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Supreme Court Chief Justice John J. Roberts
When the Supreme Court agreed to hear Shelby County v. Holder, a challenge to the Voting Rights Act, most voting rights activists feared the worst. But being prepared to see the radical, extremist majority of the Court gut the Voting Rights Act doesn't lessen the shock and the anger much.

Shelby challenged Section 5 of the VRA, the section that requires jurisdictions with a history of discrimination to seek pre-approval of changes in voting rules that could affect minorities. Instead of striking down Section 5, though, the radicals on the Court invalidated Section 4, the provision that determines the states and localities covered by Section 5. In doing that, the Court leaves it up to Congress (a dysfunctional, ideologically divided congress held hostage by extremists) to update that list of states and localities. Congress overwhelmingly reauthorized the Voting Rights Act in 2006 (unanimously in the Senate and by a vote of 390-33 in the House), but in the Obama era, that bipartisanship proved hard to repeat.

Repeat we must, however, and to that end Democrats are starting to explore a revision of the VRA.

“As Chairman of the Judiciary Committee, I intend to take immediate action to ensure that we will have a strong and reconstituted Voting Rights Act that protects against racial discrimination in voting,” Sen. Patrick Leahy (D-VT) said in a statement after the decision. [...]

On the assumption that the Voting Rights Act process will follow the same path other legislation has traveled this Congress, the Senate will act first, and the House will have to decide whether or not to follow suit. Democrats can exert pressure, but they’re effectively cut out of the decision.

“I would like to see something called—well, I haven’t even discussed this with my caucus, but—the John Lewis Voting Rights Act, which would address the concerns that the Court put in its decision about Section 4,” House Minority Leader Nancy Pelosi told reporters Wednesday. “It’s really a step backward and it’s not a reflection of what is happening in our country in some of these places. And when we put that bill together, when it was passed last time, it passed overwhelming, overwhelming 98 to nothing in the Senate and 390-something to almost nothing in the House. And it was bipartisan and we came to terms on it, in a way that we were all jubilant about the passage of it, Democrats and Republicans alike.”

There's a tiny bit of encouragement coming from (of all people) House Majority Leader Eric Cantor (R-VA) who seems to have sincerely been moved by his trip to Selma with civil rights icon Rep. John Lewis (D-GA). Cantor says that he will talk with Rep. Lewis about how Congress should respond to the decision.

Below the fold, we'll discuss a few of the options that Congress might consider, as well as what's been happening in the states since the decision came down.

Before we go there, though, it’s a little known fact that the U.S. Constitution does not guarantee the right to vote for everyone, but we are fighting to change this. Please sign the petition to join Daily Kos, Color of Change, and a growing movement to pass a constitutional amendment guaranteeing and protecting the freedom to vote for all.

While we fight for a constitutional amendment guaranteeing the right to vote, here are a few ideas being floated as an immediate fix.

  • Richard Pildes at Election Law Blog argues that the answer lies within Section 3 of the VRA, a provision that "gives courts the power to order a jurisdiction to start pre-clearing its voting changes for a period of time." Pildes makes the case that having federal courts, rather than the Department of Justice, determining jurisdictions that would need to have voting changes pre-cleared would depoliticize the issue. He argues that a few "relatively straightforward" amendments to Section 3 would make it work.
    Section 3 could be amended to include violations of the Voting Rights Act itself; Congress could also include significant violations of the other federal statutes to protect the right to vote that have been enacted since 1965, including the Motor Voter Registration Act and the Help America Vote Act.  In addition, Section 3 should simply include any violation of the 14th and 15th Amendments with respect to voting rights.  Since 1965, the Supreme Court has recognized in many contexts that the right to vote can be constitutionally violated even without intentional discrimination being found.  Courts have varied thus far in whether they have required repeated violations of a single violation as sufficient to put an area under judicial pre-clearance.
  • Steven Hill, author of 10 Steps to Repair American Democracy: A More Perfect Union-2012 Election Edition, has another suggestion: turn it to the states and have them enact automatic voter registration.
    [A]utomatic voter registration is a great tonic to voter-ID laws, which Democrats and civil-rights leaders have fought doggedly. If voter IDs were coupled with a unique identifier for every eligible voter, they could be used to implement automatic voter registration. That would turn voter-ID laws on their head, registering to vote millions of minorities and youth -- far more than the number who are likely to stay home for lack of a voter ID. This idea was endorsed by the 2006 Commission on Federal Election Reform, co-chaired by former President Jimmy Carter and GOP uber-consigliere James Baker III.
    Oregon's House passed such a bill this week. This could be done, Hill argues, in every state that has majority Democratic rule. Other means of expanding the vote he argues for are "guaranteed early voting and laws improving absentee and provisional ballot procedures," and election day registration. These are all good sort of mechanical ideas for expanding the vote, and should be pursued alongside efforts to guarantee the right to vote.

