls a year ago showed 80 percent of the public favored the idea, including 60 percent of the Democrats, who apparently did not realize they would be committing political suicide if they voted for it.
Election big win for lawyers: Among the many voting cases they may be called upon to resolve:
In Ohio, ongoing litigation about the way provisional ballots are counted will continue so that election law is settled, even if the media spotlight moves on, Hasen said. And in New Jersey, voters have been complaining about problems with the email voting system, something that would not likely affect the presidential race but could cause challenges and post-election litigation for all of the down-ticket races that are close, he said.
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Comment Preferences

  •  Election night on Democracy Now! black (17+ / 0-)

    participants said this was the case, that what would probably have been a lukewarm turnout turned into a much hotter one because felt the threat and responded.

    Move Single Payer Forward? Join 18,000 Doctors of PNHP and 185,000 member National Nurses United

    by divineorder on Sat Nov 10, 2012 at 08:05:17 AM PST

  •  We will lose this one. But the courts can still (3+ / 0-)
    Recommended by:
    Dave in Northridge, MJB, wasatch

    be used to fight disenfranchisement, see PA and Ohio.

    Not happy about this but the current court will strike this down.

    •  Yeah, we'll lose a few big SCOTUS cases this year (3+ / 0-)
      Recommended by:
      StrayCat, 313to212, wasatch

      The chief justice knew these cases were coming and wanted to make conservative law with them this year, and crafted his vote on the Obamacare Cases to give the Court the political capital for what he wants to do.  And one of the things on his conservative agenda is getting rid of Section 5.

      Please help to fight hunger with a donation to Feeding America.

      by MJB on Sat Nov 10, 2012 at 08:24:34 AM PST

      [ Parent ]

  •  This law needs to be expanded to all 50 states. (25+ / 0-)

    The difference between how NY and NJ worked tirelessly to enfranchise voters (military trucks as drive-by-voting booths) compared to how FL and OH worked to disenfranchise voters was striking.

    "Growing up is for those who don't have the guts not to. Grow wise, grow loving, grow compassionate, but why grow up?" - Fiddlegirl

    by progressivist on Sat Nov 10, 2012 at 08:05:57 AM PST

    •  I agree with you. (2+ / 0-)
      Recommended by:
      GrannyOPhilly, wasatch

      The specific 'covered districts', while discrimination exists in many of them, are probably somewhat quaint 40 years later--subtle discrimination can be found in any state.  And I can see the states' rights argument here.  However, eliminating Section 5 will obviously facilitate re-implementation of some of the more egregious voter-suppression tactics.

      From that Atlantic article, it sounds like the entire court (not just the conservatives) have issues with Section 5 as written today.  I don't know (legally) what is involved in extending this to all states, but it does seem like this is the right thing to have happen...

      But I hardly know anything about this stuff!

    •  How can we complain (0+ / 0-)

      about Ohio and Florida restricting early hours when New Jersey doesn't even have early voting?

      That quote about GDP by Robert Kennedy

      by erichiro on Sat Nov 10, 2012 at 01:10:23 PM PST

      [ Parent ]

  •  I would love to know why the Federal (18+ / 0-)

    Election Commission doesn't have sole jurisdiction over federal elections. I get the state's rights thing, but this is a pretty clear case of the failure of 50 seperate laws for one election.

    "The less time you have, the more you need to use it wisely." - Cpt. Avatar, Starblazers

    by DeathDlr73 on Sat Nov 10, 2012 at 08:08:12 AM PST

    •  Up! with Chris Hayes spent a good deal of the show (10+ / 0-)

      this morning on this subject - I'm sure the replay will be up on the web before too long, and it's well worth the listen.

      Melissa Harris-Perry's "letter" to Jon Husted earlier this morning was a classic as well.

      Also, a recent New Yorker article on voter "fraud" and a history of Hans von Spakovsky and his involvement.

      Hey Matalin - CNN called... you left your butterscotch schnapps at the studio.

      by here4tehbeer on Sat Nov 10, 2012 at 08:23:49 AM PST

      [ Parent ]

    •  I think it would pass constitutional muster (4+ / 0-)
      Recommended by:
      twigg, DeathDlr73, ItsSimpleSimon, tb mare

      ... if Congress passed a law creating federal-only elections and put those elections under the administration of the FEC, leaving state and local jurisdictions in charge of elections for state and local offices.

      But it would be expensive to concurrently run separate elections operated by parallel elections bureaucracies.

