# SCOTUS strikes down part of Voting Rights Act **URL:** \ **Category:** Great Debates\ **Created:** [June 25, 2013, 7:34pm UTC](https://boards.straightdope.com/t/scotus-strikes-down-part-of-voting-rights-act/661905 "2013-06-25T19:34:56Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [June 27, 2013, 4:00pm UTC](https://boards.straightdope.com/t/scotus-strikes-down-part-of-voting-rights-act/661905/41 "2013-06-27T16:00:56Z")
> [@John\_Mace](#): > > > [@Damuri\_Ajashi](#): > > > > Or we need a different way to do preclearance. I think any state with a single party government should require preclearance. This includes California as well as Utah. Or do you think that California doesn’t gerrymander its districts? > > Actually, we don’t anymore. Now we have a “non-partisan committee” to set them. It’s not done by the legislature. I suppose that would be OK if it really was non-partisan. > [@Human\_Action](#): > > That’s how judicial review works; would you rather SCOTUS write a new law? I would rather they not make up entirely new doctrines to overturn a law that protects the franchise. If there is one palce I think the court is entitled to a little overreach it is int the effort to protect the most fundamental right in a democracy. Instead they come up with a new concept to undercut voting rights. > [@](#): > > And frankly, what you describe is the right way to proceed: start fresh with a new formula. I think you may be overly optomistic about the chances for a new law if the Republicans have the ability to stop it. > [@](#): > > I haven’t read all thousand pages, but the Court and/or their clerks have. I have read the DoJ report from 2006, which showed that 0.1% of pre-cleared changes were objected to. Why isn’t that negligible rate, coupled with things like voter ID laws in non-covered states, enough to revisit the issue? There are procedures for getting out from under the effect of the VRA pre-clearance requirement. Most of my state has done so. > [@](#): > > It’s in the decision. To sum up, the states have equal sovereignty. This can be infringed only if there is a compelling reason. The VRA pre-clearance formula was sufficiently detached from current conditions that it no longer sufficed as a compelling reason. That equal sovereignty is a bit of a novel concept isn’t it? > [@Really\_Not\_All\_That\_Bright](#): > > They couldn’t write their own formula. That would have violated separation of powers. They could have rolled back to a previous formula if one existed. They could have applied the formula to present facts instead of dated facts. I mean is tehre something wrong with the formula itself? ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [June 27, 2013, 4:19pm UTC](https://boards.straightdope.com/t/scotus-strikes-down-part-of-voting-rights-act/661905/42 "2013-06-27T16:19:09Z")
> [@Damuri\_Ajashi](#): > > I would rather they not make up entirely new doctrines to overturn a law that protects the franchise. > > If there is one palce I think the court is entitled to a little overreach it is int the effort to protect the most fundamental right in a democracy. Instead they come up with a new concept to undercut voting rights. A new formula that applies to current conditions will _better_ protect voting rights than a 47-year-old one did. > [@Damuri Ajashi](#): > > I think you may be overly optomistic about the chances for a new law if the Republicans have the ability to stop it. Maybe so (though the renewal of the VRA passed by an overwhelming margin), but I’m with **John Mace** in that SOCTUS shouldn’t base its rulings on the current politics in Congress. > [@Damuri Ajashi](#): > > There are procedures for getting out from under the effect of the VRA pre-clearance requirement. Most of my state has done so. Between 1982 and 2009, 17 out of over 12,000 jurisdictions were able to do so. It’s a lengthy, expensive process, primarily imposed on a disproportiately poor area of the country. Until _Northwest Austin Municipal Utility District No. 1 v. Holder_, some covered jurisdictions were legally unable to bail out. > [@Damuri Ajashi](#): > > That equal sovereignty is a bit of a novel concept isn’t it? Not really, every act of Congress admitting a state included an equality clause. Here’s [Wisconsin](http://en.wikisource.org/wiki/An_act_to_enable_the_people_of_Wisconsin_territory_to_form_a_constitution_and_state_government,_and_for_the_admission_of_such_state_into_the_Union)’s, to choose at random: > [@](#): > > …and they are hereby, authorized to form a constitution and State government, for the purpose of being admitted into the Union on an equal footing with the original States in all