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I do not mean in any way to minimize the impact of today's decision.  It is a terrible ruling that sets an arbitrary standard for coverage.  It also sets southern states free to pass restrictions on voting and get rewarded in the next election while the litigation against it proceeds.  

However...

While southern racists may-in a perverse turn of history given how close we are to Dr. King's "I Have a Dream" speech- be shouting, "Free at last!", they shouldn't be jumping to pass mountains of new voter restrictions.  Preclearance is not dead, at least not yet...

Follow me over the flip for the glimmer of hope that still exists for voting rights in this country.

There are many sections in the Voting Rights Act of 1965.  The ones that have been discussed the most lately have been sections 4 and 5.  Section 4 defines a formula of coverage for which localities need to be covered by section 5, which is the section that lays out the process for preclearance.  The court left section 5 intact, but struck down section 4.  Since the two sections are intertwined though, section 5 is neutered by the loss of the coverage formula.

If you look up one paragraph in the act, however, in section 3, there is an entirely separate provision which has not--to my knowledge--ever been used, but if I were a lawyer in the Civil Rights division of the Justice Department, I would be studying very carefully.  This is the "bail-in" provision of the Voting Rights Act:


(c) Retention of jurisdiction to prevent commencement of new devices to deny or abridge the right to vote
If in any proceeding instituted by the Attorney General or an aggrieved person under any statute to enforce the voting guarantees of the fourteenth or fifteenth amendment in any State or political subdivision the court finds that violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred within the territory of such State or political subdivision, the court, in addition to such relief as it may grant, shall retain jurisdiction for such period as it may deem appropriate and during such period no voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting different from that in force or effect at the time the proceeding was commenced shall be enforced unless and until the court finds that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the voting guarantees set forth in section 1973b (f)(2) of this title: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, except that neither the court’s finding nor the Attorney General’s failure to object shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure.
42 USC § 1973a
I did a search of the decision to make sure, and as I guessed, Section 3 is never mentioned once in today's Supreme Court decision.  This provision, which stands on its own wholly separate and apart from the provisions that were at issue today, could be the leg that civil rights advocates can try to stand on.  

Anthony Kennedy in fact pointed to this section during oral argument as a potential way out:

JUSTICE KENNEDY: Your time is --
MR. REIN: Thank you.
 JUSTICE KENNEDY: -- about ready to expire for the rebuttal period. But I do have this question: Can you tell me -- it seems to me that the government can very easily bring a Section 2 suit and as part of that ask for bail-in under Section 3. Are those expensive, time-consuming suits? Do we have anything in the record that tells us or anything in the bar's experience that you could advise us?
Shelby County v. Holder Oral Argument, pg 24
Now, that does mean that there will have to be a trial that forces a jurisdiction into this, so the Justice Department will have it's work cut out for it.  However, the proverbial Sword of Damicles may yet be hanging over some southern states, Section 4 be damned anyway.

Watch this space...

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Comment Preferences

  •  Interesting (4+ / 0-)

    This would seem to require some expert legal analysis.

  •  It's worth considering (3+ / 0-)
    Recommended by:
    mommyof3, devtob, Notreadytobenice

    Also worth considering is the "shall" language. Can the DOJ ask the courts to step in under Section 3 given "recent" history of issues found under Section 5 or Section 2? How many court rulings haven't included Section 3 bail-in provisions because Section 5 already covered them? If the court "shall" enforce Section 3 "for such time as it sees fit", does it have to declare that time frame during its verdict, or can it step in to future issues whenever it sees fit based on its previous rulings?

    Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves. - William Pitt

    by Phoenix Rising on Tue Jun 25, 2013 at 03:45:53 PM PDT

    •  shall is the most powerful of the 3 verbs: (0+ / 0-)

      Shall (you gotta do it)
      Should (right thing to do but you don't have to)
      May (just an option - (forgaht about it)

      Took a course on rules and regs as they are written by folks that graduate from bad writing school.

  •  As has been pointed out in other diaries... (1+ / 0-)
    Recommended by:
    devtob

    ...the sections not struck down put all of the burden on the people, rather than the state or districts. The only reason the Texas Voter ID law did not go into effect last year was because of Section 4. That's it. It is now about to go into effect.

