SCOTUS Guts Voting Rights Act

[fgalkin]

Breaking News:

Washington (CNN) -- A deeply divided Supreme Court has limited use of a key provision in the landmark Voting Rights Act of 1965, in effect invalidating the key enforcement provision that applies to all or parts of 15 states with past history of voter discrimination.
The case involved Section 5, which gives federal authorities open-ended oversight of states and localities with a history of voter discrimination. Any changes in voting laws and procedures in the covered areas -- which include all or parts of 15 states -- must be "pre-cleared" with Washington.
After the provision was reauthorized by Congress in 2006 for another 25 years, counties in Alabama and North Carolina filed suit, saying the monitoring was burdensome and unwarranted.
Voices from the voting war
Civil rights groups say Section 5 has proved to be an important tool in protecting minority voters from local governments that would set unfair, shifting barriers to the polls. If it is ruled unconstitutional, they warn, the very power and effect of the entire Voting Rights Act would crumble.
But opponents of the provision counter that it should not be enforced in areas where it can be argued that racial discrimination no longer exists.

http://www.cnn.com/2013/06/25/politics/ ... index.html

Have a very nice day.
-fgalkin

[Crossroads Inc.]

And so it begins...

Well fuck, I had been following this case for a while and I had a feeling it was going to be close. A " deeply divided Supreme Court" eh? Willing to bet who voted for what...

Well I guess all those southren states can start putting in thier vote taxes and tests again, of course it will be to stop "voter fraud" Right?

[Mr Bean]

And so it begins...

Well fuck, I had been following this case for a while and I had a feeling it was going to be close. A " deeply divided Supreme Court" eh? Willing to bet who voted for what...

Well I guess all those southren states can start putting in thier vote taxes and tests again, of course it will be to stop "voter fraud" Right?

The best part is the defendant in this case of Shelby County. A county that has had over a dozen voter suppression laws overturned over the years. Keep in mind these are not just laws in the 70s or 80s but laws in 2005 that were overturned because they were designed to suppress minority turnout. So in the case of the county that has a long history of trying to suppress minorities is the county that gets Section 5 overturned.

Lets be blunt in areas of America it's still 1961 and the only reason you don't hear about lynching is over a hundred years of effort to isolate the minorities on the edges of town. People taught from birth that if they called the cops the best they can expect is to be arrested for damage police property when their face gets slammed into a car door. If your a minority in say Henderson North Carolina you know better to answer back when a cop pulls you over.

I've been to place in the south where the town judge, the sheriff and the business owners get together with brothers and cousins for a good old weekend once a month of hunting, fishing, drinking beer and burning a cross while they dress in bedsheets.

Before today these places if they tried to out and out re-instate Jim Crow laws again would be stopped by the Feds. If they tried to mask it, hide it or disguise it, sooner or later people would catch on and the laws tossed out on civil rights grounds. Not any more.

If Obama was a halfway comptent politico now would be a great time for civil rights mark two while the NAACP is pissed and associate groups are interested.

[TimothyC]

Details on Shelby County v. Holder: In Plain English

Today’s holding in Shelby County v. Holder, in Plain English: Today the Court issued its decision in Shelby County v. Holder, the challenge to the constitutionality of the preclearance provisions of the Voting Rights Act. That portion of the Act was designed to prevent discrimination in voting by requiring all state and local governments with a history of voting discrimination to get approval from the federal government before making any changes to their voting laws or procedures, no matter how small. In an opinion by Chief Justice John Roberts that was joined by Justices Scalia, Kennedy, Thomas, and Alito, the Court did not invalidate the principle that preclearance can be required. But much more importantly, it held that Section 4 of the Voting Rights Act, which sets out the formula that is used to determine which state and local governments must comply with Section 5’s preapproval requirement, is unconstitutional and can no longer be used. Thus, although Section 5 survives, it will have no actual effect unless and until Congress can enact a new statute to determine who should be covered by it.

TL;DR: The idea of preclearance was found to be constitutional (section 5), but the current formula used to determine what governments have to abide by it (section 4) was not. Congress is free to implement a new formula that would pass constitutional muster.