respects whatsoever > [@Damuri Ajashi](#): > > They could have applied the formula to present facts instead of dated facts. I mean is tehre something wrong with the formula itself? They couldn’t, the formula is: > [@](#): > > b) The provisions of subsection (a) shall apply in any State or in any political subdivision of a state which (1) the Attorney General determines maintained on November 1, 1964, any test or device, and with respect to which (2) the Director of the Census determines that less than 50 percentum of the persons of voting age residing therein were registered on November 1, 1964, or that less than 50 percentum of such persons voted in the presidential election of November 1964. The “datedness” is inherent to the formula. ---
**Author:** ![MOIDALIZE](https://avatars.discourse-cdn.com/v4/letter/m/e274bd/32.png) [@MOIDALIZE](https://boards.straightdope.com/u/MOIDALIZE)\ **Post date:** [June 27, 2013, 5:56pm UTC](https://boards.straightdope.com/t/scotus-strikes-down-part-of-voting-rights-act/661905/43 "2013-06-27T17:56:43Z")
> [@Human\_Action](#): > > A new formula that applies to current conditions will _better_ protect voting rights than a 47-year-old one did. Assuming this Congress will pass one. It seems to me that given that there’s been a “bailout” provision available for 30 years, the fact that there are still so many covered jurisdictions that can’t seem to comply with the law for 10 years doesn’t suggest to me that they’ve changed their ways. > [@](#): > > Between 1982 and 2009, 17 out of over 12,000 jurisdictions were able to do so. It’s a lengthy, expensive process, primarily imposed on a disproportiately poor area of the country. Until _Northwest Austin Municipal Utility District No. 1 v. Holder_, some covered jurisdictions were legally unable to bail out. Where do you get 12,000 jurisdictions from? Here is the list of [covered jurisdictions](http://www.justice.gov/crt/about/vot/sec_5/covered.php). Here are the jurisdictions that had [obtained bailout](http://www.justice.gov/crt/about/vot/misc/sec_4.php#bailout). The only way you get 12,000 is if you count every last township separately in the 9 states that are covered as a whole. When Congress originally passed the VRA, were they supposed to comb through all the towns in Mississippi to figure out which were the “good” towns so they could be excluded from preclearance? > [@](#): > > Not really, every act of Congress admitting a state included an equality clause. Here’s [Wisconsin](http://en.wikisource.org/wiki/An_act_to_enable_the_people_of_Wisconsin_territory_to_form_a_constitution_and_state_government,_and_for_the_admission_of_such_state_into_the_Union)’s, to choose at random: The Fifteenth Amendment trumps any Act of Congress. Section 2 of A15 gives Congress authority to enforce it through appropriate legislation. So I would say that whatever legislative decision Congress makes to enforce the right to vote merits deference. Additionally, there’s nothing in the Constitution that guarantees any kind of state sovereignty vis a vis the federal government. States are sovereign insofar as there’s no superior federal interest at stake. Guaranteeing that citizens can vote regardless of race is clearly an area of federal authority. ---
**Author:** ![Honesty](https://avatars.discourse-cdn.com/v4/letter/h/f04885/32.png) [@Honesty](https://boards.straightdope.com/u/Honesty)\ **Post date:** [June 27, 2013, 6:06pm UTC](https://boards.straightdope.com/t/scotus-strikes-down-part-of-voting-rights-act/661905/44 "2013-06-27T18:06:54Z")
Quite a shame they didn’t take this view in _Raich_, as the pseudoscience behind the marijuana prohibition is over 70 years old. You’d think the Justices would’ve struck down the CSA and told them to use better science to justify the illegality of drugs. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 27, 2013, 6:20pm UTC](https://boards.straightdope.com/t/scotus-strikes-down-part-of-voting-rights-act/661905/45 "2013-06-27T18:20:31Z")
> [@Honesty](#): > > Quite a shame they didn’t take this view in _Raich_, as the pseudoscience behind the marijuana prohibition is over 70 years old. You’d think the Justices would’ve struck down the CSA and told them to use better science to justify the illegality of drugs. Analogy fails. Which states are being treated differently by the federal marijuana laws? ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [June 27, 2013, 6:32pm UTC](https://boards.straightdope.com/t/scotus-strikes-down-part-of-voting-rights-act/661905/46 "2013-06-27T18:32:40Z")
