The Supreme Court v. The Voting Rights Act

The Supreme Court granted cert to a challenge to the preclearance provision of the Voting Rights Act on Friday. I wish I was optimistic, but when there’s a clash between real rights and states’ “rights,” we know where the Roberts Court is likely to end up:

So the Supreme Court should uphold Section 5. But will it? It’s difficult to be optimistic. First of all, the Court generally doesn’t hear cases merely to uphold the status quo, and the D.C. Circuit Court opinion it has agreed to review upheld the preclearance provision, leaving the current state of the law undisturbed. This indicates at least some measure of support on the Court for reconsidering Katzenbach. Justice Clarence Thomas is already on the record as believing that Section 5 is unconstitutional, and Justice John Roberts’s opinion leaving that question aside in that same case wasn’t exactly a ringing endorsement of Section 5, either. And, of course, earlier this year the Republican majority on the Court announced a willingness to place radical new judicial restrictions on federal power (although the Affordable Care Act was saved based on Chief Justice Roberts’s reading of the federal tax power).

Much more on why this would be a terrible outcome at the link. More from Serwer.

71 comments on this post.
  1. tonycpsu:

    I strongly support strengthening of the Voting Rights Act, but I understand the argument that you can’t punish states in perpetuity for things they did before the act was passed.

    The way I see it, there are three options, all with significant drawbacks:

    1. Make all states subject to the pre-clearance provisions — has no chance in the world of overcoming the wingnut shit-fit effect, but makes sure that no state can claim their sovereignty is threatened

    2. Get rid of the pre-clearance entirely, and play whack-a-mole with the states like Florida, Ohio, and Pennsylvania that engage in disenfranchisement shenanigans

    3. Some sort of scoring system to determine how badly the states, counties, etc. are doing with respect to voter disenfranchisement, with automatic penalties of 10 years or so after they cross a certain threshold. So, maybe PA gets a warning for the shit they did this year, and if it continues, they get an automatic decade of being subject to Section 5 rules. This undercuts the “we’re not being treated equally” complaint while still carrying forward the ideals of Section 5. Obviously, the devil is in the details on this one, and there would be some subjectivity, but maybe a compromise along these lines would be the best outcome?

  2. UberMitch:

    I wonder about strategic considerations for Nino and the gang for the time being. With Scalia, Roberts, Thomas, and Alito they have enough votes to grant cert whenever they want, so why not pull the trigger now at every opportunity to advance the conservative interest and worry about getting Kennedy on board later. After all, any one of them (or Kennedy) could slip in the bathtub any day and hand Obama a seat to shift the court. They probably view their window as closing.

  3. Scott Lemieux:

    Preclearance isn’t “punishment.” It’s a check and balance that’s perfectly appropriate in this context.

  4. rea:

    The preclearance list is indeed somewhat problematic, because it’s 50 years old and does not reflect current problems. In a sensible world, we’d put places like Ohio, Pennsylvania and all of Florida (not merely 5 counties) on the preclearance list as a result of recent shenanigans. On the other, I’ve never understood why Clyde Township, Allegan county, Michigan was on the list.

    A preclearance list (as opposed to the preclearance list) ought to be unquestionably within Congress’ power under the 15th Amendment, and if Congress would do its job updating the list so that it has a rational basis, there would be no problem.

  5. Glenn:

    Though of course the odds of Congress coming up with a new list of bad actors is probably near zero. (And I don’t mean just because the GOP runs the House now.) And I suspect the Supremes will take advantage of that — i.e., make a ruling pretty much along the lines you just said, knowing that it is the de facto death of Section 5.

  6. Observer:

    I agree with most of your solutions, but not your intentions.

    States (and citizens) should be treated equally under the law. The voting rights act doesn’t do that.

  7. Glenn:

    I do wish that it would be mentioned more often that NYC is actually a preclearance jurisdiction (or at least, Manhattan/Brooklyn/Bronx are I think), to (somewhat) ameliorate the idea that this is just the North wagging its finger at the South.