[Simon_Jester]

Checking for a quick summary of Section 4, that formula appears to contain the following:

1) Did your state or county have a "test or device" intended to restrict the vote, as of November 1, 1964? [the law was passed in 1965] This includes literacy tests, tests of "good moral character," requirements that an existing registered voter vouch for the prospective voter, and so on.
2) Did your state (or county) have less than 50% voter registration, or less than 50% voter turnout in the election of 1964?

The date of the relevant election was changed with subsequent updates to the law, but that seems to be the gist of it.

I'm having trouble finding the exact reason given for WHY the justices ruled that this formula was unconstitutional...

[Broken]

I wish I could say this ruling surprised me, but it really doesn't. The linked article didn't say, but I wonder how Kennedy justified this (I have no doubt the right-wing of the Court had their arguments ready well before-hand) since it was yet another 5-4 decision and he's been the swing vote for damn near everything. Wonder how long until a new case makes it to the Supreme Court from one of these newly "freed" districts and how many elections will be tainted before it gets looked at again.

[The Duchess of Zeon]

Because it didn't take into account racism in many northern states with large urban black populations, so that it was essentially being used in a discriminatory fashion against southerners without being used against northern states at all. Or to put it simply, the justices made a 100% correct ruling, and now the onus is on congress to update the law with a new formula. But let's see the Kennedies or whatever vote for a law that would make federal enforcement of how blacks are discriminated against in Boston with the selection of polling place locations, the same in Ohio, Michigan, Pennsylvania, etc. The problem was that in political terms it will be a very tough sell for northern democrat lawmakers to admit to the subtle but massive racism in their urban areas, so the ruling which was morally and ethically correct will probably make the situation worse.

[The Duchess of Zeon]

Oh, and let's remember that the Supreme Court warned this could happen if Congress didn't revise the formula back in the early 2000s and again in 2009. Each time Congress ignored the fact that the formula no longer reflected reality in the south and its continuation was unnecessary and discriminatory against particular states, because congressmen in the north didn't want to admit their states had become just as racist toward blacks by systematic disenfranchisement with things like limited voting hours, strict registration laws (you need photo ID in Rhode Island for instance), no mandated public holidays for elections, selecting voting locations which make it difficult for black voters to reach, etc. The Supreme Court is not a legislative body and cannot decide to keep a discriminatory and illicitly outdated portion of a law in function just because Congress is too dysfunctional to replace it. Oh! And you can still enforce the VRA under Section 2 due to the order of a federal judge, so the law won't completely cease to function anyway.

[TimothyC]

The date of the relevant election was changed with subsequent updates to the law, but that seems to be the gist of it.

I'm looking at the 2006 Act, and I'm not seeing any changes in the date, which would mean that the last date change would have been in the 1982 re-authorization. I could be missing them.

I'm having trouble finding the exact reason given for WHY the justices ruled that this formula was unconstitutional...

If the date for when the governments were last checked for discrimination was quite a while in the past, then that would be punishing the son for the sins of the father. On page 4 of the ruling it is stated "nstead re-enacted a formula based on 40-year-old facts having no logical relation to the present day."

I'd also like to note that states and municipalities can still be 'bailed in' to the requirements of the VRA by a federal judge for a set period of time.

I've also pulled the following analysis from the SCOTUSBlog liveblog feed (Full transcript here)

From Tejinder: Yes, we think so. And in fact, it's a real possibility that the DOJ will react to the demise of the coverage formula by bringing "bail in" suits against jurisdictions with a history of violations. We're continuing to look into this, but we think that one real possibility is that the bail-in provision will become a possible substitute for the coverage formula. Potentially covered jurisdictions will probably resist efforts to bail them in on the basis of old violations (as opposed to recent ones), and the issue will likely be litigated fiercely.

[masterarminas]

The date of the relevant election was changed with subsequent updates to the law, but that seems to be the gist of it.

I'm looking at the 2006 Act, and I'm not seeing any changes in the date, which would mean that the last date change would have been in the 1982 re-authorization. I could be missing them.

I'm having trouble finding the exact reason given for WHY the justices ruled that this formula was unconstitutional...

If the date for when the governments were last checked for discrimination was quite a while in the past, then that would be punishing the son for the sins of the father. On page 4 of the ruling it is stated "nstead re-enacted a formula based on 40-year-old facts having no logical relation to the present day."

I'd also like to note that states and municipalities can still be 'bailed in' to the requirements of the VRA by a federal judge for a set period of time.