> [@MOIDALIZE](#): > > Assuming this Congress will pass one. That’s a political question, not a legal one, and SCOTUS shouldn’t be concerned with it. > [@MOIDALIZE](#): > > It seems to me that given that there’s been a “bailout” provision available for 30 years, the fact that there are still so many covered jurisdictions that can’t seem to comply with the law for 10 years doesn’t suggest to me that they’ve changed their ways. That’s one possibility, the other is that it takes money and time to bailout, and the DoJ has made it very difficult to do so. That’s what SCOTUS concluded in _Northwest Austin Municipal Utility District No. 1 v. Holder_, at any rate: > [@](#): > > The Government’s contention that the district is subject to §5 under Sheffield not because it is a “political subdivision” but because it is a “State” iscounterintuitive and similarly untenable after the 1982 amendments. **The Government’s contrary interpretation has helped to render the bailout provision all but a nullity**. Bolding mine. > [@MOIDALIZE](#): > > Where do you get 12,000 jurisdictions from? Here is the list of [covered jurisdictions](http://www.justice.gov/crt/about/vot/sec_5/covered.php). Here are the jurisdictions that had [obtained bailout](http://www.justice.gov/crt/about/vot/misc/sec_4.php#bailout). The only way you get 12,000 is if you count every last township separately in the 9 states that are covered as a whole. From _Northwest Austin Municipal Utility District No. 1 v. Holder_: > [@](#): > > Since 1982, only 17 jurisdictions—out of the more than 12,000 covered political subdivisions—have suc-cessfully bailed out of the Act. It is unlikely that Congress intended the provision to have such limited effect. Good enough for SCOTUS, good enough for me. > [@MOIDALIZE](#): > > When Congress originally passed the VRA, were they supposed to comb through all the towns in Mississippi to figure out which were the “good” towns so they could be excluded from preclearance? Depends. Again, the formula is: > [@](#): > > (b) The provisions of subsection (a) shall apply in any State or in any political subdivision of a state which (1) the Attorney General determines maintained on November 1, 1964, any test or device, and with respect to which (2) the Director of the Census determines that less than 50 percentum of the persons of voting age residing therein were registered on November 1, 1964, or that less than 50 percentum of such persons voted in the presidential election of November 1964. If there were state-level discriminatory tests or devices in place, or if the state was below the 50% threshold, then the whole state qualified for Section 5 pre-clearance. Sub-state jurisdictions were still covered if they maintained a test or device or were below that threshold if their state did not. > [@MOIDALIZE](#): > > The Fifteenth Amendment trumps any Act of Congress. Section 2 of A15 gives Congress authority to enforce it through appropriate legislation. So I would say that whatever legislative decision Congress makes to enforce the right to vote merits deference. I was responding to whether equal sovereignty was novel or not. And yes, Congress can enforce the Fifteenth Amendment through appropriate legislation. Section Two of the VRA is an excellent example. However, if the legislation treats the states unequally, there must be a compelling reason for this. > [@MOIDALIZE](#): > > Additionally, there’s nothing in the Constitution that guarantees any kind of state sovereignty vis a vis the federal government. States are sovereign insofar as there’s no superior federal interest at stake. Guaranteeing that citizens can vote regardless of race is clearly an area of federal authority. Well, there’s the 10th Amendment, for one. But yes, federal authority to pass laws under the 15th Amendment trumps, _if_ the law legitimately and rationally serves to guarantee citizens the right to vote on account of race, color, etc. Section 4 does not, because the jurisdictions selected by the pre-clearance formula are no longer linked to jurisdictions that deny the right to vote. You can _assume_ they are, being dastardly Southerners and all, but actual evidence that these and only these jurisdictions need to be pre-cleared is rather thin. It’s also significant that Section 4 was set to sunset after 5 years, not last forever. Each law renewing it must be viewed as a new law and defended against the conditions in effect when the renewal occured. ---
