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President Johnson signs the Voting Rights Act of 1965
President Johnson signs the Voting Rights Act of 1965
Four years ago, the Supreme Court punted on whether Section 5 of the Voting Rights Act of 1965 was constitutional, uniting behind the chief justice in an 8-1 decision on statutory grounds which delayed resolution of the key question. The Court strongly suggested to Congress that it was time to update the criteria for deciding which jurisdictions must submit their elections changes to DOJ for approval, which Congress chose not to do when reauthorizing the Act in 2006, noting:
[A] departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.

... The evil that §5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions. For example, the racial gap in voter registration and turnout is lower in the States originally covered by §5 than it is nationwide. Congress heard warnings from supporters of extending §5 that the evidence in the record did not address "systematic differences between the covered and the non-covered areas of the United States[,] ... and, in fact, the evidence that is in the record suggests that there is more similarity than difference."

Well, Congress didn't act, and so Wednesday morning, the Supreme Court heard arguments in a new case, Shelby County, Alabama v. Holder, which now may force the issue.

And as you may have seen from the early tweets and articles, it again doesn't look good for the defenders of the VRA. The chief justice, who four years ago held together the Court (save Thomas) to preserve the Act, was sharply skeptical, and Justice Kennedy was ... Justice Kennedy. Below the fold, some key excerpts from the transcript which may reveal where the key justices are on this issue.

First off, let's be clear: I am not worried about whether Justices Breyer, Ginsburg, Kagan or Sotomayor will uphold the VRA's constitutionality. There's no need to focus on them here. But they need a fifth vote.

Will it come from the on-the-one-hand-but-then-again-on-the-other jurisprudence of Justice Kennedy, who is not as swing-y on racial issues as he is on others? Well, maybe, based on his skepticism as to whether plaintff Shelby County, Alabama, would ever not be covered by Congress:

JUSTICE KENNEDY: I suppose the thrust of the questions so far has been if you would be covered under any formula that most likely would be drawn, why are you injured under this one?

MR. REIN: Well, we don't agree that we would be covered under any formula.

JUSTICE KENNEDY: But that's -- that's the hypothesis. If you could be covered under most suggested formulas for this kind of statute, why are you injured by this one? I think that's the thrust of the question.

On the other hand, maybe the Act needs updating:
JUSTICE KENNEDY: This reverse engineering that you seem so proud of, it seems to me that that obscures the -- the real purpose of -- of the statute. And if Congress is going to single out separate States by name, it should do it by name. If not, it should use criteria that are relevant to the existing -- and Congress just didn't have the time or the energy to do this; it just reenacted it.

GENERAL VERRILLI: I think the -- the formula was -- was rational and effective in 1965. The Court upheld it then, it upheld it three more times after that.

JUSTICE KENNEDY: Well, the Marshall Plan was very good, too, the Morale Act, the Northwest Ordinance, but times change.

And further:
JUSTICE KENNEDY: But if -- if Alabama wants to have monuments to the heros of the Civil Rights Movement, if it wants to acknowledge the wrongs of its past, is it better off doing that if it's an own independent sovereign or if it's under the trusteeship of the United States Government?
The chief justice, possibly our best bet to be the fifth vote, is skeptical about whether the current VRA formula reflects the states which are problematic:
CHIEF JUSTICE ROBERTS: Just to get the -do you know which State has the worst ratio of white voter turnout to African American voter turnout?

GENERAL VERRILLI: I do not.

CHIEF JUSTICE ROBERTS: Massachusetts. Do you know what has the best, where African American turnout actually exceeds white turnout? Mississippi.

GENERAL VERRILLI: Yes, Mr. Chief Justice. But Congress recognized that expressly in the findings when it reauthorized the act in 2006. It said that the first generation problems had been largely dealt with, but there persisted significant -

CHIEF JUSTICE ROBERTS: Which State has the greatest disparity in registration between white and African American?

GENERAL VERRILLI: I do not know that.

CHIEF JUSTICE ROBERTS: Massachusetts. Third is Mississippi, where again the African American registration rate is higher than the white registration rate.

And later on, in questioning the solicitor general during his defense of the VRA:
CHIEF JUSTICE ROBERTS: General, is it -- is it the government's submission that the citizens in the South are more racist than citizens in the North?

GENERAL VERRILLI: It is not, and I do not know the answer to that, Your Honor, but I do think it was reasonable for Congress --

CHIEF JUSTICE ROBERTS: Well, once you said it is not, and you don't know the answer to it.

GENERAL VERRILLI: I -- it's not our submission. As an objective matter, I don't know the answer to that question. But what I do know is that Congress had before it evidence that there was a continuing need based on Section 5 objections, based on the purpose-based character of those objections, based on the disparate Section 2 rate, based on the persistence of polarized voting, and based on a gigantic wealth of jurisdiction-specific and anecdotal evidence, that there was a continuing need.

CHIEF JUSTICE ROBERTS: A need to do what?

GENERAL VERRILLI: To maintain the deterrent and constraining effect of the Section 5 preclearance process in the covered jurisdictions, and that -

CHIEF JUSTICE ROBERTS: And not -- and not impose it on everyone else?

Ditto, Justice Alito:
JUSTICE ALITO: There is no question that the Voting Rights Act has done enormous good. It's one of the most successful statutes that Congress passed in the twentieth century and one could probably go farther than that. But when Congress decided to reauthorize it in 2006, why wasn't it incumbent on Congress under the congruence and proportionality standard to make a new determination of coverage? Maybe the whole country should be covered. Or maybe certain parts of the country should be covered based on a formula that is grounded in up-to-date statistics.

But why -- why wasn't that required by the congruence and proportionality standards? Suppose that Congress in 1965 had based the coverage formula on voting statistics from 1919, 46 years earlier. Do you think Katzenbach would have come out the same way?