I've also pulled the following analysis from the SCOTUSBlog liveblog feed (Full transcript here)

From Tejinder: Yes, we think so. And in fact, it's a real possibility that the DOJ will react to the demise of the coverage formula by bringing "bail in" suits against jurisdictions with a history of violations. We're continuing to look into this, but we think that one real possibility is that the bail-in provision will become a possible substitute for the coverage formula. Potentially covered jurisdictions will probably resist efforts to bail them in on the basis of old violations (as opposed to recent ones), and the issue will likely be litigated fiercely.

The last change updated Section 4 to us statistics from 1972 instead of 1964. The formula has not been updated since, despite repeated warnings from the Court over the past 10 years or so that it needed to be updated. THAT was why the Court struck it down.

MA

[TimothyC]

The last change updated Section 4 to us statistics from 1972 instead of 1964. The formula has not been updated since, despite repeated warnings from the Court over the past 10 years or so that it needed to be updated. THAT was why the Court struck it down.

MA

Exactly, by not updating the statistics used in so long, Section 4 of the VRA becomes a Bill of Attainder - which is banned for the federal government under Article 1 Section 9, and banned for the state governments in Article 1 Section 10. Because Section 2 of the VRA requires a Judge to rule or have a finding of discrimination/discriminatory intent it avoids this restriction, and is constitutional.

[Simon_Jester]

The date of the relevant election was changed with subsequent updates to the law, but that seems to be the gist of it.

I'm looking at the 2006 Act, and I'm not seeing any changes in the date, which would mean that the last date change would have been in the 1982 re-authorization. I could be missing them.

I did not say the date was changed with all subsequent updates to the law.

But you seem to have answered my question: the justices found the law unconstitutional because it is permanently based upon what the demographic facts were in the days when disco was young and dinosaurs roamed the Earth.

The obvious thing for Congress to do would be to simply rewrite Section 4 in an unchanged fashion, but mandating that the federal oversight requirement be applied to all jurisdictions that (for example) have less than 50% voter registration as of the last census, and less than 50% voter turnout as of the presidential election before last.

Or something along those lines.

[fgalkin]

Well, that was quick

Just two hours after the Supreme Court reasoned that discrimination is not rampant enough in Southern states to warrant restrictions under the Voting Rights Act, Texas is already advancing a voter ID law and a redistricting map blocked last year for discriminating against black and Latino residents. Texas Attorney General Greg Abbott issued a statement declaring that both measures may go into effect immediately, now that there is no law stopping them from discriminating against minorities.

In 2012, the Justice Department blocked these measures under Section 5 of the Voting Rights Act. Federal courts agreed that both the strict voter ID law and the redistricting map would disproportionately target the state’s fast-growing minority communities. Still, Texas filed an amicus brief with the Supreme Court over the Voting Rights Act case complaining that the DOJ had used “abusive and heavy-handed tactics” to thwart the state’s attempts at voter suppression.

In the case of the new electoral map, a panel of federal judges found that “substantial surgery” was done to predominantly black districts, cutting off representatives’ offices from their strongest fundraising bases. Meanwhile, white Congress members’ districts were either preserved or “redrawn to include particular country clubs and, in one case, the school belonging to the incumbent’s grandchildren.” The new map was also drawn in secret by white Republican representatives, without notifying their black and Latino peers. After the court blocked the map, the legislature approved small changes to appease Democratic lawmakers last week. Now that they are free to use the old maps, however, Gov. Rick Perry (R) could simply veto the new plan and use the more discriminatory maps.

The strict photo ID requirement blocked by the DOJ and a federal court would require Texans to show one of a very narrow list of acceptable photo IDs. Expired gun licenses from other states are considered valid, but Social Security cards and student IDs are not. If voters do not have an ID — as many minorities, seniors, and poor people do not — they must travel at their own expense, produce their birth certificate, and in many cases pay a fee to get an ID.

Thanks to the Supreme Court, the DOJ no longer has any power to block these laws, even with the backing of federal judges who found blatant discrimination. Under the remaining sections of the Voting Rights Act, individuals may sue to kill these measures, but only after they have gone into effect and disenfranchised countless Texans of color.