**Author:** ![MOIDALIZE](https://avatars.discourse-cdn.com/v4/letter/m/e274bd/32.png) [@MOIDALIZE](https://boards.straightdope.com/u/MOIDALIZE)\ **Post date:** [June 27, 2013, 6:54pm UTC](https://boards.straightdope.com/t/scotus-strikes-down-part-of-voting-rights-act/661905/47 "2013-06-27T18:54:09Z")
> [@Human\_Action](#): > > Well, there’s the 10th Amendment, for one. But yes, federal authority to pass laws under the 15th Amendment trumps, _if_ the law legitimately and rationally serves to guarantee citizens the right to vote on account of race, color, etc. All the Tenth Amendment says is that powers not specifically delegated to the federal government are reserved for the states. The Fifteenth Amendment delegated new powers. > [@](#): > > Section 4 does not, because the jurisdictions selected by the pre-clearance formula are no longer linked to jurisdictions that deny the right to vote. You can _assume_ they are, being dastardly Southerners and all, but actual evidence that these and only these jurisdictions need to be pre-cleared is rather thin. That should be up to Congress to decide, no? > [@](#): > > It’s also significant that Section 4 was set to sunset after 5 years, not last forever. Each law renewing it must be viewed as a new law and defended against the conditions in effect when the renewal occured. Lots of laws have sunset provisions. That doesn’t mean that Congress decided the problem the law was enacted to deal with would be solved within the term of the sunset, it just binds them to periodically review the law to determine if it’s still needed. They’ve repeatedly decided that it was still needed. ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [June 27, 2013, 7:11pm UTC](https://boards.straightdope.com/t/scotus-strikes-down-part-of-voting-rights-act/661905/48 "2013-06-27T19:11:19Z")
> [@MOIDALIZE](#): > > All the Tenth Amendment says is that powers not specifically delegated to the federal government are reserved for the states. The Fifteenth Amendment delegated new powers. That includes the power to regulate elections: > [@](#): > > “‘the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections.’” Gregory v. Ashcroft, 501 U. S. 452, 461–462 (1991) (quoting Sugarman v. Dougall, 413 U. S. 634, 647 (1973); The Fifteenth did indeed grant new powers, but not the power to treat the states unequally without a compelling, current reason to do so. Remember, only Section 4 is struck down here, not the other parts of the VRA that are justified under the Fifteenth. > [@MOIDALIZE](#): > > That should be up to Congress to decide, no? To a point, sure. But to justify an extreme remedy, that being unequal sovereignty, requires a compelling case. That’s within SCOTUS’ power to review, just like the various levels of review applied to various laws. For example, look at _Romer v. Evans_. Was it up to the state of Colorado whether homosexuals could be a protected class? Yes, until the point where it was found to be unconstitutional. > [@MOIDALIZE](#): > > Lots of laws have sunset provisions. That doesn’t mean that Congress decided the problem the law was enacted to deal with would be solved within the term of the sunset, it just binds them to periodically review the law to determine if it’s still needed. They’ve repeatedly decided that it was still needed. That determination must be weighed against the violation of equal sovereignty. It was, and found wanting. It was especially egregious that the renewal of the VRA in 2006 was for **25** years, meaning that in 2031, these nine states would still be subject to pre-clearance based on an election from 67 years before! ---
**Author:** ![MOIDALIZE](https://avatars.discourse-cdn.com/v4/letter/m/e274bd/32.png) [@MOIDALIZE](https://boards.straightdope.com/u/MOIDALIZE)\ **Post date:** [June 27, 2013, 7:59pm UTC](https://boards.straightdope.com/t/scotus-strikes-down-part-of-voting-rights-act/661905/49 "2013-06-27T19:59:02Z")
> [@Human\_Action](#): > > The Fifteenth did indeed grant new powers, but not the power to treat the states unequally without a compelling, current reason to do so. > > … > > To a point, sure. But to justify an extreme remedy, that being unequal sovereignty, requires a compelling case. The type of limitation you’ve spelled out has no basis in the Constitution. ---