How was Justice Scalia? Sarcastic, as usual:
JUSTICE SCALIA: Indeed, Congress must have found that the situation was even clearer and the violations even more evident than originally, because originally, the vote in the Senate, for example, was something like 79 to 18, and in the 2006 extension, it was 98 to nothing. It must have been even clearer in 2006 that these States were violating the Constitution. Do you think that's true?

MR. REIN: No. I think the Court has to -

JUSTICE KAGAN: Well, that sounds like a good argument to me, Justice Scalia. It was clear to 98 Senators, including every Senator from a covered State, who decided that there was a continuing need for this piece of legislation.

JUSTICE SCALIA: Or decided that perhaps they'd better not vote against it, that there's nothing, that there's no -- none of their interests in voting against it.

A notion he expanded on at great length later when questioning lecturing the solicitor general:
JUSTICE SCALIA: ...This Court doesn't like to get involved in -- in racial questions such as this one. It's something that can be left -- left to Congress.

The problem here, however, is suggested by the comment I made earlier, that the initial enactment of this legislation in a -- in a time when the need for it was so much more abundantly clear was -- in the Senate, there -- it was double-digits against it. And that was only a 5-year term.

Then, it is reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it.

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.

I don't think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless -- unless a court can say it does not comport with the Constitution. You have to show, when you are treating different States differently, that there's a good reason for it.

That's the -- that's the concern that those of us who -- who have some questions about this statute have. It's -- it's a concern that this is not the kind of a question you can leave to Congress. There are certain districts in the House that are black districts by law just about now. And even the Virginia Senators, they have no interest in voting against this. The State government is not their government, and they are going to lose -- they are going to lose votes if they do not reenact the Voting Rights Act.

Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?

As for Justice Thomas:
""
Justice Thomas did not speak during oral argument, but made clear in his 2009 dissent in NAMUDNO that he believes Section 5 to be unconstitutional.

As for what a decision striking Section 5 might look like, and what Congress might do in response, Rick Hasen has laid out some options, as have other voting rights experts.

Originally posted to Adam B on Wed Feb 27, 2013 at 12:07 PM PST.

Also republished by Discussing The Law: TalkLeft's View On Law and Politics and Daily Kos.

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Comment Preferences

  •  There's only one real funny today (69+ / 0-)

    Rebuttal argument of Shelby County's attorney:

    JUSTICE KAGAN: -- that is the question, isn't it? You said the problem has been solved. But who gets to make that judgment really? Is it you, is it the Court, or is it Congress?

    MR. REIN: Well, it is certainly not me.

    (Laughter.)

    JUSTICE SCALIA: That's a good answer. I was hoping you would say that.

    •  Because Scalia believes legislative power is his (20+ / 0-)

      All hail Emperor Scalia

      Scalia signaled that he fears Section 5 will be repeatedly reauthorized into perpetuity, regardless of whether it’s justified, unless the courts step in.

      “This is not the kind of question you can leave to Congress,” he said.

      "Do what you can with what you have where you are." - Teddy Roosevelt

      by Andrew C White on Wed Feb 27, 2013 at 12:23:55 PM PST

      [ Parent ]

      •  Scalia is for judicial restraint, except when he's (3+ / 0-)
        Recommended by:
        Jeff Y, radarlady, StrayCat

        not.  Here he is on the subject in 2005:

        If you think aficionados of a living Constitution want to bring you flexibility, think again,” Scalia told an audience at the Woodrow Wilson Center, a Washington think tank. “You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That’s flexibility.” “Why in the world would you have it interpreted by nine lawyers?”
        There's an interesting contrast between that viewpoint and the one espoused today.  Then again, he was always a state's rights advocate until a presidential candidate on whose legal team his sons were working came to the SCOTUS.  Consistency isn't exactly his strong suit.

        Some men see things as they are and ask why. I dream of things that never were and ask why not?

        by RFK Lives on Wed Feb 27, 2013 at 07:18:49 PM PST

        [ Parent ]

        •  Scalia just makes up shit depending on which (4+ / 0-)

          way the (right wing) political winds are blowing at the time. And if his ruling happens to be the complete opposite of all of his past rulings, he just claims that his thinking has "evolved".

          Scalia doesn't deserve to sit on a childrens Kangaroo Court, let alone the Supreme Court.

          "Load up on guns, bring your friends. It's fun to lose and to pretend." - Kurt Cobain

          by Jeff Y on Wed Feb 27, 2013 at 11:15:34 PM PST

          [ Parent ]

      •  The right to vote AND the obligation to ALLOW ... (1+ / 0-)
        Recommended by:
        Andrew C White

        ... qualified citizens to vote - in fact, the moral obligation to make it EASY for citizens to vote - is very much a legislative question. In fact, it is a legislative imperative. AND, Mr. Justice Scalia, it is a judicial imperative as well.

        Scalia's quoted diatribe shows how very far off the reasonable and judicious he travels. "It's been written about?" is the source of his jurisprudence? "There are black districts by law just about now" is because of ... what, again? And the logic that says reenacting a law, especially unanimously (as in the US Senate) and its "wonderful" title is proof that the Supreme Court should declare it - what, unconstitutional as beyond the wisdom of Congress? Or its powers?

        Justice Scalia used to be a smart man in the service of a cause, and deviously artful in his thinking and writing. Now, by his belligerent temperament and his utter facile illogic, he makes the case for those who are his opponents.

        2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

        by TRPChicago on Thu Feb 28, 2013 at 06:17:04 AM PST

        [ Parent ]

  •  I don't know why they can bring (2+ / 0-)
    Recommended by:
    radarlady, StrayCat

    a facial challenge.  My only hope is the Justices kick the can again.  The mere fact of preclearance is not any kind of injury, I don't think.  I could only see that if there were some legislation that the Court would ultimately uphold but which was delayed because preclearance was denied, like photo ID or some redistricting.  