  8. Scott Lemieux:

    States (and citizens) should be treated equally

    Citizens, yes. States, no. States don’t actually have rights. Plus, if Congress did apply it uniformly the Supreme Court would probably strike it down due to a lack of evidence of formal discrimination in the additional states.

  9. tonycpsu:

    Right, but don’t you eventually have to let the states off the hook? If not now, then when?

    Like I said, I’d be on board with pre-clearance for every state and district, but I do think the other side has a point that at some point you have to give them credit for good behavior.

  10. tonycpsu:

    (To be clear, I’m not saying that any of the states in question have earned their way out of Section 5, but that there should be a formal process for being de-listed.)

  11. Scott Lemieux:

    Right, but don’t you eventually have to let the states off the hook?

    Why? Particularly when, in fact, many are still trying to suppress the vote?

  12. Glenn:

    I think that’s exactly right…they would say there’s no “fit” between the remedy and the problem. It’s a nice Catch-22, really.

  13. rea:

    States (and citizens) should be treated equally under the law

    Well, of course, that’s nonsense, and you don’t really believe it yourself, e. g., Nebraska isn’t entitled to as many naval bases as California. The rule instead is that different treatment has to have a rational basis (even more than that is required if the particular classifications being drawn have a history that makes them suspect).

    Requiring preclearance because of a jurisdiction’s history of discrimination is as rational as placing a convicted criminal or probation.

  14. Davis X. Machina:

    I’m wondering about the New Hampshire towns of Rindge, Millsfield, Pinkham’s Grant (2010 pop. 9), Stewartstown, Stratford, Benton, Antrim, Boscawen, Newington and Unity…

  15. rea:

    Here’s the list, which is somewhat different than what you might guess (and is Sandy Springs, Georgia really all that much better than the rest of the state?)

  16. tonycpsu:

    The ones that are still suppressing the vote should stay on the list. Any that aren’t should at least have an idea of when they’ll be off the list, or what they can do to prove they deserve to be de-listed. I’m very much in favor of Section 5, but I don’t think it’s too much to ask to let states know what they can do to get off the list, or if we’re not willing to do that, let’s just make all 50 states subject to it.

  17. rea:

    The thing is, it’s easy to think of jurisdictions not on the list that arguably should be. The list is obsolete in that sense.

    Texas, though–obviouly Texas belongs on any conceivable list. Other than Clyde Township, it’s hard to think of a jurisdition presently on the list that clearly does not belong there (and someone who knows more about Clyde Twp. [Pop. 2104] might tell me I’m wrong].

  18. tonycpsu:

    Yeah, this is the flip side of my point — a clear “how you get off the list” would obviously have to involve “how you get on the list”, so it would serve as a notice to states like mine that have been flirting with disenfranchisement that they need to cut that shit out.

  19. Bart:

    Not only should it be upheld; they need to add Florida and Arizona to the list.

  20. Scott Lemieux:

    It would be better to make all 50 states subject to it. But that doesn’t make the existing law unconstitutional. “Being suboptimal public policy” isn’t actually a constitutional violation.

  21. Bijan Parsia:

    Any that aren’t should at least have an idea of when they’ll be off the list, or what they can do to prove they deserve to be de-listed.

    Why? I mean, who cares if states have to jump through an extra hoop in passing laws?

    I mean, it’s not like impinging on an individual…surely states have the resources to manage having their voting laws checked and if they are trustworthy then preclearing will go easily.

    I’d be super happy if all 50 states are subject, but I don’t see how it helps to try to get some states off if we can’t get all 50 on.

  22. David Mathias:

    I am too lazy to research the cases about this section of the Voting Rights Act, but I do know that the 15th Amendment says
    “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.”
    Section 2 says nothing about “unless Congress is mean to the southern states, New York City, and parts of the rest of the country.” I realize that in a common law system you build from the original text, but the text itself seems to have a pretty plain meaning.