      Please help to fight hunger with a donation to Feeding America.

      by MJB on Sat Nov 10, 2012 at 08:28:26 AM PST

      [ Parent ]

      •  Not as expensive though (11+ / 0-)

        as electing Bush instead of Gore.

        I hope that the quality of debate will improve,
        but I fear we will remain Democrats.

        by twigg on Sat Nov 10, 2012 at 08:30:57 AM PST

        [ Parent ]

      •  Perhaps just seperate ballots available... (0+ / 0-) the same time? One for Federal issues, and another (or twelve, like CA or FL) for states issues.

        "The less time you have, the more you need to use it wisely." - Cpt. Avatar, Starblazers

        by DeathDlr73 on Sat Nov 10, 2012 at 08:36:49 AM PST

        [ Parent ]

        •  But, local ballots and machines have diff. formats (3+ / 0-)

          In California, it's not even standardized statewide -- different ballot formats in different counties.  

          The same must be true in Florida -- remember Palm Beach County's infamous 2000 "Butterfly Ballot" that confused a few thousand people who intended to vote Gore into voting Buchanan, costing Gore more than enough votes to have won Florida's electoral votes.

          To have a standardized federal election, you would pretty much have to have standardized federal ballots counted by a federal elections process, which would mean different ballots than the wide variety of ballots chosen by county elections officials.

          Please help to fight hunger with a donation to Feeding America.

          by MJB on Sat Nov 10, 2012 at 09:00:01 AM PST

          [ Parent ]

          •  That's kind of my point... (1+ / 0-)
            Recommended by:

            Let the FEC determine the federal ballot and voting standards for the federal election. With the seperate state ballots, each state could come up with their own idiocy, or just ride the coattails of the FEC's format.

            That said, there's no reason I can see for individual counties to each have their own setup for state ballots. I was under the impression each state also had their own commision. This county-by-county thing is nuts to the extreme.

            "The less time you have, the more you need to use it wisely." - Cpt. Avatar, Starblazers

            by DeathDlr73 on Sat Nov 10, 2012 at 09:13:05 AM PST

            [ Parent ]

            •  Calif. Sec. of State is in charge of elections... (2+ / 0-)
              Recommended by:
              DeathDlr73, Meteor Blades

              ... but they still let each county choose its own ballot format, voting machines, whatever.  I think that is subject to "veto" by the Secretary of State's office if it doesn't comply with certain standards, but in practice there is no vetoing and no effort to get the entire state onto the same ballot format and counting-machine type.

              That is probably a function of voting-machine firms like Diebold, spreading their lobbying money around to preserve their ability to sell competing voting machines to county election officials.

              And different counties have their own elections practices that affect voter participation.  Here in San Diego, for example, the county registrar made a huge push to make voters aware of the state law allowing any voter to vote by mail in every election, and encouraging voters to send in the vote-by-mail application and become permanent mail voters.  The result is that about 57% of San Diego county voters are vote-by-mail voters, which presumably makes San Diego voter turnout much higher than in counties that have lower mail voter participation.  

              (One side effect this year might be high Dem turnout in San Diego, leading to an upset win for the Dem candidate for SD mayor, but that's a topic for a diary or article that, perhaps, someone from Filner's campaign will eventually write.)

              So, yeah, there is a lot of non-uniformity even on a county-by-county basis.

              Please help to fight hunger with a donation to Feeding America.

              by MJB on Sat Nov 10, 2012 at 09:24:31 AM PST

              [ Parent ]

              •  The non-uniformity affecting Presidential.. (1+ / 0-)
                Recommended by:

                ...contests is what primarily concerns me. Jon Stewart put it best - the best thing about Florida's inability to get things together this year, is they luckily didn't matter.

                With 4 years to the next federal election, now is the time to start hammering out specifics. Here in MA we now have Elizabeth Warren, and something tells me standardization on a national level is an issue she would support.

                "The less time you have, the more you need to use it wisely." - Cpt. Avatar, Starblazers

                by DeathDlr73 on Sat Nov 10, 2012 at 09:44:13 AM PST

                [ Parent ]

      •  The FEC is by design, toothless and (1+ / 0-)
        Recommended by:
        tb mare

        supine.  The constitution recognizes that all elections are state elections, and provides for regulation of elections only when federal offices are being voted on.  We need a section 5 applied equally to all the states, so that renegade county election officials anywhere in the country cannot act to disenfranchise voters, either by direct voter suppression or by ballot or machine design.  Further, the shenanigans by such as the Florida state legislature with their 11 amendment ballot could be regulated, at least in elections where federal officeholders are running.  The fourteenth amendment has been gutted by the reich wing, and must be invigorated by a new judiciary, when the old Federalist Society dies out.  Scalia, Alito and Uncle Thomas have to go soon, so we can get back to honest litigation where stare decisis, and ruling on the issues presented by the parties and not selected by the court become the practice again.  The Supreme Court must again act as a court instead of a super legislator.

        Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

        by StrayCat on Sat Nov 10, 2012 at 09:07:05 AM PST

        [ Parent ]

        •  Constitution gives Congress power to regulate... (4+ / 0-)

          ... elections for federal offices.  E.g., Article I, Section 4

          The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.

          Please help to fight hunger with a donation to Feeding America.

          by MJB on Sat Nov 10, 2012 at 09:29:29 AM PST

          [ Parent ]

      •  no, no, no! (0+ / 0-)

        We DON'T want to have separate elections for state and fed!  Let the red states run their own elections and the only people left voting will be white republicans!

  •  In 2016, minorities are going to be an even (17+ / 0-)

    BIGGER portion of the electorate.  It will  be imperative that Democrats start preparing in 2013 for Section 5 to go down by the Supreme Court which means and get people registered and work on getting them the ID needed in each state for Republicans will once again try to suppress the vote (with the help of the Conservative Supreme Court).

    If this happens I fully expect minorities will be even more engaged in 2016 than 2012 for they will be pissed off (as they were in 2012).

    It will be extremely important for a Democrat to win the White House in 2016 & 2020 to CHANGE the supreme court and put more liberal justices on it.  We have to get rid of Citizen's United.

    President Obama, January 9, 2012: "Change is hard, but it is possible. I've Seen it. I've Lived it."

    by Drdemocrat on Sat Nov 10, 2012 at 08:08:43 AM PST

    •  You mean win the HOUSE in 2014 (11+ / 0-)

      We need NOT to concede the HOUSE every two years.

      To Goldman Sachs in according to their desires, From us in accordance with the IRS.

      by Bluehawk on Sat Nov 10, 2012 at 08:34:04 AM PST

      [ Parent ]

    •  DO NOT, I REPEAT DO NOT (5+ / 0-)

      wait until 2016. Sorry for the all caps but this requires all hands on deck. Prepare voters for the 2014 midterms. It's important that the last two years of Obama's 2nd term be with a Senate and House of Representatives that won't try to kneecap him at every turn.

      If SCOTUS strikes down Section 5, it would be another enabler for southern Republican fascists to make counties or cities their own little fiefdoms. They wouldn't want any more "Souls To the Polls" efforts, so I wouldn't put it past them to pass ordinances banning vehicles with more than 4 adults from showing up at polling places to vote or at state offices to register to vote. Then expect more Mike Turzai types of comments from those who try to get those laws passed.

      liberal bias = failure to validate or sufficiently flatter the conservative narrative on any given subject

      by RockyMtnLib on Sat Nov 10, 2012 at 08:59:24 AM PST

      [ Parent ]

  •  Florida is an inter-galactic scandal (11+ / 0-)
    "Florida tonight remains too close to call. So where's the good news, you say? Here it is: the election was decided without them. For once, Florida's clusterfuckery is irrelevant."
    ---Jon Stewart
    If SCOTUS wants a voting case, it should examine why the incompetent that passes for the governor of Florida cut voting days with the result that hundreds of thousands of people missed work in order to wait long hours to vote.
  •  The Supreme Court (4+ / 0-)
    Recommended by:
    Sharoney, StrayCat, wasatch, Timothy J

    will lose any vestige of respect they currently have if they dismiss the voting rights of minorities. Didn't both Alito and Roberts say at their confirmation hearings that they supported stare decisis? Can we impeach them for lying?

    Remember, you can't have crazy without az.

    by Desert Rose on Sat Nov 10, 2012 at 08:11:14 AM PST

    •  Not a sure loss (2+ / 0-)
      Recommended by:
      orlbucfan, billlaurelMD

      The Court added a reference to the 14th Amendment to the question presented. IMHO this means the Court wants to look at the Due Process issue as to whether Congress' decision to keep the VRA review process as is can be justified by the facts as they are today. Shelby County did not want the Court to consider anything but the 15th Amendment to justify Section 5. There is a great deal of data in several pre-clearance cases that have been decided since 2006 to show that Race/ethnicity is still being used by the white majority to impact minority voting rights-as found in both the Texas and S. C. Pre-clearance decisions. I think that the Roberts Kennedy bloc may be taking this case to get the big and ultimately (for the Court) highly dangerous Section 5 issue off the table.