    But, yeah, you never want to be in a position of defending Boston's racial history.  Clearly a question for Congress, however, especially since the empowering amendment, the 15th, altered the federal/state balance.  I'd love it if Pennsylvania had to get preclearance.

    Difficult, difficult, lemon difficult.

    by Loge on Wed Feb 27, 2013 at 12:19:21 PM PST

  •  As long as Scalia is going to arogate the right (19+ / 0-)

    of legislation from Congress to the court

    http://tpmdc.talkingpointsmemo.com/...

    Scalia signaled that he fears Section 5 will be repeatedly reauthorized into perpetuity, regardless of whether it’s justified, unless the courts step in.

    “This is not the kind of question you can leave to Congress,” he said.

    Despite the amendments clear and specific language:

    http://editors.talkingpointsmemo.com/...

    Compare and contrast.
    1. Justice Scalia today regarding the voting rights act: “This is not the kind of question you can leave to Congress.”

    2. The United States Constitution, Amendment XV: “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.” (My emphasis.)

    Then I would agree that section 5 should be extended to include all jurisdictions with the country and not just a handful of leftovers singled out in 1965. Given recent Republican attempts at gaming election law I think it best that this be reviewed everywhere in the spirit and letter of equal protection.

    "Do what you can with what you have where you are." - Teddy Roosevelt

    by Andrew C White on Wed Feb 27, 2013 at 12:22:13 PM PST

    •  The 15th Amendment isn't a blank check (0+ / 0-)

      Although it's been treated as such in the past.  

      •  Of course not (11+ / 0-)

        but when Scalia says "This isn't something you leave to congress" and the amendment says specifically that congress shall have the power... well... Mr. Activist Justice Scalia looks like an emperor with no clothes.

        "Do what you can with what you have where you are." - Teddy Roosevelt

        by Andrew C White on Wed Feb 27, 2013 at 01:32:53 PM PST

        [ Parent ]

        •  The drone-like m.o. of this Court, aimed at (0+ / 0-)

          Congress, if there's Constitutional text so much the better target. Congress could plausibly add exceptions clause language to the responsive legislation to preclude further appellate review.

      •  Actually, when it comes to protecting voter rights (4+ / 0-)
        Recommended by:
        LordMike, shanikka, radarlady, gratis4

        ...it is a blank check.

        •  Yeah, in what way is it _not_ a blank check? (0+ / 0-)

          I mean, honestly, that amendment is a little scary, and would seem to actually authorize Congress to do all sorts of things we don't actually want it to be able to do.

          For example, as it was passed after the first amendment, it appears to, theoretically, allow Congress to make laws infringing on freedom of speech, as long as those laws in stop black people from being denied the right to vote.

          This, obviously, would be stupid, but it appears to the only logical way for the constitution to work, that later amendments have to override the earlier amendments or the original text. (Otherwise they don't do anything at all!)

          It's worth pointing out under the fifteenth amendment, we stopped states from electing members of Congress until they specifically did something. If we have the power to do that, we sure as fuck can make them ask for permission to change specific rules.

          I guess there is some sort of 'due process' argument that this thing is actually a bill of attainder, it is penalizing specific places without any due process of law. Except that, uh, states are not granted any rights of trial by jury, bills of attainder against jurisdictions are legal(And I find it odd the proposed 'solution' is to call them out by name. Huh?), and there was due process, it's called 'holding hearings when crafting the law'. This theory seems strangely dubious, especially as there's absolutely no evidence that the places in the lawsuit have gotten better. (In fact, they have gotten worse since the law was passed. Remember, it was passed in 2006.)

    •  “This is not the kind of question (3+ / 0-)
      Recommended by:
      DSPS owl, LordMike, radarlady

      you can leave to Congress.”  ????

      This man does not understand the constitution.

      No matter how cynical you get, it is impossible to keep up.--Lily Tomlin

      by Desert Rose on Wed Feb 27, 2013 at 06:27:10 PM PST

      [ Parent ]

      •  Oh, he understands the Constitution perfectly well (1+ / 0-)
        Recommended by:
        StrayCat

        he just doesn't agree with it, that's all, and he (along with Roberts. Alito, and Thomas) is uniquely in a position to do something about it.

        That having been said, there is a tiny non-Constitutional point that's getting lost here, namely, that Congress is sitting on its hands in all this. Sure, they voted to reauthorize the Act, because that's the path of least resistance. But, they won't act to expand voting rights because [1] many of them think brown people have too many rights already, [2] many of them have enough constituents in their districts, that think brown people have enough rights already,  whose votes they need to get reelected, or [3] for many, it simply doesn't register on their personal world-view as important. So Congress is refusing to do its Constitutionally mandated work. That's no excuse for what Scalia really wants to do, of course, but, if Congress had done its job and strengthened voting rights protections for the whole country (here's looking at you, Ohio), he at least couldn't have thrown this statement out there with a microscopic nugget of truth inside.

        Radarlady

  •  Roberts' point about Mississippi (13+ / 0-)

    only proves the important and efficacy of section 5.  

    As for discrimination, that's not the issue.  The VRA didn't come in because there were more bigots in the south.  It came in because only the south continued to operate under Jim Crow laws up until the year before the VRA was enacted.  After a century of apartheid, the Supreme Court has no business taking it upon itself to declare that less than half a century of preclearance is enough.

    www.buonoforgovernor.com

    by Paleo on Wed Feb 27, 2013 at 12:32:57 PM PST

  •  What was the Morale Act? (2+ / 0-)
    Recommended by:
    Adam B, cosette

    I seem to have missed that one, and a quick google wasn't any help.