    And the reason why this is a massive, massive problem is that it will have a detrimental effect in small towns and more rural areas with minorities who don't have a lot of money. People like that don't make it to the evening news, and tend not to get any pro bono help because of it.

    Time is of no account with great thoughts, which are as fresh to-day as when they first passed through their authors' minds ages ago. - Samuel Smiles

    by moviemeister76 on Tue Jun 25, 2013 at 03:46:18 PM PDT

  •  I don't know enough about the (1+ / 0-)
    Recommended by:
    Richard Lyon

    application of the language in practice to make a judgment

    The fact it hasn't been used as you claim is a concerning sign that language may be term of art that doesn't mean what it may mean in layman's terms

  •  The supremes may be half asleep (1+ / 0-)
    Recommended by:
    devtob

    but they have clever eager beaver law clerks. If what they wanted to do was to disable the effect of the law, they wouldn't have overlooked something by accident.

  •  It's only dead with this Congress (4+ / 0-)

    The SCOTUS kicked it back to Congress, but everyone knows this Congress will not revisit preclearance. This could blow up in the Republicans faces, as this will give a strong impetus to Democrats who usually sit out midterm elections to get off their asses. 'Vote while you still can' should be the rallying cry for 2014.

    I'm no philosopher, I am no poet, I'm just trying to help you out - Gomez (from the song Hamoa Beach)

    by jhecht on Tue Jun 25, 2013 at 04:24:44 PM PDT

  •  Ginsberg's dissent (3+ / 0-)
    Recommended by:
    Armando, offgrid, willrob
    The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective. The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclear­ance is no longer needed,” Ginsberg said.

    “With that belief, and the argument derived from it, history repeats itself,” she wrote.

    If cats could blog, they wouldn't

    by crystal eyes on Tue Jun 25, 2013 at 04:26:06 PM PDT

  •  There is no reason not to try though it will be (0+ / 0-)

    ...much harder.Just because it is harder now shouldn't mean we try to discourage any attempts to use it this manner.

    Congress is still going to be the key. I know there are folks around here that do not want to acknowledge this, but we have to continue to work and get control of the Congress.

    It just isn't enough to hold the presidency and the Senate, we need to recapture the House and State Legislatures.Through this type of persistence we change the Supreme Court which, as we now should understand, is the trump card through the turmoil and turnover in the other branches.

    The path forward is clear:beat the Republicans in every race, everywhere, in every cycle. Anything else is bulls**t.

    The politicians may be bought, and the system corrupt, but it is our duty to fix these things.

    by sebastianguy99 on Tue Jun 25, 2013 at 04:31:44 PM PDT

  •  The original purpose of the VRA (1+ / 0-)
    Recommended by:
    PeterHug

    was to paint the Jim Crow south with a sweeping brush and grant relief to minorities across the board. At the time nobody who was dealing from the top of the deck would have said that the problem could be dealt with one suit at a time.

    Racism in Dixieland is far from dead. It may have been forced into the closet for a generation, but they haven't forgotten the civil war and they sure haven't forgotten Jim Crow.

    •  Wasn't just the South (2+ / 0-)
      Recommended by:
      PeterHug, Dogs are fuzzy

      One of the things I keep seeing is people writing that the VRA was about the South. It was largely the South because that was where most of the obstruction of voting has been going on, but the VRA also extended to several places up North and out West as well.

      Time is of no account with great thoughts, which are as fresh to-day as when they first passed through their authors' minds ages ago. - Samuel Smiles

      by moviemeister76 on Tue Jun 25, 2013 at 05:07:47 PM PDT

      [ Parent ]

  •  Has Sec. 3 been invoked in court orders? (0+ / 0-)

    Does anyone know if there are any standing Sec. 3 court orders already out there?

    We are guessing (and probably accurately) that no-one has ever invoked Sec. 3 to initiate an action. But lawyers are usually pretty good at asking for all available remedies. So has any Sec. 2 or Sec. 5 court order included an ongoing Sec. 3 bail-in provision?

    Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves. - William Pitt

    by Phoenix Rising on Tue Jun 25, 2013 at 04:57:16 PM PDT

    •  No, Section 3 has been invoked (1+ / 0-)
      Recommended by:
      Dogs are fuzzy

      Off the top of my head, I know Arizona faced it. It just doesn't get used that often because it takes a lot of work.

      Time is of no account with great thoughts, which are as fresh to-day as when they first passed through their authors' minds ages ago. - Samuel Smiles

      by moviemeister76 on Tue Jun 25, 2013 at 05:06:07 PM PDT

      [ Parent ]

      •  And it won't get used much now (1+ / 0-)
        Recommended by:
        moviemeister76

        for that reason.

      •  So "a lot of work" (1+ / 0-)
        Recommended by:
        PeterHug

        seems to me to mean winning a single Section 2 case in court and asking for Section 3 coverage. For states that have long been covered by Section 5 preclearance and have a history of getting their stuff rejected by the DOJ, proving the need for Section 3 should be relatively easy once you pass the Section 2 case hurdle.

        Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves. - William Pitt

        by Phoenix Rising on Tue Jun 25, 2013 at 05:15:18 PM PDT

        [ Parent ]

        •  And once under Section 3 (1+ / 0-)
          Recommended by:
          PeterHug

          if I read the statute right, it works pretty much exactly like Section 5 - all voting changes go to the court and the USAG's office, and the AG has 60 days to say "looks good to me".

          Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves. - William Pitt

          by Phoenix Rising on Tue Jun 25, 2013 at 05:17:36 PM PDT

          [ Parent ]

        •  You make it sound so simple (1+ / 0-)
          Recommended by:
          Richard Lyon

          When it really, really isn't. It takes years of legal wrangling to do just one case. Multiply that by dozens of districts, or even hundreds. How many lawyer do you think the DOJ has? And in the mean time, folks will have their rights restricted.

          Time is of no account with great thoughts, which are as fresh to-day as when they first passed through their authors' minds ages ago. - Samuel Smiles

          by moviemeister76 on Tue Jun 25, 2013 at 05:28:22 PM PDT

          [ Parent ]

          •  I'm not saying it's easy (0+ / 0-)

            I'm saying it's not "forever" hard.

            There are a few states that comprise most of the offenses, and some of them sound like they're lining up to test the limits of their newfound "freedom". Get them under Section 3 and you cover the whole state at once. Catch other states like Virginia who've recently joined the whacko crowd, ask for whole-state coverage. The DOJ doesn't have to go after the county level jurisdictions unless it can't get state level coverage.

            Once under Section 3, they just have to get the court to set the timeframe for coverage to something suitably long. For voting rights issues that take place often over decades, this coverage should be arguably long by default.

            Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves. - William Pitt

            by Phoenix Rising on Tue Jun 25, 2013 at 05:44:21 PM PDT

            [ Parent ]

        •  Do you know who are packed (1+ / 0-)
          Recommended by:
          Dogs are fuzzy

          on the federal benches in those states.

          I'll give you 3 guesses.

  •  Will they actually use this? (0+ / 0-)

    Or will it be the voting rights version of the platinum coin?

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

    by kovie on Tue Jun 25, 2013 at 05:19:26 PM PDT

  •  just to let you know (0+ / 0-)

    you wrote 'hole' instead of 'hope' in your intro

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

    by duhban on Tue Jun 25, 2013 at 05:37:13 PM PDT

  •  Isn't it gonna be a "standing" Catch-22? (0+ / 0-)

    Or the Catch-22 about how you can't sue until yer actually denied the right to vote, then, AFTER election day, you can go to the court and say "I was denied the right to vote because of razzamattazz...."  but of course, by then, the wingnut douchenozzle crazier than Goumert is yer congresscreature....

    I mean, if your state passes a law that keeps you from voting, you haven't ACTUALLY been injured until you ACTUALLY can't vote....Right?

    "Ronald Reagan is DEAD! His policies live on but we're doing something about THAT!"

    by leftykook on Tue Jun 25, 2013 at 06:15:04 PM PDT

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