**Author:** ![MOIDALIZE](https://avatars.discourse-cdn.com/v4/letter/m/e274bd/32.png) [@MOIDALIZE](https://boards.straightdope.com/u/MOIDALIZE)\ **Post date:** [June 27, 2013, 8:20pm UTC](https://boards.straightdope.com/t/scotus-strikes-down-part-of-voting-rights-act/661905/50 "2013-06-27T20:20:12Z")
Two other points: > [@Human\_Action](#): > > For example, look at _Romer v. Evans_. Was it up to the state of Colorado whether homosexuals could be a protected class? Yes, until the point where it was found to be unconstitutional. That’s because there was no A15-equivalent for homosexuals. There was no firm constitutional command giving the federal government the authority to ensure equal protection for homosexuals through appropriate legislation, as there is for the right to vote regardless of race. > [@](#): > > It was especially egregious that the renewal of the VRA in 2006 was for **25** years, meaning that in 2031, these nine states would still be subject to pre-clearance based on an election from 67 years before! If towns in Connecticut and Maine that had been previously subject to preclearance could avail themselves of the bailout provision, then we have no reason to believe that jurisdictions in the south could not also avail themselves. The fact that they haven’t strongly suggests that the law is still necessary. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [June 27, 2013, 8:22pm UTC](https://boards.straightdope.com/t/scotus-strikes-down-part-of-voting-rights-act/661905/51 "2013-06-27T20:22:21Z")
Forget about the Supreme Court’s rationalizations for their decisions: judges are a variant of lawyers, and lawyers lie by reflex. The decision is consistent with what you’d expect from partisan hacks seeking to help Republicans suppress the votes of Democrat-leaning minorities. Everthing Robert and his cronies have to say on the topic is hogwash. ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [June 27, 2013, 8:43pm UTC](https://boards.straightdope.com/t/scotus-strikes-down-part-of-voting-rights-act/661905/52 "2013-06-27T20:43:34Z")
> [@MOIDALIZE](#): > > The type of limitation you’ve spelled out has no basis in the Constitution. Equal sovereignty is the basis. From the decision: > [@](#): > > Not only do States retain sovereignty under the Constitution, there is also a “fundamental principle of equal sovereignty” among the States. [Northwest Austin (citing United States v. Louisiana); Lessee of Pollard v. Hagan; Texas v. White.] Over a hundred years ago, this Court explained that our Nation “was and is a union of States, equal in power, dignity and authority.” [Coyle v. Smith.] Indeed, “the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.” Coyle concerned the admission of new States, and Katzenbach rejected the notion that the principle operated as a bar on differential treatment outside that context. At the same time, as we made clear in Northwest Austin, the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States. > [@MOIDALIZE](#): > > That’s because there was no A15-equivalent for homosexuals. There was no firm constitutional command giving the federal government the authority to ensure equal protection for homosexuals through appropriate legislation, as there is for the right to vote regardless of race. The right to vote regardless of race was unaffected by this ruling. Every voting practice that was illegal two days ago is still illegal now. > [@MOIDALIZE](#): > > If towns in Connecticut and Maine that had been previously subject to preclearance could avail themselves of the bailout provision, then we have no reason to believe that jurisdictions in the south could not also avail themselves. The fact that they haven’t strongly suggests that the law is still necessary. Yes, we do have reason to believe that they could not. See Northwest Austin Municipal Utility District No. 1 v. Holder: > [@](#): > > **The Government’s contrary interpretation has helped to render the bailout provision all but a nullity**. Since 1982, only 17 jurisdictions—out of the more than 12,000 covered political subdivisions—have successfully bailed out of the Act. **It is unlikely that Congress intended the provision to have such limited effect**. It’s a Catch-22, really: make bailing out of pre-clearance very difficult, then use the low bailout numbers as evidence to justify keeping pre-clearance. ---
**Author:** ![MOIDALIZE](https://avatars.discourse-cdn.com/v4/letter/m/e274bd/32.png) [@MOIDALIZE](https://boards.straightdope.com/u/MOIDALIZE)\ **Post date:** [June 27, 2013, 9:17pm UTC](https://boards.straightdope.com/t/scotus-strikes-down-part-of-voting-rights-act/661905/53 "2013-06-27T21:17:40Z")
> [@Human\_Action](#): > > Equal sovereignty is the basis. From the decision: In areas where they are sovereign. Where it concerns equal protection of the vote under A15, the states aren’t sovereign. Their authority in that regard is superseded by the federal government. That’s what A15 is for. > [@](#): > > The right to vote regardless of race was unaffected by this ruling. Every voting practice that was illegal two days ago is still illegal now. Who gets to ensure the vindication of that right? A15 says Congress does. Because we found we couldn’t trust the states to do it. That’s the whole point of Section 2. > [@](#): > > Yes, we do have reason to believe that they could not. See Northwest Austin Municipal Utility District No. 1 v. Holder: That’s one case. In a case where the government’s interpretation of the bailout provision makes it an impossibility, then yes, they can be overruled. The Supreme Court just threw the whole thing out. ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [June 27, 2013, 9:50pm UTC](https://boards.straightdope.com/t/scotus-strikes-down-part-of-voting-rights-act/661905/54 "2013-06-27T21:50:18Z")