  23. rea:

    You can argue that the word ‘appropriate’ requires a rational basis–hell I would argue that. ‘Congress shall have power to enforce this article by appropriate legislation’ does not give Congress the power to require residents of Wasilla, Alaska to paint themselves blue on election day.

  24. Hob:

    People keep talking as if section 5 keeps those areas under scrutiny forever, but there’s already a process for removing a jurisdiction from the list. As I understand it, they have to demonstrate that their behavior in this regard has been good for the last ten years. It’s ultimately up to the discretion of a DC district court, but I can’t imagine any approach to this that wouldn’t involve some such judgment call.

  25. Barry:

    “I strongly support strengthening of the Voting Rights Act, but I understand the argument that you can’t punish states in perpetuity for things they did before the act was passed.”

    Why not? Especially as it’s pretty clear that these states will do them again, the moment they are allowed to.

  26. Rick Santorum's Leaky Faucet:

    So I’ll bet my house that Obama replaces RBG sometime in the next four years. And tragically, Thomas was nominated at the tender age of 43, so he’ll be shitting on us for years to come. What about Scalia (and Kennedy). Their age is really beginning to show, especially Scalia. No way he retires under a democratic president, but I’m surprised that his barely suppressed rage and bitterness haven’t finished him off yet

  27. Richard:

    And there are certain counties in specific states that are on the pre-clearance for no reasons I can determine. Is there a reason to include Monterey County, California and Manhattan and Brooklyn?

    I would have no problem with a decision that says you can’t keep a state or county on the pre-clearance list unless you have new factual determinations supporting inclusion every ten years or so.

  28. efgoldman:

    ….especially Scalia. No way he retires under a democratic president, but I’m surprised that his barely suppressed rage and bitterness haven’t finished him off yet

    I keep hoping he can’t control is blood pressure..

  29. Scott Lemieux:

    Is there a reason to include Monterey County, California and Manhattan and Brooklyn?

    Sure — they discriminated in the past. If new changes to voting laws aren’t discriminatory preclearance isn’t an issue. The voting system needs more federal supervision, not less.

  30. tonycpsu:

    Take a look at the list, linked downthread, and tell me that you know that every one of those states, counties, and townships is still a bad actor. While you’re at it, tell me that there are no states, counties, or townships that ought to be on the list that aren’t.

    It seems to me there should be a clear process for getting on and off the list. If we’re not willing to allow that these jurisdictions can clean up their act over time, we don’t have any chance of strengthening it so we can deal with new jurisdictions that are trying to do even worse.

  31. Murc:

    Scalia’s rage and bitterness are what are keeping him alive, not killing him. It works the other way around.

    People like that live forever. Scalia will be 95 and still going on brisk daily walks and schemeing to overturn what will then be century-old provisions of the New Deal.

  32. rea:

    And Hob, up above, links to the procedure for getting your jurisdiction off the preclearance list–which I would think would eliminate just about any constitutional objection, but what do I know?

  33. Richard:

    But the inclusion of Monterey and Manhattan seems arbitrary. Did they discriminate? I guess so but did Monterey discriminate any less than Los Angeles, Riverside or any of the other countries in California? I highly doubt it. And i very much doubt that Monterey has discriminated anytime during the last forty years.

    As I understand it, preclearance requires all voting changes to be subject to DOJ review and the DOJ then decides whether or not the change is discriminatory. Setting aside the question of whether that procedure is constitutional or not, does it make sense to subject Monterey to preclearance review when Los Angeles and Riverside counties are not subject to that review and when there is no evidence of discrimination in Monterey over the last 40 years? My problem is really not with the constitutionality of the provision (not having read the cases or the legislative history, I dont really have an opinion on that) but it just seems that the statute, as currently written, is hard to justify on grounds of common sense (in the absence of some evidence that the states and counties covered have engaged in discrimination over the last forty years). Scott, is it your opinion that if no additional findings are made and if Monterey changes its voting requirements in the year 2068, a hundred years after the act was passed, it should still be subject to preclearance while Los Angeles county should not?