What's happening in the states?

  • Texas lost no time in going forward with the laws it was prevented from enacting by the Justice Department under VRA.
    With the Supreme Court suspending the mechanism that forced Texas to get a federal OK before it can implement any election law change, state Attorney General Greg Abbott asserts that nothing now can stop the state from activating its controversial voter ID law.

    “With today’s decision, the State’s voter ID law will take effect immediately,” Abbott announced. “Redistricting maps passed by the Legislature may also take effect without approval from the federal government.”

    U.S. Rep. Marc Veasey (D-TX) along with a number of African-American and Hispanic plaintiffs, has filed suit in federal court to try to halt the voter ID law implementation, arguing that the law "violates section 2 of the Voting Rights Act and that the Texas Legislature enacted the law with a discriminatory purpose in violation of the 14th and 15th amendments to the Constitution."
  • North Carolina is moving ahead with voter ID.
    A bill requiring voters to present one of several forms of state-issued photo ID starting in 2016 cleared the House two months ago, but it's been sitting since in the Senate Rules Committee to wait for a ruling by the justices in an Alabama case, according to Sen. Tom Apodaca, R-Henderson, the committee chairman. He said a bill will now be rolled out in the Senate next week.
  • In Colorado, our old nemesis Secretary of State Scott Gessler (R), is still at it:
    The latest round of letters questioning the citizenship of some Colorado registered voters has 63 out of 298 people affirming their right to vote, and most recipients are ignoring the May letters altogether.
    Last year, Gessler sent nearly 4,000 of these letters in an apparent attempt to intimidate voters and keep them from the polls. The good news is the legislature defeated legislation that would have given Gessler the power to strip the vote away from people who don't respond to his letter. So even though he can't really do anything about it, he's still sending the letters.
  • Two Kansas men whose provisional ballots weren't counted in last year's election are challenging that state's voter ID law. The two men live in a retirement home, don't have drivers licenses and don't "own computers or the resources to apply for a free ID from the state."
  • A new study from Florida found that Hispanic voters waited in the longest lines to vote in November.
    The study, by political scientists at Dartmouth and the University of Florida, found that precincts with a greater proportion of Hispanic voters closed later on Nov. 6 than precincts with predominantly white voters. In some cases, blacks also had longer waits than whites but shorter than Hispanics. [...]

    On average, 73 minutes passed between the 7 p.m. close of the polls and the time when the final voter in line cast his or her ballot in Miami-Dade. In Broward, which has a larger proportion of white voters than other large Florida counties, that average was 25 minutes, according to the study.

    Tampa's Hillsborough County, which had been covered by the provision in the Voting Rights Act ruled unconstitutional, also had "unmistakable correlations between the racial and ethnic makeup of the precincts and closing times." The Voting Rights Act had required certain states and counties — including Monroe in the Florida Keys — to obtain prior authorization from the U.S. Department of Justice to change elections laws.

Originally posted to Daily Kos on Sat Jun 29, 2013 at 09:00 AM PDT.

Also republished by State & Local ACTION Group.

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Comment Preferences

  •  If SCOTUS will ignore the Constitution (16+ / 0-)

    with respect to VRA authority, they'll ignore an Amendment that simply generalizes that authority.  The problem isn't the law - the problem is the people arbitrarily interpreting it for partisan ends.  Impeach.

    Sign the petition to demand a law-abiding Supreme Court.

    by Troubadour on Sat Jun 29, 2013 at 09:03:54 AM PDT

  •  The Dred Scott Decision Circa 2013; Thanks Roberts (4+ / 0-)
    Recommended by:
    Matt Z, DeathDlr73, Berkeley Fred, eps62

    80 % of Success is Just Showing Up! Hey Climate Deniers, Welcome to CLIMATE HELL!

    by Churchill on Sat Jun 29, 2013 at 09:05:24 AM PDT

  •  Thanks Joan (7+ / 0-)

    nosotros no somos estúpidos

    by a2nite on Sat Jun 29, 2013 at 09:05:42 AM PDT

  •  To Cute by Half (9+ / 0-)

    If someone were to come out of a decades-long coma and read the Roberts decision, one MIGHT think it had some logic to it. "Congress, update your data so that the appropriate states and situations are covered..."

    But since anyone who has sat upright in the last few years fully knows, Congress is disfunctional and unless voters get mad enough to take back the House, it will never happen.

    So Roberts destroys voting rights without even trying.

    •  Shorter SC: racism is over in the USA... (0+ / 0-) now we can go back to states rights. Wait, what?