  •  Obama may have only one pick on the Supreme (9+ / 0-)

    Court his second term (Justice Ginsburg's seat) for the conservative Justices (Scalia, Thomas, Kennedy) may try to hang on in hopes that a Republican wins in 2016.

    It will IMPERATIVE that a Democrat wins the presidency in 2016 for these conservative Justices will be that much older where they may retire.  My money is on Hillary.  

    President Obama, January 9, 2012: "Change is hard, but it is possible. I've Seen it. I've Lived it."

    by Drdemocrat on Sat Nov 10, 2012 at 08:11:19 AM PST

  •  Bravo Minnesota! (16+ / 0-)

    Both houses of the legislature now have Democratic majorities to support the Democratic governor, and the voters didn't amend the constitution to prohibit marriage equality. And now this rejection of Voter ID! Can we bottle this and send it to other states?

    -7.75, -8.10; All it takes is security in your own civil rights to make you complacent.

    by Dave in Northridge on Sat Nov 10, 2012 at 08:11:47 AM PST

  •  The 10th amendment is a solipcism (5+ / 0-)
    Recommended by:
    a2nite, RockyMtnLib, mithra, StrayCat, BYw

    It basically says that the federal government can only do what it's allowed to do. You have to refer to other parts of the constitution and centuries of case law and rulings to figure out what that means in the instance.

    On what grounds, though, do opponents of this part of Section 5 claim it to be unconstitutional, especially in light of the federal government's obligation to make sure that the 14th Amendment is properly enforced, especially its equal protection clause, as well as the 15th amendment, especially in light of the fact that state voting laws often violate it in practice? How can one truly useless amendment trump two truly significant ones? What's the rationale there, that doesn't logically devolve into "What John C. Calhoun said"?

    "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

    by kovie on Sat Nov 10, 2012 at 08:13:57 AM PST

    •  The "logical rationale" is just Brennan's Rule (0+ / 0-)

      The late Justice Brennan used to ask his incoming law clerks, "What's the most important rule of constitutional law?"  

      His answer was:  You have to have five votes to get anything done here.

      But, to be fair, under Marbury v. Madison, the SCOTUS has the authority to decide whether legislation passed by Congress is "appropriate legislation" authorized by the 14th and/or 15th Amendments, and Congress is not the sole arbiter of whether its own laws pass constitutional muster.

      Please help to fight hunger with a donation to Feeding America.

      by MJB on Sat Nov 10, 2012 at 08:33:11 AM PST

      [ Parent ]

      •  I meant the legally, not procedurally logical (0+ / 0-)

        rationale. SCOTUS can make anything constitutional if it wants to, whether or not it bases its rationale on coherent legal reasoning. E.g. Bush v. Gore.

        Also, per MvM, both congress and the executive are the presumptive, not final arbitor of what is and isn't constitutional.

        "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

        by kovie on Sat Nov 10, 2012 at 09:16:30 AM PST

        [ Parent ]

        •  Conservative legal rationale for this: (1+ / 0-)
          Recommended by:

          My guess as to the eventual legal rationale for invalidating Section 5:  

          The Court will hold that Section 5 may well have been "appropriate legislation" when first enacted, but by the time it was re-enacted by Congress in 2006, it was not "appropriate" given the scope of social and political changes in those "covered jurisdictions" that had taken place by the time of the re-enactment in 2006.  

          IMO, either Kennedy or Roberts writes that opinion, Alito joins it, Thomas writes a separate opinion concurring in the result but opining that Section 5 was always unconstitutional, and Scalia might either go with Thomas or with Kennedy/Roberts.

          Please help to fight hunger with a donation to Feeding America.

          by MJB on Sat Nov 10, 2012 at 09:40:26 AM PST

          [ Parent ]

          •  Would not a valid counterargument to that (0+ / 0-)

            be that while certainly there have been significant changes in these jurisdictions since 1965, they have not yet risen to a level and nature such as to make substantially moot the original justifications for this law--especially in light of the fact that other developments are in some ways made things worse.

            E.g. there is still disparate process and outcome of a racially discriminatory aspect. E.g. voters in predominantly black and Latino-populated precincts have much longer lines and less recourse to avoid them.

            Of course, they can say whatever they like in the actual rulings, but it's their votes that ultimately matter. But in terms of the arguments presented, I find this particular one severely wanting, in light of the actual facts that pertain to this law.

            Also, do these states need to demonstrate that the VRA places unreasonable and no longer justified burdens on their voting procedures?