    “What’s the use of having developed a science well enough to make predictions if, in the end, all we’re willing to do is stand around and wait for them to come true?” - Sherwood Rowland

    by jrooth on Wed Feb 27, 2013 at 12:34:00 PM PST

  •  Or perhaps Justice Scalia (5+ / 0-)
    JUSTICE SCALIA: Indeed, Congress must have found that the situation was even clearer and the violations even more evident than originally, because originally, the vote in the Senate, for example, was something like 79 to 18, and in the 2006 extension, it was 98 to nothing. It must have been even clearer in 2006 that these States were violating the Constitution. Do you think that's true?
    They determined that this was good legislation with a proven track record of working.

    And perhaps Chief Justice Roberts

    CHIEF JUSTICE ROBERTS: Massachusetts. Do you know what has the best, where African American turnout actually exceeds white turnout? Mississippi.

    ...

    CHIEF JUSTICE ROBERTS: Massachusetts. Third is Mississippi, where again the African American registration rate is higher than the white registration rate.

    This is the evidence as to why they think it is good legislation with this proven track record.

    "Do what you can with what you have where you are." - Teddy Roosevelt

    by Andrew C White on Wed Feb 27, 2013 at 12:43:03 PM PST

    •  The answer: (0+ / 0-)
      JUSTICE SCALIA: Indeed, Congress must have found that the situation was even clearer and the violations even more evident than originally, because originally, the vote in the Senate, for example, was something like 79 to 18, and in the 2006 extension, it was 98 to nothing. It must have been even clearer in 2006 that these States were violating the Constitution. Do you think that's true?
      YES, you idiot. The country as a whole understands more, or at least agrees more, that there is racial discrimination in voting access in the south and that it should be stopped.

      He didn't ask if there was more violations, which admittedly there are not. But those violations that continue are no longer acceptable by anyone, and hence almost no one in Congress opposed legislation to fight them.

      I know Scalia was trying to score points by correctly asserting that the problems were less now than they were then, but that has little to do with why we make laws about something. The only conclusion that can be drawn because more people voted for it is that more people in Congress think it's an actual problem. (Or, rather, they think the people who elect them think it's an actual problem.)

  •  And what do you base this... (4+ / 0-)
    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.
    ... Justice Scalia? Can you cite examples to back up your opinion here? Historical? Legislative? Judicial? In this country... or horror of horrors... some other country whose example we should learn from?

    Are you perhaps referring to the 3/5's clause and how difficult it was to get out of it by normal political processes (never mind Clauswitz's opinion on what constitues normal political processes)?

    "Do what you can with what you have where you are." - Teddy Roosevelt

    by Andrew C White on Wed Feb 27, 2013 at 12:47:28 PM PST

  •  More, from Hasen: (11+ / 0-)

    I agree with all of this:

    First, there's the issue of respect for the Supreme Court. In the conservative Justices' minds, there seems no doubt that the Court is miffed that Congress didn't fix the Act's (in their view) outdated coverage formula after NAMUDNO. Justice Kennedy seems to think the reason Congress didn't update in the first place is that they didn't want to take the time or were too lazy.  That's not it at all---it is that it is hard to come up with a politically acceptable new coverage formula which would pass in the current Congress. ....Congress had four years to react to NAMUDNO and did nothing.

    Second, the real action here in this case is with Chief Justice Roberts or Justice Kennedy. (Alito and Scalia expressed clear hostility to the law, and Thomas already in NAMUDNO said it was unconstitutional.) The thought that the Chief Justice would blink (or be a "stateman") not once (in NAMUDNO), not twice (in the health care case), but thrice in four years seems unbelievable. And this is Roberts' signature issue.  Remember, he's the Justice who said that it is "a sordid business" to divvy people up by race, and that "the way to stop discriminating on the basis of race is to stop discriminating on the basis of race."  Since he was in the Reagan administration he's supported a weakened Voting Rights Act.  And now he's given Congress time to fix the problem and they haven't.

    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. ...

    The one area of hope which some observers see from Justice Kennedy in today's oral argument is the suggestion that even if the Act is not constitutional as to some covered jurisdictions, Alabama would be covered under any provision of the Act. I think people are overreading this exchange. Justice Kennedy did not seem convinced---it seems more likely he would buy Justice Scalia's point that if Congress wants to cover Alabama, let it pass a statute covering Alabama and then justify it.
    /blockquote>

  •  Judicial Activism-Republican Style. (8+ / 0-)

    I hope they do the least harm, but I cannot say that I am hopeful of that. Perhaps an unfavorable ruling will further illustrate just how reactionary this present bunch happens to be.

    At the very least, I think an unfavorable ruling will mean that the SCOTUS will be a liability for the Republican Party in a way that it has not been in a very long time.

    "There is nothing more dreadful than the habit of doubt. Doubt separates people. It is a poison that disintegrates friendships and breaks up pleasant relations. It is a thorn that irritates and hurts; it is a sword that kills.".. Buddha

    by sebastianguy99 on Wed Feb 27, 2013 at 01:02:02 PM PST

  •  Hmmmmm... so where do you think black people feel (13+ / 0-)

    their voting would make the least possible difference in electoral outcomes?  Could it be.... Massachusetts, generally a solidly blue state?

    The law is not about whether or not people register, whether or not people vote.  It's about barriers being put up to prevent them from doing so, and allowing the federal government to check in advance whether or not such barriers are being created by a proposed change, before it alters the outcomes of elections, not after, when it's too late.

    •  Most DOJ objections to electoral actions (0+ / 0-)

      in Texas lately cites discriminatory behavior regarding the voting rights of Latinos, or Mexican-Americans, or Hispanics - whatever you want to call American citizens who are brown and whose ancestry traces back to a country in which Spanish was the predominate language.

