Justice Antonin Scalia suggested that the continuation of Section 5 of the Voting Rights Act represented the “perpetuation of racial entitlement,” saying that lawmakers had only voted to renew the act in 2006 because there wasn’t anything to be gained politically from voting against it…
“Even the name of it is wonderful, the Voting Rights Act. Who’s going to vote against that?” Scalia wondered. He said that the Voting Rights Act had effectively created “black districts by law.”
The issue seems relatively straightforward to me. And it doesn’t rest (at least directly) on who gets “enfranchised.”
Both the Fourteenth and Fifteenth Amendments empower Congress to act to enforce their provisions. Congress has acted. How the Court feels it is within their province to act as a “super-legislature” is beyond me.
As a congressman, I would not vote to reauthorize this law. But as a judge, I would uphold it.
I can’t help but feel a little shadenfraude at this spectre. Liberals have a long record of asking the court to act as a super-legislature. Now that the court is doing so in a direction they don’t approve of, they’re shocked, shocked to discover there’s gambling going on here.
It’s not a matter of a superlegislature. The issue at question is equal protection (and also, to an extent federalism). And it’s a legitimately debatable issue. What’s at issue here is preclearance. The law mandates that certain areas, which were defined when the law was passed, where there had been discriminatory voting patterns at the time, get approval from the Attorney General or the US District Court for DC, before they make any changes in their voting procedures, having to show that the change won’t abridge the right to vote based on race, color, or minority language. If they can’t show that, it’s denied. Covered areas can be removed from the list, but it’s a long and arduous process (although, as per a Supreme Court decision, easier than it was).
Obviously, this raises an equal protection issue. A voting board in Alabama will find it harder to make changes in voting procedure than a voting board in Vermont. The justification at the time, of course, was that those jurisdictions had shown a propensity to change their voting laws limit minority voting, so it was reasonable for them to show that that wouldn’t be a result of future voting laws changes.
But it’s been almost 50 years now since the law was passed, and things change in 50 years. The rationale for the law was reasonable at the time, but is it still? Has the situation changed so that there’s no longer a rational relationship between those areas under preclearance and propensity to discriminate based on race or language in voting? And if there’s not that relationship anymore, . .if places are on the list that are less discriminatory than places not on the list, then the areas that are on the list are just on the list because of inertia and prejudice, and inertia and prejudice are pretty weak reasons to allow discriminatory treatment by the Federal government.
So, the plaintiffs in this situation are wronged because they have less opportunity to do what they shouldn’t want to do, and ought not be permitted to do? Or that they suffer the massive indignity of Justice Dept supervision?
I can’t see an equal protection issue, because no one’s rights are actually infringed, no one is harmed. You don’t have an individual right to change election procedures to disadvantage racial minorities, so if you are unequally blocked from doing so … where’s the problem?
I must admit I’m not all that clear on what is being said here, but happily we have a statistical expert already on the case, so I yield the floor to Terr.
Federalism is simply not in play. Federalism refers to the distinction between state powers – plenary in nature – and federal powers, supreme but enumerated. You’ll find few more staunch supporters of that distinction than I, but here it’s not in play, because the Constitution explicitly grants those powers to Congress.
In other words, I might say to someone who demands that the feds exercise power through some weak application of the Commerce Clause, “Hey, go pass an amendment; then I’ll listen to you.” Here, the amendment has been passed. The supreme law of the land grants Congress the power, period.
The law includes judicial review, which covers the Equal Protection claims.
I sometimes feel like I’m the only person on the freaking planet to be interested in a framework of governance in which we agree upon the rules in advance, and then live with them, or change them. Here’s “my side” supposedly interested in the plain text of the law, contorting themselves just like the land’s most liberal liberal in an effort to find a way to reach their own desired outcome.
I’d love to see Section 5 shitcanned. I’m absolutely convinced it’s of no real value.
But not by the judiciary. Because it’s an absolutely proper exercise of Congressional power.
Yes, I do know. And that’s exactly what’s happening. If Sec. 5 is overturned as unconstitutional, it will be exactly that: activist conservative judges legislating from the bench.
(Assuming they don’t advance some reasoning I haven’t considered – I am willing to be educated on some legitimate theory under which such a decision could be made. But I surely don’t see it.)
Unless the standards for judicial review are so onerous as to represent a nullity. You can’t just say "Well, there’s judicial review built into the law, and therefore EP is covered. Lets say the law said (and it doesn’t, I’m making an absurd example), “In order to be removed from the list, the covered jurisdiction must prove to the court that no person in the jurisdiction who has sought to vote has ever or will ever be unable to cast a ballot.”
That would provide judicial review, but it still wouldn’t cover Equal Protection because it would provide such a restrictive standard that it’s unable to be met. The whole justification for the law is that the right of the state to determine voting procedures is superseded by the right of the individual to cast a ballot without being impaired by his race. Scalia’s comments seem to reflect his belief that Congressional voting for re-authorization of those parts have grown unmoored from the balancing…that in voting whether or not to reauthorize the bill sections, Congress no longer analyzes whether the bill sections are necessary to accomplish their goals; that the vote to extend has just become pro forma, and doesn’t reflect any congressional intent other than to avoid being accused of racism.
If this were another issue, Scalia himself would say that as long as the text of the bill is not ambiguous, Congressional intent is expressed only through the bill’s plain language.
So - the gist of the story, Roberts looked at the US Census data and his statement was correct. Since that is the only place where there is comparative data for voter turnout among states, there is no rebuttal to Roberts’ numbers.
The criticism offered in the article that you apparently cannot grasp is not so much a contradiction as a criticism. Mr. MacDonald is suggesting that the numbers Mr Roberts is basing his opinion on are not reliable, not that they are false. As a certifiable mathtard, I am not conversant enough with statistics and their analysis to offer a firm opinion, and I don’t.
See it! Its right there:
Now, what I can do is keep up with the news and see if anyone offers a rebuttal to Mr MacDonalds criticism, someone with a similar level of bona fides as he has. So far, nothing. So, the crisply reasoned statistical rebuttal you are about to offer will be the first!