According to the 2010 Census, non-Hispanic whites have become a minority in Texas, down from 52.4 percent to 45.3 percent of the population. Latinos have accounted for 65 percent of the state’s population growth over the past decade. Projections show that the eligible voter pool will shift to roughly 44 percent white voters and 37 percent Hispanic voters by 2025. Faced with this demographic reality, conservatives have alternated between changing their messaging to appeal to Latino voters, who overwhelmingly supported Democrats in 2012, and making it harder for them to vote.

It is only a matter of time before other states with voter ID laws and other election law changes blocked by the DOJ last year follow Texas’ example. Besides Texas, the attorney generals of Alabama, Arizona, South Dakota, and South Carolina argued that the Voting Rights Act was getting in the way of their ability to enact discriminatory laws.

Linky

Have a very nice day.
-fgalkin

[Simon_Jester]

Disgusting and predictable.

I really wish we had a Congress competent to, y'know, keep laws in working order so that there was no basis for this kind of constitutional challenge. Because I get why there should not be laws which mandate permanent penalties for certain states, based on forty year old data, forever and always. We shouldn't be in a position where a creaky law like that is the only thing stopping them from enacting discriminatory voting.

It's like when the prosecution screws up and evidence gets thrown out in a trial- you know the bastard's guilty, and it's frustrating that the system fucked up in a way that keeps them from being held accountable.

[Serafina]

Why do you get to arbitrarily redefine voting districts anyway, instead of having it based on some sort of guideline? Like, according to actually administrative districts (by town, urban district, whatever?

[Gandalf]

Why do you get to arbitrarily redefine voting districts anyway, instead of having it based on some sort of guideline? Like, according to actually administrative districts (by town, urban district, whatever?

As a rule, voting districts have to contain x people, as a means of ensuring equal representation in the legislature. Otherwise, someone living in a high density urban area has proportionally less representation than a person living in a less populated area.

The issue comes from people being able to redefine the borders of those districts to include/exclude whomever they see fit.

[Serafina]

Yes but - don't the voter districts have to be related to administrative districts at all, or why can they so easily use it to exclude people. I mean they do it by cutting an area with minorities into pieces and then adding pieces to republican areas so that the republicans are in the majority, right? Can they just do that regardless of actual administrative districts (across city or county lines or whatever)?

[The Duchess of Zeon]

I see no reason why, for instance, "A county of greater than 500,000 population shall have one US representative per 500,000 people, with the population of any incorporated city within that count of more than 500,000 people subtracted therefrom", "a city of greater than 500,000 population shall have one US representative per 500,000 people", and "counties of less than 500,000 people within the boundaries of the same state shall be organised into voting districts containing at least 500,000 people", and finally "a state shall vote for representatives at-large across the entire state equal in number to each unit of 500,000 people summed from those excluded by rounding from the other groups, with the state having at least one such representative" would not constitute a fair and equitable means of electing representatives which is not subject to gerrymandering. My specific example would probably need a lot of refining but it's just suggested as a means of looking at the problem differently.

[The Duchess of Zeon]

Yes but - don't the voter districts have to be related to administrative districts at all, or why can they so easily use it to exclude people. I mean they do it by cutting an area with minorities into pieces and then adding pieces to republican areas so that the republicans are in the majority, right? Can they just do that regardless of actual administrative districts (across city or county lines or whatever)?

In the US, yes. Voting districts can be for instance one city block wide and 100 miles long, in the case of a very notorious district formed in Ohio to kick Kucinich out of the US House by the Ohio legislature.

[Terralthra]

I see no reason why, for instance, "A county of greater than 500,000 population shall have one US representative per 500,000 people, with the population of any incorporated city within that count of more than 500,000 people subtracted therefrom", "a city of greater than 500,000 population shall have one US representative per 500,000 people", and "counties of less than 500,000 people within the boundaries of the same state shall be organised into voting districts containing at least 500,000 people", and finally "a state shall vote for representatives at-large across the entire state equal in number to each unit of 500,000 people summed from those excluded by rounding from the other groups, with the state having at least one such representative" would not constitute a fair and equitable means of electing representatives which is not subject to gerrymandering. My specific example would probably need a lot of refining but it's just suggested as a means of looking at the problem differently.

Cities and counties over that number? I mean, take my local area, as an example. SF city/county has 750k residents (or so). That's 1.5 representatives. Alameda county has 1.5 million, that's another 3. Contra Costa county, another million, 2 representatives. San Mateo has 727k, for another 1.5 representatives, and Santa Clara county has another 1.8 million, for 3.5 or so representatives. So, the immediate metropolitan SF Bay Area has 11.5 representatives.