            "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

            by kovie on Sat Nov 10, 2012 at 10:15:50 AM PST

            [ Parent ]

            •  That's a good argument but... (0+ / 0-)

              ... I am just trying to predict which argument will have 5 votes behind it.  And I predict (it's an easy prediction) that we will not see a majority on the current SCOTUS labelling election administration in any southern state as racially discriminatory.  Won't happen.  It's been clear for many years that the current Court will go out of its way to avoid even implying racial bias in state election administration.  

              The southern states will and do argue that the burdens of pre-clearance are unreasonable and no longer justified, and that makes their argument more appealing to the media, but the Court will almost certainly based its legal reasoning only that pre-clearance is not justified under current conditions (probably as of the renewal of the law in 2006) and therefore not "appropriate legislation" under the authority granted to Congress by the 14th and 15th Amendments.  The Court might also say that the ability of voters to challenge voting regulations in court is sufficient and further justifies removal of the federal government's ability to intervene.

              Please help to fight hunger with a donation to Feeding America.

              by MJB on Sat Nov 10, 2012 at 11:32:08 AM PST

              [ Parent ]

              •  Could it not also be argued (1+ / 0-)
                Recommended by:

                that to regularly subject the VRA to periodic judicial review unjustly disempowers the regulatory and oversight regimes presumably created by the VRA to ensure that it was not only being properly enforced, but that jurisdictions it was empowered to oversee still met the conditions justifying such regulation and oversight? I.e. is it fair and right, even constitutional, that the courts be able to review the ongoing applicability of the VRA to specific states, as opposed to in specific instances where it might be unjustly applied?

                In a sense, it's like the courts being able to say that since murders are far less common than they used to be, they no longer need to be considered illegal. An obviously exaggerated analogy, but not THAT exaggerated IMO. Is there even a meaningful standard that can be regularly applied here, or is it arbitrary? What determines whether a state is still discriminatory in elections?

                "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

                by kovie on Sat Nov 10, 2012 at 11:59:50 AM PST

                [ Parent ]

                •  Congress has only ennumerated powers (0+ / 0-)

                  The constitution has specific guidelines for the kinds of laws Congress is allowed to enact, particularly (but not exclusively) laws that might overlap with state or local jurisdiction.

                  Conservatives have recently been aggressively pushing the theory that any law passed by Congress in an area outside those specified in the constitution is unconstitutional.  That was the driving theory behind the conservative attack on Obamacare and the opinions of the four conservative justices who would have invalidated the ACA.

                  So the conservative attack on Section 5 is that Congress' only authority to pass that particular law is the "appropriate legislation" sections of the 14th and 15th Amendment, and if the Court decides that Section 5 is not "appropriate legislation" under those amendments, then the Court would find that Congress did not have authority to enact Section 5.

                  The murder analogy doesn't work because (with the exception of a very few murders that could be federal crimes) those laws are passed by state and local governments, whose ability to enact and enforce laws is not restricted by the federal constitution unless the state law encroaches on an area of exclusive federal jurisdiction (e.g. patent law or foreign affairs) or unless the state law violates individual rights such as freedom of expression or the right to a jury trial.

                  Please help to fight hunger with a donation to Feeding America.

                  by MJB on Sat Nov 10, 2012 at 02:55:46 PM PST

                  [ Parent ]

                  •  Um, elastic clause, implied powers, hello? (0+ / 0-)

                    Where have you been since the late 1700's. The enumerated powers doctrine is frankly boring and unconvincing. Where does it give congress the authority to create the Federal Reserve or Air Force for that matter in the constitution? It doesn't? Oh well, they're obviously unconstitutional then.

                    Seriously, let's not sink down to that liar Scalia's level here.

                    "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

                    by kovie on Sat Nov 10, 2012 at 04:41:01 PM PST

                    [ Parent ]

      •  "Appropriate" is not a constitutional (0+ / 0-)

        standard.  Appropriate is a legislative standard.  

        Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

        by StrayCat on Sat Nov 10, 2012 at 09:20:03 AM PST

        [ Parent ]

    •  US v Darby (0+ / 0-)

      This is a case, c 1940, that said that the 10th Amendment is a truism.
      Certainly the 10th Amendment is weaker language than the correpsonding section in the Articles of Confederation.

      Censorship is rogue government.

      by scott5js on Sat Nov 10, 2012 at 08:47:45 AM PST

      [ Parent ]

      •  Still doesn't address the merits of this case (0+ / 0-)

        Pro or con. The 10th is a meaningless basis of argument for or against pretty much everything. It's like saying that crimes are against the law and I'm for what I'm for. Or, my favorite, it is what it is. WTF does that mean?!?