      "In this world of sin and sorrow there is always something to be thankful for; as for me, I rejoice that I am not a Republican." - H. L. Mencken

      by SueDe on Wed Feb 27, 2013 at 07:55:16 PM PST

      [ Parent ]

    •  This. I wish you had been arguing the government's (0+ / 0-)

      side today.

      Based on the transcripts above, the Solicitor General doesn't seem to have been well prepared.

  •  I am a southern white woman and I KNOW (19+ / 0-)

    without the voting rights protection...the minorities WILL
    be  disenfranchised at every turn.   Predjudice and JIM CROW still exists.   Anyone who think it does not, does not know the south and 20 miles in any direction outside the urban areas and you get Gone with the Wind.

    We the People have to make a difference and the Change.....Just do it ! Be part of helping us build a veteran community online. United Veterans of America

    by Vetwife on Wed Feb 27, 2013 at 03:20:38 PM PST

  •  More proof judicial conservatism is a sham. (10+ / 0-)

    Nothwithstanding years of whining about "activist liberal judges" who substitute their whims for the wisdom of Congress and state legislatures, these hypocrites are fully prepared to disregard not only the (98-0) will of Congress but also its own (selectively sacrosanct) precedents to gut a long-established statute simply because they "know" that there are no racists left in the South.

    This is why I stick to bankruptcy law, where no one pretends we're talking about anything other than money.

  •  Hard to imagine a more consequential bad (7+ / 0-)

    decision (though some are equal).

    This engine goes in reverse. How many did the 15th Amendment go unenforced before we undid the compromise of 1877?

    Bill Rehnquist laughs from the grave (the original sin being Bush v. Gore).

    If Justice Scalia would prefer to host a right wing talk show, he should resign.

    Ok, so I read the polls.

    by andgarden on Wed Feb 27, 2013 at 04:46:17 PM PST

  •  I think when you're getting on 50 years... (3+ / 0-)
    Recommended by:
    JML9999, Be Skeptical, radarlady

    ...you're getting away from an empirical claim and you're getting towards a historical-stain claim, and I'm not at all surprised the Court is reluctant to embrace that.  I'm reluctant to embrace it  

    You know, I sometimes think if I could see, I'd be kicking a lot of ass. -Stevie Wonder at the Glastonbury Festival, 2010

    by Rich in PA on Wed Feb 27, 2013 at 06:24:58 PM PST

    •  Then again there are the Skull fractures (3+ / 0-)
      Recommended by:
      TDDVandy, Just Bob, radarlady

      in Congressman John Lewis(D-GA)'s X-Rays

      I want 1 less Tiny Coffin, Why Don't You? Support The President's Gun Violence Plan.

      by JML9999 on Wed Feb 27, 2013 at 06:29:54 PM PST

      [ Parent ]

      •  That's not what you'd call a legal argument. (3+ / 0-)
        Recommended by:
        JML9999, Be Skeptical, radarlady

        Or are you suggesting that when John Lewis dies, Section 5 can safely be eliminated?  No, I didn't think so.

        You know, I sometimes think if I could see, I'd be kicking a lot of ass. -Stevie Wonder at the Glastonbury Festival, 2010

        by Rich in PA on Wed Feb 27, 2013 at 06:39:38 PM PST

        [ Parent ]

        •  His skull is "empirical claim" (0+ / 0-)

          Then again so are 2012 Laws in PA,OH,WI,MI etc

          If anything it boils down to 14th amendment.  Expand Sect 5 to cover the entire country or strike it down..

          I want 1 less Tiny Coffin, Why Don't You? Support The President's Gun Violence Plan.

          by JML9999 on Wed Feb 27, 2013 at 06:44:33 PM PST

          [ Parent ]

    •  Except that (8+ / 0-)

      you know, we have recent efforts to disenfranchise minority voters and all that.

      Besides, saying the Voting Rights Act is no longer necessary is like saying your car's brakes are no longer necessary because you haven't had an accident in 10 years.

      28, white male, TX-26 (current), TN-09 (born), TN-08 (where parents live now)

      by TDDVandy on Wed Feb 27, 2013 at 06:34:19 PM PST

      [ Parent ]

      •  But those efforts go beyond the South. (2+ / 0-)
        Recommended by:
        Be Skeptical, Jahiegel

        All Republican-governed states with non-trivial minority populations are now trying to disenfranchise minority voters.  So that's not a case for continuing preclearance for Southern states.

        You know, I sometimes think if I could see, I'd be kicking a lot of ass. -Stevie Wonder at the Glastonbury Festival, 2010

        by Rich in PA on Wed Feb 27, 2013 at 06:37:35 PM PST

        [ Parent ]

        •  Seems to be (7+ / 0-)

          more of a case for requiring preclearance across the board than anything else.

          28, white male, TX-26 (current), TN-09 (born), TN-08 (where parents live now)

          by TDDVandy on Wed Feb 27, 2013 at 06:39:45 PM PST

          [ Parent ]

        •  Preclearance is not restricted to (3+ / 0-)

          Southern states, but Southern states represented the preponderance of jurisdictions covered by Section 5 as a result of those locations being the most egregious examples of discrimination when the original Act was passed.

          Section 5 allows for exemption from DOJ oversight - and the exemption requirements have been updated twice since the Act was initially passed.  Over 200 jurisdictions have already provided evidence that discrimination has ended in those jurisdictions and have subsequently been exempted from DOJ oversight.

          The ability to be exempted would seem to negate your assertion of a "historical-stain claim" unless it has been justly earned by ongoing discriminatory offenses in  jurisdictions still covered by Section 5.