I guarantee you I can apportion 3 representatives in Alameda or Santa Clara counties, that cover ~500k people, to get 3 districts that are:
3 almost certain democratic wins
2 certain democrats + 1 republican nearly-certain win
1 certain democrat + 1 coin toss + 1 certain republican
1 democratic win + 2 republican-favoring wins.

This means that depending on who arranges the districts, I can make the Bay Area as a whole almost a 100% Democratic region, or a majority republican region, and either of those are possible with a roughly 60 D/40 R split in raw population.

How does your method "solve" gerrymandering, exactly?

How are the half-representatives merged? If you round up, then SF, San Mateo, and Santa Clara are over-represented. Round down, and they're under-represented.

Merge them and you're even more subject to gerrymandering.

[Grandmaster Jogurt]

There's several ways to divide up regions fairly using algorithms and things like that. Why bother inventing some roundabout overly-complex system based on counties when if we're going to overhaul the system somehow we might as well change it to something that works?

[The Duchess of Zeon]

I actually regard a government that has representation based on progressively smaller units that allow for progressively more citizen involvement to be more responsive and basically more ideal even if it is not exactly proportional representation (i.e., I'd rather we start with New England Town Meetings electing a slate of electors who then meet in a town-meeting style general assembly of people in that county to elect another slate of electors, who do the same across several counties to finally select a member of the House), but since that's beside the point here, I'll instead just observe that Fina probably has a German example which may address your concerns.

[amigocabal]

Details on Shelby County v. Holder: In Plain English

Today’s holding in Shelby County v. Holder, in Plain English: Today the Court issued its decision in Shelby County v. Holder, the challenge to the constitutionality of the preclearance provisions of the Voting Rights Act. That portion of the Act was designed to prevent discrimination in voting by requiring all state and local governments with a history of voting discrimination to get approval from the federal government before making any changes to their voting laws or procedures, no matter how small. In an opinion by Chief Justice John Roberts that was joined by Justices Scalia, Kennedy, Thomas, and Alito, the Court did not invalidate the principle that preclearance can be required. But much more importantly, it held that Section 4 of the Voting Rights Act, which sets out the formula that is used to determine which state and local governments must comply with Section 5’s preapproval requirement, is unconstitutional and can no longer be used. Thus, although Section 5 survives, it will have no actual effect unless and until Congress can enact a new statute to determine who should be covered by it.

TL;DR: The idea of preclearance was found to be constitutional (section 5), but the current formula used to determine what governments have to abide by it (section 4) was not. Congress is free to implement a new formula that would pass constitutional muster.

Indeed, the Supreme Court plainly held that, "Congress may draft another formula based on
current conditions" Shelby County v. Holder, No. 12-96 (Jun. 25, 2013), op. at 24

I have doubts that any coverage formula enacted by Congress is consistent with the principle of separation of powers. Certainly, a court can find a state or electoral district in violation of the 15th Amendment or Voting Rights Act pursuant to a class action lawsuit filed by voters, and issue an injunction that includes requiring preclearance for changes in election procedures under its broad powers of remedy. But a coverage formula seems to me to declare certain jurisdictions guilty without trial, intruding on a role meant for the judiciary.

The separation for powers issue was not brought up in Holder, and so the Court did not even mention it. Whether coverage formulas violate separation of powers is a question for another day.

[Purple]

Is it just me or is this whole system so insanely complicated and byzantine that maybe, just maybe it can't even be fixed? I mean what is wrong with just having a vote, counting the ballots on a union wide level and assigning seats proportionally as opposed to this strange 1 per X people thing? Than again I will admit that I can't make heads or tails of how your system works beyond it sounding complicated and confusing.

[Rogue 9]

Is it just me or is this whole system so insanely complicated and byzantine that maybe, just maybe it can't even be fixed? I mean what is wrong with just having a vote, counting the ballots on a union wide level and assigning seats proportionally as opposed to this strange 1 per X people thing? Than again I will admit that I can't make heads or tails of how your system works beyond it sounding complicated and confusing.

What's wrong with it is that having a vote on a union wide level for local representatives means that you have no idea who the hell you're voting for. The U.S. system has elections for candidates, not parties.