        "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

        by kovie on Sat Nov 10, 2012 at 09:18:24 AM PST

        [ Parent ]

    •  Agreed, except that the tenth (3+ / 0-)
      Recommended by:
      kovie, orlbucfan, billlaurelMD

      Amendment is not useless, and can be a check on the Federal governments encroachment on state criminal law and tort law.  In addition, the state's right and duties to protect consumers should be protected against Federal intrusion by bought and paid for congresscritters, bought by the banks and payday lenders.  Not everything is interstate commerce.  The fed drug laws have evolved from assisting states in dug enforcement to dictating to states on drug criminalization and enforcement.  The Federalist Society has federalized everything, handing our governments to the corporations.  Beware of this movement, as it is corporatist, and not conservative.

      Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

      by StrayCat on Sat Nov 10, 2012 at 09:18:36 AM PST

      [ Parent ]

      •  Well, so long as we also start applying the 9th (0+ / 0-)

        amendment, which "conservatives" tend to not like or ignore, conveniently.

        Suck on that, enumerated rights (my ass) fascists.

        "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

        by kovie on Sat Nov 10, 2012 at 09:27:16 AM PST

        [ Parent ]

  •  It is clear that federal oversight is crucial (6+ / 0-)

    The last two election cycles in New Mexico, there were rumors flying because the Tea Party idiots thought some voter suppression at the polls might be a good idea.  

    Way in advance of the election, it was clear that the Feds were listening.  By Election Day there were a number of attorners who were prepared to intervene on the ground, backed up by FBI agents who were prepared to swiftly go where needed.  

    The Tea Partiers got noisy before the election, but were scared off by the real prospect of federal time in the big house if they were caught in the act of violating voters' civil rights.  

    We still need this system in place.  If states are on their own and there is no federal heat available to back up civil rights, there may not be civil rights.  

    Most likely the Roberts Court can see that the days of the 5-4 majority is numbered.  How much they will be able to do in one decision, with the potential of strong argument by Sotomayer and Kagan, et al, is a good question.  Most likely they won't be able to entirely overcome the civil rights protections for voters.

    hope that the idiots who have no constructive and creative solutions but only look to tear down will not win the day.

    by Stuart Heady on Sat Nov 10, 2012 at 08:19:07 AM PST

  •   Next Supreams:15th&19th Amendments Unconstitutal (2+ / 0-)
    Recommended by:
    a2nite, 4Freedom

    They have become a blot on democracy.

    To Goldman Sachs in according to their desires, From us in accordance with the IRS.

    by Bluehawk on Sat Nov 10, 2012 at 08:20:26 AM PST

  •  Who knows with this court but (16+ / 0-)

    let's keep reminding the country:

    We view "The Handmaid's Tale" as cautionary. The GOP views it as an instruction book.

    by Vita Brevis on Sat Nov 10, 2012 at 08:20:58 AM PST

  •  Voting rights (4+ / 0-)

    It's more clear than ever that ensuring the right to vote and making it easier to vote must become a top priority of Democrats and Progressives. Without power at the ballot box all other issues will be lost.

  •  Anyone who thinks (7+ / 0-)

    for one minute that John Roberts is going to be a new centrist justice on the court because of his ACA decision ala: Sandra Day O'conner, had best disabuse themselves of that notion that right now.
    The main reason why he made that decision was to allow him the political room to gut the voting rights act, among other things. He has made it no secret that he does not like the law. Unless Anthony Kennedy rides in to the rescue, we might as well kiss it goodbye right now.

  •  Republican Supreme Court sees the handwriting (4+ / 0-)
    Recommended by:
    a2nite, wasatch, orlbucfan, Timothy J

    on the wall now -- more democratic appointments that will change the Court's political leanings.  So they will try to jump on the voter suppression bandwagon.

  •  Thanks, Meteor Blades. I diaried this yesterday (8+ / 0-)

    but it got lost in Petraeus-mania.  Yours is more substantial anyway -- much appreciated.

    Every honest communication poses a risk that we will hear something that could challenge or change us. -- Kenneth Cloke

    by GreenMtnState on Sat Nov 10, 2012 at 08:31:36 AM PST

  •  states rights arguments (3+ / 0-)
    Recommended by:
    a2nite, mithra, Timothy J

    are a ruse for trampling on the rights of minority groups of all stripes, black, gay, latino, etc, but in the near future these arguments will be necessary for the white minority to keep getting its affirmative action ticket needed to keep that prejudiced group in positions of power & relevance, is that group dying off fast enough to save america from their fascist agenda, time will tell.