          "In this world of sin and sorrow there is always something to be thankful for; as for me, I rejoice that I am not a Republican." - H. L. Mencken

          by SueDe on Wed Feb 27, 2013 at 08:23:56 PM PST

          [ Parent ]

          •  In a way (0+ / 0-)

            this all seems similar to the school desegregation cases that proliferated from the 1960s up until the last decade (some of them are probably still ongoing, though the Bush administration ended a lot of them.)  Basically, a federal court had oversight of a school district that had had a problem with desegregating its schools, right down to reviewing the smallest change to school attendance zones (and the opening of new schools.)  But the cases would be dismissed once it became clear that there was no reason that the court no longer needed to oversee the district.

            Under Bush, though, many school desegregation cases were dismissed largely at random.

            28, white male, TX-26 (current), TN-09 (born), TN-08 (where parents live now)

            by TDDVandy on Wed Feb 27, 2013 at 10:04:58 PM PST

            [ Parent ]

      •  The problem I see is that there is a legitimate (6+ / 0-)

        question as to whether the formulae used to include states in the pre-clearance requirement is still up-to-date, largely because the drafters of the original bill did not think to include (or perhaps were unable to include) a mechanism by which problem states such as Wisconsin or Michigan or individual jurisdictions would be added to the law.  So we have the strange issue that there are some covered jurisdictions that are doing "better" than jurisdictions that aren't covered.

        So the formula presents a quite well-lit and enormous target to the GOP and there are many Northern and Western jurisdictions that need to be included in it ("I'll take 'Great Lakes States' for $500, Alex.").

        Most of the VRA will live; it's pre-clearance that is at risk right now.  But pre-clearance killed some vicious voter ID laws in covered jurisdictions, and that's important.  I won't downplay the necessity of pre-clearance.

        Anyhow, in a perfect world, we would use a new formula that was up-to-date and had a mechanism to add to pre-clearance those jurisdictions where racial disparities have been created or even subjected the entire country to pre-clearance.  Based on today's argument, that would seem to pass Constitutional muster.

        But we don't live in a perfect world; we live in a world where the GOP has control over the House and where state parties want to apportion Pennsylvania's electoral votes by CD.  We can't pass that bill in this Congress.  And sadly, political considerations are rarely, if ever, considered by SCOTUS - it is rarely a valid argument to say "Well, Chief Justice, we can't replace this law with one you would find Constitutional because of the number of Republicans in the House."  They will not find a law to be Constitutional solely because it is difficult, if not impossible, to replace the borderline law with a Constitutional one.

        So... meh.  What we need to do is work our asses off in 2014, get a Democratic Congress, and then pass a new and better VRA - it could be one of President Obama's many legacies.  But Democrats suck at midterms and I am not hopeful.

        "The first drawback of anger is that it destroys your inner peace; the second is that it distorts your view of reality. If you come to understand that anger is really unhelpful, you can begin to distance yourself from anger." - The Dalai Lama

        by auron renouille on Wed Feb 27, 2013 at 06:51:15 PM PST

        [ Parent ]

        •  Yeah. (1+ / 0-)
          Recommended by:
          radarlady

          It's always been ignored that some of the northern states (particularly some of the Great Lakes states) have been about as bad as the South.  There was plenty of resistance to the Civil Rights movement in places like Chicago and Detroit.

          28, white male, TX-26 (current), TN-09 (born), TN-08 (where parents live now)

          by TDDVandy on Wed Feb 27, 2013 at 07:14:15 PM PST

          [ Parent ]

    •  2004 (1+ / 0-)
      Recommended by:
      indie17

      "Much more would be accomplished if just half the energy that goes into this internal battling went into the real activism that we see recounted or proposed in diaries every day. " ~MB

      by roubs on Wed Feb 27, 2013 at 06:34:28 PM PST

      [ Parent ]

    •  The recent NC school segregation activity (0+ / 0-)

      can hardly be termed an historical-stain claim.

      http://www.motherjones.com/...

      Others have simply gotten old. I prefer to think I've been tempered by time.

      by Just Bob on Wed Feb 27, 2013 at 07:08:54 PM PST

      [ Parent ]

  •  Typical right wing straw-man tactics, to call (4+ / 0-)
    Recommended by:
    indie17, The Magus, SueDe, Turn Left

    this court "supreme" is a horrible joke and a travesty of the English language. Vicious, immoral, uninformed and vile statements are common place in the current political discourse; however, the court is not supposed to be a place of intemperate ignorance and bitter bigotry, but reasoned and enlightened discourse. Clearly this court is a disgrace to the American system unmatched since the Tawney court.

    "Intelligence is quickness in seeing things as they are..." George Santayana

    by KJG52 on Wed Feb 27, 2013 at 06:28:45 PM PST

  •  Corporations are people, money is speech (7+ / 0-)

    but the voting rights act is just entitlements for minorities.

    I'm so fucking sick of the right-wing I could scream.  They have ruined a once-great nation.  

    The tent got so big it now stands for nothing.

    by Beelzebud on Wed Feb 27, 2013 at 06:29:44 PM PST

  •  As a simple reminder (4+ / 0-)
    Recommended by:
    Empower Ink, KJG52, chancew, radarlady

    The people arguing that the Voting Rights Act is no longer necessary are the children of the people who used to intimidate African-Americans to keep them from voting.

    28, white male, TX-26 (current), TN-09 (born), TN-08 (where parents live now)

    by TDDVandy on Wed Feb 27, 2013 at 06:31:54 PM PST

  •  This is a real mixed bag of ethics. (2+ / 0-)
    Recommended by:
    Adam B, KayCeSF

    I am having very mixed reaction to the discussion on voting rights today. While it's obvious that the motives of Scalia and Co. are deeply bigoted, there are arguments against section 5. The fact is that the most grevous violations of voting rights are in non-targetted states.

    Florida? Wisconsin? Pennsylvania? Not on the list.