> [@MOIDALIZE](#): > > In areas where they are sovereign. Where it concerns equal protection of the vote under A15, the states aren’t sovereign. Their authority in that regard is superseded by the federal government. That’s what A15 is for. “Equal” is the key part of “equal sovereignty” in this matter. Further, Congress doesn’t get to decide what laws passed under the Fifteenth are appropriate, SCOTUS does. Congress doesn’t define their own powers. > [@MOIDALIZE](#): > > Who gets to ensure the vindication of that right? A15 says Congress does. Because we found we couldn’t trust the states to do it. That’s the whole point of Section 2. They do, but their power to do so isn’t unlimited. They couldn’t use the Fifteenth to make it illegal to complain about minorities voting, or pass an ex-post-facto law and have retroactive elections, or quarter soldiers in citizen’s homes to ensure compliance. Nor can they use it to impose a unique burden on some states, _unless_ that’s the only way the right to vote regardless of race can be guaranteed. In South Carolina v. Katzenbach, SCOTUS ruled that it was, indeed, the only way this right could be guaranteed, so the unequal sovereignty was acceptable. Once this stopped being true, it stopped being acceptable. > [@MOIDALIZE](#): > > That’s one case. In a case where the government’s interpretation of the bailout provision makes it an impossibility, then yes, they can be overruled. The Supreme Court just threw the whole thing out. They weren’t referring to that one case, hence citing the tiny number of bailouts. Throwing the whole thing out was their only choice, they can’t write a new formula and the current one was unconstitutional. There was no middle way. I’ve been a good sport and addressed all your points, and you’ve been polite and thorough, so how about this: I’ll list the conclusions that lead me to agree with this ruling, and you tell me which ones you disagree with: 1. States are equal before the Constitution. 2. The Fifteenth Amendment gives Congress the power to guarantee the right to vote, which supersedes the Tenth Amendment right of the states to regulate their own elections. 3. This power supersedes the equality of the states, meaning laws may be passed under the Fifteenth that place a unique burden on some states, if and only if that is the only way to guarantee the right to vote. 4. Whether it is the only way is a decision for SCOTUS. ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [June 27, 2013, 10:24pm UTC](https://boards.straightdope.com/t/scotus-strikes-down-part-of-voting-rights-act/661905/55 "2013-06-27T22:24:14Z")
Oh, and: 1. Their decision that it was not is the correct one. ---
**Author:** ![Honesty](https://avatars.discourse-cdn.com/v4/letter/h/f04885/32.png) [@Honesty](https://boards.straightdope.com/u/Honesty)\ **Post date:** [June 27, 2013, 10:25pm UTC](https://boards.straightdope.com/t/scotus-strikes-down-part-of-voting-rights-act/661905/56 "2013-06-27T22:25:54Z")
> [@John\_Mace](#): > > Analogy fails. Which states are being treated differently by the federal marijuana laws? California, for one. The legalization movement failed, in part, due to the federal government threatening to come after the State. If a 50 year old law is “too old” and doesn’t take into account “present realities”, then there are a lot of laws that deserve to be modified. ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [June 27, 2013, 10:44pm UTC](https://boards.straightdope.com/t/scotus-strikes-down-part-of-voting-rights-act/661905/57 "2013-06-27T22:44:42Z")
> [@Honesty](#): > > California, for one. The legalization movement failed, in part, due to the federal government threatening to come after the State. Are there states that have made marijuana legal where the federal government did not do that? If not, then it’s not analogous. > [@Honesty](#): > > If a 50 year old law is “too old” and doesn’t take into account “present realities”, then there are a lot of laws that deserve to be modified. Not a lot, just ones that represent an extraordinary exception to a broad rule, justified by the conditions of the time the law was passed. If Japanese-Americans were still being interned after the war ended, for example, it could be ended on similar reasoning by SCOTUS. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 27, 2013, 11:05pm UTC](https://boards.straightdope.com/t/scotus-strikes-down-part-of-voting-rights-act/661905/58 "2013-06-27T23:05:49Z")