      It's the hidden assumption behind their reasoning which is so offensive: it's been long enough. There has been 50 years since we actually began trying to protect African-American voting rights in America, and that's long enough. You people don't need protection anymore, because America!

      Instead of thinking that racism must be permanently eliminated before we do anything that might weaken protections on minority rights, this Supreme Court thinks, "Close enough!" Or to use a medical analogy, instead of taking the antibiotic prescription to completion, they say: "Wow, don't have any overt symptoms, we're done!"

      Needless to say, literally hours after Shelby, the infection springs back to life. This should surprise absolutely no one.

      Sadly, I'm afraid too many people in America have this same assumption: 'It's been long enough!' 'Why don't you move on?' 'Get over it!' And of course, there are plenty who don't even pretend to show remorse for America's shameful past.

      It's a real shame that just as this Supreme Court gives gay Americans a small but substantive step forward in recognition of their civil rights, they are so eager to take a not-so-small step back for African-Americans. But since there are more AA and other ethnic minorities than gays, I'm sure it suits them just fine. X(

  •  Can the Justice Department enforce Sec. 5 equally (9+ / 0-)

    amongst ALL the states?

    Notice: This Comment © 2013 ROGNM

    by ROGNM on Sat Jun 29, 2013 at 09:28:12 AM PDT

    •  That was my thought all along (4+ / 0-)
      Recommended by:
      mdmslle, Aunt Pat, eps62, Eric Nelson

      If the VRA section is rewritten to include ALL states and jurisdictions, then the court should have no issue with individual areas being singled out.

      Personally, I think that would be the best and easiest fix to the whole problem.

      Time is our observation of events happening in the world around us; it can never be wasted, but is often mis-spent.

      by DeathDlr73 on Sat Jun 29, 2013 at 09:34:22 AM PDT

      [ Parent ]

    •  this exactly (3+ / 0-)
      Recommended by:
      Mimikatz, Aunt Pat, eps62

      We are seeing states like MI, OH, and PA that do not have a history of racial discrimination and otherwise avoiding the "preclearance" issue are effectively working to discriminate through Voter ID laws, draconian cuts to voting hours, creating long lines, etc...

      It would be great to see the DOJ step-in and prevent those types of partisan efforts.

      •  Great point,but challenging to implement (0+ / 0-)

        Granted that pre-clearance was a very important impediment to hidden and last-minute skullduggery, the problems in recent years have not been confined to the Section 4 jurisdictions.  

        But, importantly, as I understand it, the VRA principles were never confined to Section 4 jurisdictions - it was just that applying them to other jurisdictions required some kind of basis for post-facto litigation.

        So, in the interests of making an opportunity out of this challenge, can we now begin pro-active work in litigating in Federal courts against all laws and practices that contravene VRA principles?  In all jurisdictions?  

        The point - and the challenge - is  that we will not be able to depend on DoJ to do this for us preemptively.  It will take dedicated teams of activists in each state.   However, the record of recent elections would appear to provide ample basis for such challenges.

        I would welcome any comments from those more  versed in these matters - including (but not only) from those with law degrees.

  •  Voting should be a right. (4+ / 0-)
    Recommended by:
    mdmslle, lcrp, Aunt Pat, eps62

    Anyone showing up at a polling site should get to vote.  It ought to be the state's obligation to prove someone not eligible.  Racial discrimination may not be the problem it once was but partisan discrimination (voter suppression) is more a problem that ever with examples  throughout most of the pivotal states.  

  •  thanks for this, republished to state and local (6+ / 0-)

    action group because I have very little faith that anything meaningful is going to happen at the federal level - although I am hopeful.

    the GOP cannot win without cheating anymore. They know this and their "outreach" strategy is not working.

    There a coalition of us looking at an "adopt a voter" strategy and hopefully we'll be moving forward with it in a couple weeks. Also Bold Blue is working in cooperation with that to target county SOE elections in key districts/states/counties as well as create focus around sec. of state elections.

    I'll update next week as we move forward.

  •  What has to be re-written? (2+ / 0-)
    Recommended by:
    DeathDlr73, eps62
    Instead of striking down Section 5, though, the radicals on the Court invalidated Section 4, the provision that determines the states and localities covered by Section 5.
    Wonder if Sec. 5 stands on it's own?

    As long as all are treated equally, why not?

    Notice: This Comment © 2013 ROGNM

    by ROGNM on Sat Jun 29, 2013 at 09:38:55 AM PDT

  •  Just Before Election They'll Ban Student Voting (6+ / 0-)

    Wait and see, this is what they are going to do - single out the largest block of people that don't own property and ban them as a group.  many of them will discover that they have been legally disenfranchised at their school and at their home addresses.