    If Congress had "the balls" to create a concrete definition of bias that would apply "moving forward" rather than relying on historical data it wouldn't be possible for this case to be heard by the SCOTUS.

    Now, I don't see that coward Boehner moving anything forward, but a strong new voting rights act is needed.

    •  There's a reason for that. (7+ / 0-)

      The worst violations are happening in non-preclearance states specifically because those states don't have preclearance. They're doing the things that stats like Alabama would love to do, but are blocked from doing.

      The only rational solution is to require preclearance everywhere.

    •  Yes, Section 5 of the Voting Rights Act (2+ / 0-)
      Recommended by:
      MsTribble, Adam B

      SHOULD apply to the entire country, just like eating milk chocolate SHOULD help me lose weight and lower my cholesterol.  But this would present an impossible task for the DOJ.  Expanding the number of jurisdictions covered by Section 5 is not the topic of discussion, because that's not the question before the court; whether or not any jurisdictions should remain under scrutiny by the DOJ is the question.

      If the idea of expanding the number of jurisdictions covered is ever raised by congress, then we can discuss the discrimination in Florida, Pennsylvania, Wisconsin - and I would certainly include Ohio in that list.

      "In this world of sin and sorrow there is always something to be thankful for; as for me, I rejoice that I am not a Republican." - H. L. Mencken

      by SueDe on Wed Feb 27, 2013 at 09:03:52 PM PST

      [ Parent ]

  •  if this scotus (1+ / 0-)
    Recommended by:
    indie17

    has its way there will not be a dem elected to be pres again in our lifetime, this will be the beginning of pure fascism in america, votes and the will of the majority will mean even less than it does now.
    this could be the beginning of the end of democracy as we know it and the beginning of what will be called the dark ages of freedom in america, the right sees the writing on the wall with the demographics in america solidly against them so this is the agenda to void the voice of the people.

    •  hahahahahahahaha. (1+ / 0-)
      Recommended by:
      Jahiegel

      20, CA-18 (home), CA-13 (school)
      politicohen.com
      Socially libertarian, moderate on foreign policy, immigration, and crime, liberal on everything else.
      UC Berkeley; I think I'm in the conservative half of this city. -.4.12, -4.92

      by jncca on Wed Feb 27, 2013 at 06:39:13 PM PST

      [ Parent ]

  •  My vote will not count unless the VRA (2+ / 0-)
    Recommended by:
    LordMike, radarlady

    passes.  Our legislature is controlled by conservative, Republican, Mormon men and women, (6% of the population and 30% of the legislature) who regularly try to disenfranchise voters with onerous legislation.

    Democrats need to grow some serious cojones and lead on this issue.

    No matter how cynical you get, it is impossible to keep up.--Lily Tomlin

    by Desert Rose on Wed Feb 27, 2013 at 06:35:54 PM PST

  •  The obvious solution, of course (1+ / 0-)
    Recommended by:
    radarlady

    is to just apply Section 5 to the whole country, since we're seeing non-covered jurisdictions like Ohio and Pennsylvania try to pull the same shit and then the whiny Southerners couldn't bitch about being treated differently.

    28, white male, TX-26 (current), TN-09 (born), TN-08 (where parents live now)

    by TDDVandy on Wed Feb 27, 2013 at 06:37:11 PM PST

    •  And that has about as much chance (0+ / 0-)

      of happening with this congress as all the conservative SCOTUS judges dropping dead before the Shelby County case is decided.

      "In this world of sin and sorrow there is always something to be thankful for; as for me, I rejoice that I am not a Republican." - H. L. Mencken

      by SueDe on Wed Feb 27, 2013 at 09:10:47 PM PST

      [ Parent ]

  •  THe way our current President is treated.. (1+ / 0-)
    Recommended by:
    auron renouille

    should disqualify any arguements against overturning
    Section 5 Or any other part of the act!!!

    America, We blow stuff up!!

    by IndyinDelaware on Wed Feb 27, 2013 at 06:37:33 PM PST

  •  If over turned, would it be bad? (2+ / 0-)
    Recommended by:
    Adam B, Be Skeptical

    In the South it tends to make safe black districts, but that also means that there are safe suburban Republican districts. Is it possible that a redrawing of the districts actually gets more Democrats elected in the South? Just a thought I had. I doubt it would play out that way with the Republican majorities in the South drawing the lines.

    I hate to admit it, but Justice Roberts has a point. Congress should apply the same rules to ALL states equally. But I don't see that happening in this political environmental.

    It is possible to read the history of this country as one long struggle to extend the liberties established in our Constitution to everyone in America. - Molly Ivins

    by se portland on Wed Feb 27, 2013 at 06:43:15 PM PST

    •  There's more to the VRA than that. (4+ / 0-)
      Recommended by:
      se portland, Adam B, kenosha kid, shanikka

      The VRA also does a lot to protect the actual voting rights of African-Americans and other minorities.

      Plus, in states where the VRA requires the creation of minority-majority districts, and Republicans are in control, there's no guarantee they would do this.  In fact, Republicans in the South are often thrilled to have the VRA as a pretext for packing Democratic voters into dark-blue districts and keeping them out of suburban Republican districts as a result.

      28, white male, TX-26 (current), TN-09 (born), TN-08 (where parents live now)

      by TDDVandy on Wed Feb 27, 2013 at 06:45:54 PM PST

      [ Parent ]

    •  Sequestration of Democrats (1+ / 0-)
      Recommended by:
      se portland

      We would have more Democratic congressional representation in the South if there wasn't an aim of creating majority black districts.  What ends up happening is that districts are created (usually by GOP state houses) that have a high proportion of African Americans.  In their view, the higher the better, so that by concentrating this highly Democratic voting group in relatively few districts the rest of the state is left to the GOP.  There is now only a single white Congressman from the South.  There are a number of black representatives who get re-elected with 90% of the vote.