> [@Honesty](#): > > California, for one. The legalization movement failed, in part, due to the federal government threatening to come after the State. See, now your just grasping at straws to try and defend an incorrect position. The federal government did not set up some system where certain state’s drug laws (or lack thereof) were subject to a level of scrutiny that other states were not subject to. This decision does not say it’s OK to discriminate. I just says you are innocent until proven guilty. That’s a concept I think most of us should understand. ---
**Author:** ![MOIDALIZE](https://avatars.discourse-cdn.com/v4/letter/m/e274bd/32.png) [@MOIDALIZE](https://boards.straightdope.com/u/MOIDALIZE)\ **Post date:** [June 27, 2013, 11:06pm UTC](https://boards.straightdope.com/t/scotus-strikes-down-part-of-voting-rights-act/661905/59 "2013-06-27T23:06:36Z")
> [@Human\_Action](#): > > Nor can they use it to impose a unique burden on some states, _unless_ that’s the only way the right to vote regardless of race can be guaranteed. In South Carolina v. Katzenbach, SCOTUS ruled that it was, indeed, the only way this right could be guaranteed, so the unequal sovereignty was acceptable. Once this stopped being true, it stopped being acceptable. That’s a misreading of Katzenbach. I see no mention of any strict scrutiny standard or narrow tailoring requirement in the syllabus of that case. I do see “The Fifteenth Amendment, which is self-executing, supersedes contrary exertions of state power,” “Congress is well within its powers in focusing upon the geographic areas where substantial racial voting discrimination had occurred,” and “the coverage formula is rational in both practice and theory.” > [@](#): > > I’ve been a good sport and addressed all your points, and you’ve been polite and thorough, so how about this: I’ll list the conclusions that lead me to agree with this ruling, and you tell me which ones you disagree with: > > 1. States are equal before the Constitution. > 2. The Fifteenth Amendment gives Congress the power to guarantee the right to vote, which supersedes the Tenth Amendment right of the states to regulate their own elections. > 3. This power supersedes the equality of the states, meaning laws may be passed under the Fifteenth that place a unique burden on some states, if and only if that is the only way to guarantee the right to vote. > 4. Whether it is the only way is a decision for SCOTUS. 1. Equal insofar as we’re dealing with powers not specifically delegated to the federal government. 2. Agreed. 3. Disagree. Such a heightened standard regarding the states has no basis in the Constitution, nor in the jurisprudence (well, at least until Justice Roberts decided it should exist two days ago). 4. Determining appropriate legislation is the job of Congress. Their decisions, as a general matter, are entitled to deference. Disputes over whether a law fails to address the issue it was passed to deal with well enough or efficiently enough is a political question. The Supreme Court is supposed to butt out of those. ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [June 27, 2013, 11:49pm UTC](https://boards.straightdope.com/t/scotus-strikes-down-part-of-voting-rights-act/661905/60 "2013-06-27T23:49:13Z")
> [@MOIDALIZE](#): > > That’s a misreading of Katzenbach. I see no mention of any strict scrutiny standard or narrow tailoring requirement in the syllabus of that case. I do see “The Fifteenth Amendment, which is self-executing, supersedes contrary exertions of state power,” “Congress is well within its powers in focusing upon the geographic areas where substantial racial voting discrimination had occurred,” and “the coverage formula is rational in both practice and theory.” It does supersede state power, I cheerfully granted that. Congress is within its powers in focusing on areas where discrimination has occurred, which they were no longer doing under the old formula. The coverage formula was rational for 1965. Also from Katzenbach: > [@](#): > > Second: The Act intentionally confines these remedies to a small number of States and political subdivisions which in most instances were familiar to Congress by name. [35] This, too, was a permissible method of dealing with the problem. Congress had learned that substantial voting discrimination **presently occurs** in certain sections of the