    This is likely to become a regular feature of elections as the crazy laws are passed the week before every election.

    There’s always free cheddar in a mousetrap, baby

    by bernardpliers on Sat Jun 29, 2013 at 09:46:56 AM PDT

  •  If the Republicans are smart, they will (2+ / 0-)
    Recommended by:
    a2nite, bythesea

    work out a bi-partisan reboot of the VRA to take the issue away before the mid-term election.   If they don't move on that, it's a clear sign that they have learned nothing.  

    The patellar reflex is a deep tendon reflex which allows one to keep one's balance with little effort or conscious thought.

    by SpamNunn on Sat Jun 29, 2013 at 09:56:06 AM PDT

  •  the VRA should fix Gerrymandering (4+ / 0-)
    Recommended by:
    Ahianne, sow hat, Aunt Pat, eps62

    turn redistricting from "Incumbent protection" to
    compact districts.

    if the districts are compact, they become easier to campaign in.

    as for ballot box access, set the standard that no
    regulation should impose an undue burden on the
    fundamental right to vote.  That and polling station
    hours or equipment that is unbalanced is a equal protection
    violation of one man one vote.

    I'd also require every voting station to either use paper scantrons or keep a printed register of your vote.
    so auditing is easy.

  •  Then they used "marriage equality" as (1+ / 0-)
    Recommended by:

    cover for their evil cynical racism.

    nosotros no somos estúpidos

    by a2nite on Sat Jun 29, 2013 at 10:02:29 AM PDT

  •  I want to read that the Attorney General... (4+ / 0-)
    Recommended by:
    a2nite, JML9999, eps62, Eric Nelson beefing up the Civil Rights division in anticipation of a case by case defense of voting rights, since that will be  necessary now. So far, I haven't read anything that suggests this is being implemented.

  •  Since corporate mergers have to be pre-approved (2+ / 0-)
    Recommended by:
    eps62, Eric Nelson

    If this is a matter of equal protection under the law wouldn't be more straight forward that all states have to get pre-approved by DOJ.

    A state today with no history of abuse could conceivably take up abusive practices tomorrow.

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

    by JML9999 on Sat Jun 29, 2013 at 10:19:13 AM PDT

  •  with great irony (1+ / 0-)
    Recommended by:

    While the Shelby case was working its way through the courts, a small town in that county eliminated their only black councilman's seat.  All of my racist in-laws and their hateful fundie churches in that county are so nasty my husband left when he turned 18.  I haven't visited there for 6 years because of their vile conversations.  It took 30 years to convince my father-in-law to quit using the n word in our presence, so switched to another racial epithet that starts with j.  I'll spare you the word.  It's mind-blowing how they, like Deen, see no problem with their behavior.

  •  US Constitution - Equal Protection Clause (0+ / 0-)

    In the DOMA case, Justice Kennedy (in his majority opinion) cited the Equal Protection Clause of the Constitution in support of the decision to strike down DOMA.  The idea being that it is wrong for the US government not to recognize a couple legally married under State law simply because the marriage is between 2 men or 2 women.  In summation Kennedy indicated that this applying of a separate standard for Gay and Straight marriage was discriminatory, and as such violated the Constitution's Equal Protection Clause.

    That brings me to the VRA case, the Equal Protection Clause, and my question:

    Why is it a violation of the Equal Protection Clause to have different standards for marriage, but not a violation of the Equal Protection Clause to have different standards (from State to State or County to County) with respect to the right to vote?

    How is it equal access to the polls when a person can vote in one jurisdiction with little or no form of identification, yet persons in another jurisdiction must obtain and show multiple forms of ID?

    Just askin!

    "Some men see things as they are and ask, 'Why?' I dream of things that never were and ask, 'Why not?"

    by Doctor Who on Sat Jun 29, 2013 at 01:59:58 PM PDT

  •  I'm stil seething (0+ / 0-)

    if i were an unstable headcase with an arsenal of assault weapons, our five conservative friends on the SCOTUS might have something to worry about. fortunately for them, i am deeply committed to the principles of non-violence. however, i know exactly what bell hooks meant when she wrote Killing Rage. that's exactly how i feel and why i cannot read Roberts bullshit opinion, at least not today. it was difficult enough to read Ruth Bader Ginsburg's dissent, which would have been the majority if Kennedy's latent racism hadn't gotten the better of him. We're gonna hafta wait these fuckers out and we MUST hold the Presidency and the Senate until one of them dies or retires.

    The harvest is past, the summer is ended, and we are not saved--Jeremiah 8:20

    by skepticalbrotha on Sat Jun 29, 2013 at 05:53:34 PM PDT

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