      Who is this really helping?

  •  We need a new 21st Century Voting Rights Act (4+ / 0-)
    Recommended by:
    kenosha kid, shanikka, KayCeSF, jncca

    ...one which not only codifies everything in the existing act, but which also makes Republican attempts to disenfranchise voters illegal. For instance...it would outlaw last-minute attempts to purge voters rolls, tamper with early voting, and deliberately create long voting lines in certain precincts, last-minute changes to polling places and all of the other sordid Republican attempts to undermine democracy.

  •  I, too, think it will fall and what a sad time in (0+ / 0-)

    our history.  I weep for this nation if the time of only some have a guaranteed right to vote comes to pass once again.

    I really wonder how the nation will react.  This will be the time for massive protests and massive outcry. I can not see most people of this country....like upwards of 80%, accepting this as a reality with no feelings of outrage.

    •  There Won't Be (0+ / 0-)

      There was an almost surreal silence, by and large, when Brown v. Board of Education was basically gutted in 2007 by Parents' Involved.  It will be similar,  I predict.  But, of course, since the harm won't be felt across the board to the same degree, the majority will likely just respond as they did in 2007:  "Sure, it's deeply disturbing, but I'm confident the court didn't really mean to basically say that the law was really intended to benefit whites as much as Black folks, so we will just have to see."

      Call me a cynic, especially as it relates to this court.  My only heartfelt prayer re: Section 5 at this point, since I do believe it will be struck down, is that they don't have Uncle Clarence write the decision.

      /sigh.

  •  I drew this a few years ago, but it seems (3+ / 0-)

    appopos today:

    Done with politics for the night? Have a nice glass of wine with Palate Press: The online wine magazine.

    by dhonig on Wed Feb 27, 2013 at 06:58:24 PM PST

  •  This reminds... (0+ / 0-)

    ...me of the Daily Kos freakout over the ACA oral arguments before the Supreme Court.

     All the venerable Daily Kos lieutenants assured us the ACA ("Obamacare") was rightly fucked, because the oral arguments were a unmitigated disaster.

    You all know how that one ended. (Not a single Daily Kos bigwig apologized for unduly casting this community into a frenzy).

    All I am seeing here is the right wing lunatics on the Supreme Court being vehemently against the Voting Rights Act.

    That about as stirring news as a 6-year-old being vehemently against spinach.

    While I do believe there are enough unhinged radicals on the Supreme Court to overturn the Voting Rights Acts, I'm not going to freak over Scalia acting like an unrepentant Klansman.

    And I'm surely not going to take to heart anything Daily Kos has to say about a Supreme Court hearing.

    I'm worse at what I do best/ And for this gift I feel blessed. - Kurt Cobain

    by wyvern on Wed Feb 27, 2013 at 07:00:07 PM PST

    •  Please check my diaries from back then. (4+ / 0-)
      Recommended by:
      LordMike, pico, fuzzyguy, jncca

      From the oral argument on the individual mandate:

      First, one caveat: Justices ask questions for all sorts of reasons. They may be trying to persuade their colleagues; they may be playing devil's advocate to sharpen the opinions they're trying to write; and, yes, they may have honest questions. But I see almost nothing in today's transcript that gives me any confidence that a fifth vote exists to preserve the individual mandate—and if that goes, then the Guaranteed Issue provisions will fall as well....

      What I've done below is set out sections from today's argument which I think give insights into the four questioning conservative Justices' thinking; the four moderate-liberals on the Court seem to be sure votes to uphold the individual mandate. I did use "almost" as an adverb above, so I'll start with the one clause that gives me some hope that the Chief Justice may be favorably inclined, and a nibble from Justice Scalia at the end of the pro-mandate argument that's prone to multiple interpretations.

  •  VRA may need to evolve? Populations are shifting. (0+ / 0-)

    To ensure equity in voting, for example in Alaska, would might be better off with stronger enforcement of the Alaska constitution from the feds/Dept. of Justice.  

    Our communities are now such that compact, contiguous districts make a lot of sense.

    VRA has helped keep egregious Republicans somewhat in line though.  VRA has given them less wiggle room to gerry-mander even though they manage to do so egregiously anyway.

    Funny, they cite VRA act when a Republican Native is the incumbent and ignore it/manipulate it when a Democrat Native is in charge.

    it's really more about values and community these days than about race.

  •  we need a federal comphrensive voting act (6+ / 0-)

    that encompasses discrimination, gerrymandering, early voting, voter intimidation and I'm sure I'm forgetting other parts

    In the time that I have been given,
    I am what I am

    by duhban on Wed Feb 27, 2013 at 08:03:26 PM PST

  •  Does Scalia possess any self awareness? (1+ / 0-)
    Recommended by:
    Turn Left
    There are certain districts in the House that are black districts by law just about now.
    How about... due to this very thing being due to republican gerrymandering in the states in question... you realise this completely makes the argument you're against, you vile sack of crap?
  •  Can't be left to Congress??!!!! (0+ / 0-)

    "...RIGHT to vote shall not be denied or abridged...Congress shall...enforce...by appropriate legislation."   (Articles [of Amendment] XV, XIX, emphasis added).

    These Amendments recognize that there is a right to vote.  That right is to be enforced by legislation that is appropriate.  

    The sole question is whether the legislation to enforce this "entitlement" is "appropriate."  The question is not whether it might be better or made more appropriate by some other actions of Congress but whether this legislation is inappropriate. , i.e., not appropriate to the protection of this cherished right.  Given the record throughout the history of this legislation obviously including the machinations during our last presidential election, no honest person can say that the statute is in any manner inappropriate.  What could be said is that equal protection demands that the law be made to apply universally not that it be vitiated merely because "they did it too...."

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