  34. DrDick:

    The ones that are still suppressing the vote should stay on the list.

    That would be pretty much all of them. Actually if you said all states actively suppressing voting needed to be on the list, we would have to greatly expand it. Of course, I favor making it universal, but that will not happen as long as the Republicans control one house of Congress.

  35. DrDick:

    I certainly favor impinging on the rights of the states and putting greater burdens on them than doing the same to individual citizens.

  36. Scott Lemieux:

    If only the Constitution had established a mechanism for making changes to legislation that may be desirable but are not compelled by the Constitution. Perhaps a “congress” of some sort.

  37. Richard:

    Sandy Springs was originally included but used the bail out procedure to get off the preclearance list

  38. Scott Lemieux:

    Should it? I dunno; I think the preclearance requirement should be universal. Would it violate the Constitution? No.

  39. DrDick:

    Given who they elected mayor, it might not be a bad idea, however.

  40. tonycpsu:

    I have not said anywhere that the courts are the exclusive venue by which improvements to the VRA should be imposed. In fact, I am pretty much taking it as a given that SCOTUS will nuke Section 5, and looking ahead to how those of us who favor preclearance in principle can make sure it survives future legal challenges.

  41. Observer:

    If only the Constitution had established a mechanism for making changes to legislation that may be desirable but are not compelled by the Constitution.

    Yea, it’s called a writ of certiori and subsequent ruling against this law that treats states and their citizenry unequal.

  42. Richard:

    You’re probably right on constitutionality. I can’t think of a principled argument why the statute violates the Constitution.

    In terms of rationality, I think the current statute was fairly arbitrary, at least with regard to the inclusion of the northern counties named, when it was passed and gets more arbitrary and irrational with the passage of time. Its constitutional but hard to justify on policy grounds as regards the northern counties included

  43. timb:

    As thousands of documents collected by Congress during re-authorization noted.

    IMHO, this is the worst part: Congress acted in full view of the Court during re-authorization and now the Supremes are goign to act as a Republican super-Legislature again

  44. timb:

    Ask Congress. They’re the ones who held multiple hearings on the subject and then voted almost unanimously

  45. timb:

    How can a statute with literally thousands of page of reports and transcripts to the relevant Congressional be called “arbitrary”?

  46. timb:

    This. Happy people die young. Bitter, hateful people outlive the rest of us

  47. Richard:

    Because I have no clue why Monterey was included but not Los Angeles or Riverside. And why the borough of Manhattan but not the borough of Staten Island. And why Manhattan but not Philadelphia or Pittsburgh or Boston, etc? It seems to me that the inclusion of a couple dozen northern counties, while not including hundreds of others, was arbitrary.

  48. timb:

    Did you go through Congress’s research?

  49. Richard:

    And not even mentioning Pinkham’s Grant, New Hampshire, population of 9. I haven’t read the reports and transcripts presumably attached to the Voting Rights Act and would be curious to see why Pinkham’s Grant and its nine denizens were included (although to be fair, the population of 9 is in the most recent census; back in 1968 it might have been a bustling town of a few dozen) but the State of Florida was not.

  50. Scott Lemieux:

    What constitutional provision requires states to be treated equally under the 15th Amendment? Be specific!

  51. Richard:

    I didn’t go through the Congressional research andfindings. But based on the summaries I’ve read, there is nothing in them to include why certain states and counties were NOT included. So there may be some proof of discrimination in Manhattan but no proof of non-discrimination in Staten Island. And therefore no reason to explain the inclusion of one and the exclusion of the other. That seems pretty arbitrary to me.