  •  The weekend before the election (5+ / 0-)

    I was part of a GOTV effort in the city of Trenton NJ. All I heard before we started is they want to take our vote away. Most people had smart phones and it was going viral. Also a picture of someone hanging Barrack Obama in effigy at a Shell Gas station was also going viral. More people voted in Trenton then 2008. We need to have an independent commission oversee all federal elections in this country. Florida is inexcusable, how the hell are we supposed to set an example for the rest of the world when we allow crap like this to go on.

    Greed, Capitalism's Achilles Heel

    by Bluescat1 on Sat Nov 10, 2012 at 08:43:06 AM PST

  •  Don't forget Ohio and PA trying to split EV (6+ / 0-)

    votes by assigning them to districts. Meaning they are going to gerrymander the EV.

  •  Of course Clarence Thomas will have no shame (1+ / 0-)
    Recommended by:

    in his ruling to end the voting rights act.

  •  Extend the Voting Rights Act. (1+ / 0-)
    Recommended by:

    Why should it apply only to states in the old Jim Crow belt, given that states outside that belt are starting to show skill in voter suppression?

    "Politics should be the part-time profession of every citizen who would protect the rights and privileges of free people and who would preserve what is good and fruitful in our national heritage." -- Lucille Ball

    by Yamaneko2 on Sat Nov 10, 2012 at 08:57:52 AM PST

  •  be prepared (0+ / 0-)

    Smart strategy for Dems would be to now start getting photo ids for non drivers--before the next election rush begins.  We're gonna lose in the Supreme Court probably, and this id proof will thwart the evils.  The other thing I want is for minorities to get gun permits--maybe they can be used for voter id--but,even if not, states rights nuts don't want to see brothers and sisters with rifles walking down the street.  I do.

    Apres Bush, le deluge.

    by melvynny on Sat Nov 10, 2012 at 09:05:52 AM PST

  •  Voter suppression tactic based on another myth (3+ / 0-)
    Recommended by:
    wasatch, Timothy J, billlaurelMD

    that the Right believes. Namely, the target voters to be suppressed are lazy and stupid.  Republicans believed that myth to such an extent, they thought making voting difficult would dissuade the 'lazy' people from voting.

    Here's a clue Republicans: People are not lazy. Give them an opportunity and a job, and they're hard workers.

    "Those who can make you believe absurdities, can make you commit atrocities" Voltaire.

    by JWK on Sat Nov 10, 2012 at 09:07:10 AM PST

  •  Democrats should propose legislation (4+ / 0-)

    to strengthen voting rights and nationalize election standards in 2013. Even if a Senator threatens to filibuster it and even if it has a 0% chance of making it out of the House.

    Go on offense. Make Republicans defend voter suppression. We must dictate the framing of the issue. Don't let Republicans distract with "voter fraud" or with the red herring "You have to show an ID to buy a plane ticket, why shouldn't you have to in order to vote?" Make the focus be voter suppression. and denial of civil rights.  Even if Committee Chairs don't let those laws get to first base, bring them up again and again. Get the national conversation going on this. President Obama's declaration that "we gotta fix that" should be a signal to us to get to work on it.

    liberal bias = failure to validate or sufficiently flatter the conservative narrative on any given subject

    by RockyMtnLib on Sat Nov 10, 2012 at 09:12:25 AM PST

  •  Re: Garrett Epps: (1+ / 0-)
    Recommended by:

    "Congress has reauthorized the VRA, most recently in 2006, by a vote of 390 to 33 in the House, and 98 to 0 in the Senate."
    If anone is elected to anything with those numbers, hey, presto! It's a mandate.  I'm not completely convinced, yet, that SCOTUS will re-legislate.

    Fuck Big Brother...from now on, WE'RE watching.

    by franklyn on Sat Nov 10, 2012 at 09:28:03 AM PST

  •  Good post yesterday with some ideas (1+ / 0-)
    Recommended by:
    Eric Nelson

    This is going to be one of my issues to focus on now that this election is over, and this post by Greg Sargent has some ideas for what Obama/Dems and we can do on a federal level.