    Of course, if you’ve read the research and findings and can correct me, please do so or provide a link that would explain the reason these counties were included and others werent.

  52. Observer:

    What constitutional provision requires states to be treated equally under the 15th Amendment?

    The equal protection clause of the fourteenth amendment. I understand that it applies to state governments, but lately it has been read to apply to the federal government as part of the fifth amendment process.

    Now, if you understand that we now have equal protection from both state and federal government and you also understand that when you treat the states unequally, you inherently treat their citizenry unequally, then you can see my point.

    But beside all that, it’s just a bad idea. What you wish to do is argue technical issues on that favor your issues and not so much on the ones that you don’t like.

    For instance, DOMA was passed by congress, but I don’t see you whining about this administration not enforcing a duly passed federal law, a constitutional requirement of the administration and a requirement of the president’s oath of office.

    Not so much…

  53. jalrin:

    Richard, I have looked at the research and Congress had a very good reason to keep the pre-clearance list the way it is. The covered jurisdictions have MUCH higher rates of corroborated complaints of race discrimination than the rest of the country by tremendous margins. That was a non-arbitrary reason when I took the Bar exam and it is one now.

  54. NonyNony:

    Naw. It’s more like selection bias. Not every bitter, hateful, unhappy person lives forever. It’s just that the ones who die young are unremarkable because they’ve died before anyone could notice just how their bitterness, hatefulness and unhappiness impacts the world.

    Scalia will probably live to a ripe old age, but that’s because he’s already past 50. If being hateful, bitter and angry was going to kill him, it would have killed him before his half-century mark.

  55. NonyNony:

    They have medication for that and he can afford all of the best drugs. Blood pressure and heart disease are not going to be a problem for Scalia – hell he hasn’t even started down the cyborg path yet and he’s got the money to replace whatever organs he wants to replace to keep himself alive until the next Republican comes along to nominate a replacement for him. And that’s even ignoring the fact that as a Federal Supreme Court Justice he’s got access to better health insurance than most people his age would be able to get anyway. Any replacement heart he gets will be on the taxpayer’s bill, and nobody’s going to be looking at his insurance and denying him coverage for it.

  56. Richard:

    With regard to the Southern states versus the Northern states, that is obviously true. Without any question (although I dont think there was a reason to exclude Florida)

    But its the Northern counties where I have a problem. Was there a reason to include Manhattan but exclude Staten Island? And, in California, to include Monterey County and Yuba County but exclude Los Angeles and Riverside and San Diego. I’m pretty much a lifelong California resident and I would be very surprised if there was any evidence to indicate Monterey acted better with regard to voting discrimination than Los Angeles or Riverside. In fact, I would think it was the opposite. In the research you looked at, was there any comparison between Monterey and Yuba (a relatively small county about an hour north of Sacramento) vs. Los Angeles and Riverside?

    And even if there was evidence adduced in 1968, what happens when you have 45 years of no discrimination? Shouldn’t the provision elapse in the wake of that? I know there is a bail out provision but it involves litigating the matter in District Court in DC, a significant cost to a county like Yuba.

    As I said above, I think the pre-clearance provisions of the Act are constitutional but, as applied to the named northern counties in 2012, they sure seem arbitrary and close to irrational.

  57. rea:

    I understand that there were criteria for being put on the list, and that in California in particular, one of the things that got localities on the list was having a substantial Hispanic popultaion and English-only ballot rules.

  58. Richard:

    Could be. I would be surprised that Monterey was alone in 1968 in having an English only ballot, as compared to Riverside, San Diego or any number of counties with a substantial Latino population, but I might be wrong.

  59. jefft452:

    “Plus, if Congress did apply it uniformly the Supreme Court would probably strike it down due to a lack of evidence of formal discrimination in the additional states.”

    Article 1 Section 4
    “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations [if there is evidence of formal discrimination] ”

    The part in brackets is written in invisible ink that only strict constructionists can read

  60. jefft452:

    “For instance, DOMA was passed by congress, but I don’t see you whining about this administration not enforcing a duly passed federal law”

    Bullocks
    Failing to appeal a court ruling that invalidates provisions of DOMA is not “not enforcing a duly passed federal law”

  61. jefft452:

    “Was there a reason to include Manhattan but exclude Staten Island?”

    Yes,
    Congress passed the VRA that had Manhattan on the list, but did not pass a VRA that had Staten Island on the list
    Sorry that that sounds glib, but if you disagree, write your congressman
    Don’t invent a constitutional problem with the law where none exists

  62. Fritz:

    How many preclearance requests are turned down?

    From the Berman article (8/30/2011) called “The GOP War on Voting” in Rolling Stone:

    All told, a dozen states have approved new obstacles to voting. Kansas and Alabama now require would-be voters to provide proof of citizenship before registering. Florida and Texas made it harder for groups like the League of Women Voters to register new voters. Maine repealed Election Day voter registration, which had been on the books since 1973. Five states – Florida, Georgia, Ohio, Tennessee and West Virginia – cut short their early voting periods. Florida and Iowa barred all ex-felons from the polls, disenfranchising thousands of previously eligible voters. And six states controlled by Republican governors and legislatures – Alabama, Kansas, South Carolina, Tennessee, Texas and Wisconsin – will require voters to produce a government-issued ID before casting ballots. More than 10 percent of U.S. citizens lack such identification, and the numbers are even higher among constituencies that traditionally lean Democratic – including 18 percent of young voters and 25 percent of African-Americans.

    Read more: http://www.rollingstone.com/politics/news/the-gop-war-on-voting-20110830#ixzz2C36knPE0

    It should be noted that Alabama, Georgia, South Carolina, and Texas are already under preclearance. I’m assuming that they already received approval for these changes. If what they’re doing is, as is argued, illegitimate, unconstitutional, and discriminatory, what is the Obama DOJ up to?

  63. Joe:

    In addition, given congressional gridlock and what we’ll charitably call Republican indifference to state vote suppression, the result of striking down Section 5 almost certainly wouldn’t be “leveling up” to a uniformly robust application of the VRA but “leveling down” to the VRA not being effectively applied anywhere.

    Perhaps. But, the re-authorization by great numbers provides some amount of hope, putting aside Scalia’s argument in NAMUNDO v. Holder that somehow that was an argument against the law (some “too popular” rule, apparently — see oral argument).

  64. Observer:

    Yes…it is.

    It’s not the place of the executive branch to judge..and judge Obama did when he stated that he thought the law to be unconstitutional.

    The executive branch is not a court. They do not have the luxury of making those decisions….or maybe now they do.

    All hail King Obama

  65. DrDick:

    Somebody has a sad. Those meanies on the left stole his election having more votes than he did.

  66. Richard:

    I didn’t claim a constitutional violation. In fact explicitly said I didn’t find one. I did say that the decision to include Monterey but not Los Angeles and Manhattan but not Staten Island seemed arbitrary and bordered on the irrational

  67. Observer:

    Drone Strikes
    Troops in Africa
    Executive Orders

    Long live the King

  68. Scott Lemieux:

    The equal protection clause of the fourteenth amendment.

    Er:

    nor deny to any person within its jurisdiction the equal protection of the laws

    So no, but thanks for playing! As for your other argument, I don’t opposed judicial review. But I do believe that it requires that some constitutional provision be violated.

  69. djw:

    The equal protection clause of the fourteenth amendment. I understand that it applies to state governments, but lately it has been read to apply to the federal government as part of the fifth amendment process.

    Now, if you understand that we now have equal protection from both state and federal government and you also understand that when you treat the states unequally, you inherently treat their citizenry unequally, then you can see my point.

    This is clearly nonsense as a matter of constitutional law, and it should be, but I must admit it deserves some points for creativity.

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