    "They have tried to sell us this trickle-down, tax-cut fairy dust before. And guess what? It does not work. It didn't work then, it won't work now." --Barack Obama

    by lizah on Sat Nov 10, 2012 at 10:21:37 AM PST

  •  But Florida's Secretary of State said.. (1+ / 0-)
    Recommended by:
    Eric Nelson
    ..for the first time ever voters could vote during the day for 12 hours during the day, and I can tell you I heard feedback from voters going into election day that they liked the opportunity to vote either in the morning before work or after work. And frankly, I think the turnout is a good representation of the fact that people liked the voting hours and the flexibility that the supervisors had..
    The long lines were proof positive that the hours and access were just the right height?

    Perhaps one day the Fourth Estate will take their jobs seriously. Or not..

    by Anthony Page aka SecondComing on Sat Nov 10, 2012 at 10:27:18 AM PST

  •  Time to Correct the Elections (1+ / 0-)
    Recommended by:

    After the 2008 elections, I suggested that the Obama Administration immediately get to work prosecuting election fraud (caging and other voter suppression efforts) that we saw rampant in that election. The Holder Department totally dropped that ball.

    Did they learn their lesson?

    I doubt it. But it isn't just the Justice Department that can do something about this. It's time that Congress set standards for federal elections.

    We think of voting as only the province of counties or maybe states, and traditionally they have set all the rules. But the Constitution specifically provides for Congress to set the rules:

    The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
    [Article I, Section 4, Clause 1] (emphasis added)

    as well as

    Each House shall be the Judge of the Elections [and] Returns and Qualifications of its own Members.
    [Article I, Section 5, Clause 1]

    In other words, it's the responsibility of Congress to fix this problem. And it is high time.

    Dear Legislators: Here's what I want to see:

    (1) A national voter ID that is automatically issued to anyone who has ever voted in a national election. All states would be required to accept this as ID for the purposes of voting for any candidate for national office.

    (2) Standardized dates and times for early voting that start at the beginning of October and end on election day and that require the board of election offices to be open for people to vote that include at least 12 hours per day on weekdays and at least 8 hours a day on Saturdays.

    (3) Standardized vote by mail so that all voters can vote by mail and send in their ballots up to three weeks before election day.

    (4) Standardized election district criteria that require districts to have balanced representation where the difference between registered members of the two largest parties be no more than 5 percentage points.

    This will eliminate most voter suppression and a lot of jerrymandering. It will ensure that people who don't have drivers licenses or were born without birth certificates will not be disenfranchised. It will override prejudice-based efforts to keep one group out of the polls.

    Let's fix this problem before the 2016 elections.

  •  We must pass laws at every level to insure that (0+ / 0-)

    we can all vote.  Florida, the Sunshine-Suppression capitol of the US could not count votes in 3 counties today so they could not deliver their vote totals by 12noon which is the law in Florida.  Just think if we needed to have these counties report if they were to decide the election and that could happen and did happen with Bush-Gore.  NO MORE LINES AT VOTING STATIONS:  LET US VOTE!!!!!  It does look like we the people will vote if we must fight the GOP bigots who do this every election cycle, but they are weakening our system by making  their brand stinking with bias, so who of the new voters will ever trust them.

  •  hmm (0+ / 0-)

    Well, we know how Scalia and Thomas will vote. the votes of the justices who actually THINK will be the ones that matter, and beyond 3 or 4 of them, who can be sure?

  •  Silver linings galore.. (0+ / 0-)

    The silver lining of the voter suppression efforts by the Republicans in this last election are many. For one, it inspired by fear/anger many people to vote and stand in long lines, especially minorities. Secondly, the rather overt efforts to suppress votes were just in time for this Supreme Court case, thereby proving (hopefully) that such discrimination and dirty play is far from over in this country! This gives the court reasons to uphold the law (as disheartening as it is to have to defend such a law!)

  •  you know which states didn't try to suppress... (0+ / 0-)

    ....the vote?  the ones under jurisdiction in Section 5.  the ones currently listed may be trying their luck with the Supreme Court but i believe a few other states need to be added to that list.  i'm looking at you Ohio, Florida, and Pennsylvania.

    I'm a blue drop in a red bucket.

    by blue drop on Sat Nov 10, 2012 at 03:03:32 PM PST

  •  Can I just say this? (0+ / 0-)

    I hope and pray that all those folk who had to spend so much time and effort just to vote, understand that their franchise depends on turning out for mid term elections, not just for presidential elections.  And voting in state elections to put and keep democrats in their state governments, every chance they get.  Republicans have amply demonstrated that they will grab every opportunity to deprive them of their right to vote, the only way to keep it is to USE it.  Every time. President is important.  State Gov't is MORE important, because they're the ones with the power to make the rules for voting.

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