country, and it knew no way of accurately forecasting whether the evil might spread elsewhere in the future. [36] In acceptable legislative fashion, Congress chose to limit its attention to the **geographic areas where immediate action seemed necessary**. See McGowan v. State of Maryland, 366 U.S. 420, 427, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393; Salsburg v. State of Maryland, 346 U.S. 545, 550-554, 74 S.Ct. 280, 282-285, 98 L.Ed.2d 281. The doctrine of the equality of States, invoked by South Carolina, does not bar this approach, for that doctrine applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared. See Coyle v. Smith, 221 U.S. 559, 31 S.Ct. 688, 55 L.Ed. 853, and cases cited therein. > > We now consider the related question of whether the specific States and political subdivisions within § 4(b) of the Act were an appropriate target for the new remedies. South Carolina contends that the coverage formula is awkwardly designed in a number of respects and that it disregards various local conditions which have nothing to do with racial discrimination. These arguments, however, are largely beside the point. [37] Congress began work with **reliable evidence of actual voting discrimination** in a great majority of the States and political subdivisions affected by the new remedies of the Act. The formula eventually evolved to describe these areas was relevant to the problem of voting discrimination, and Congress was therefore entitled to infer a significant danger of the evil in the few remaining States and political subdivisions covered by § 4(b) of the Act. No more was required to justify the application to these areas of Congress’ express powers under the Fifteenth Amendment. Cf. North American Co. v. S.E.C., 327 U.S. 686, 710-711, 66 S.Ct. 785, 798-799, 90 L.Ed. 945; Assigned Car Cases, 274 U.S. 564, 582-583, 47 S.Ct. 727, 733, 71 L.Ed. 1204. Bolding mine. Note the emphasis on present, actual discrimination. Also: > [@](#): > > It was therefore permissible to impose the new remedies on the few remaining States and political subdivisions covered by the formula, at least in the absence of proof that they have been free of substantial voting discrimination in recent years. The proof is now in hand, the covered jurisdictions, have, in fact, been free of substantial voting discrimination in recent years. It is thus no longer permissible to cover them with this formula. Also: > [@](#): > > The constitutional propriety of the Voting Rights Act of 1965 must be judged with reference to the historical experience which it reflects. The advancement of years means new history that must be reflected. Also: > [@](#): > > Moreover, in almost all of these cases, the courts have held that the discrimination was pursuant to a widespread ‘pattern or practice.’ As Roberts noted, this widespread pattern or practice is no more. Also: > [@](#): > > This may have been an uncommon exercise of congressional power, as South Carolina contends, but the Court has recognized that exceptional conditions can justify legislative measures not otherwise appropriate. That’s the key, for me. Exceptional conditions can justify measures not otherwise appropriate. Well, what happens the conditions change? The measure is no longer justified. > [@MOIDALIZE](#): > > 1. Equal insofar as we’re dealing with powers not specifically delegated to the federal government. > 2. Agreed. Ok, on the same page there. > [@MOIDALIZE](#): > > 1. Disagree. Such a heightened standard regarding the states has no basis in the Constitution, nor in the jurisprudence (well, at least until Justice Roberts decided it should exist two days ago). It’s somewhat new in this application, sure, but based on previous cases. Roberts again: > [@](#): > > Not only do States retain sovereignty under the Constitution, there is also a “fundamental principle of equal sovereignty” among the States. [Northwest Austin (citing United States v. Louisiana); Lessee of Pollard v. Hagan; Texas v. White.] Over a hundred years ago, this Court explained that our Nation “was and is a union of States, equal in power, dignity and authority.” [Coyle v. Smith.] Indeed, “the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.” Coyle concerned the admission of new States, and Katzenbach rejected the notion that the principle operated as a bar on differential treatment outside that context. At the same time, as we made clear in Northwest Austin, the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States. I think his is a strong argument: states have long been considered equal to one another, and Katzenbach emphasized that the VRA was a extraordinary remedy. > [@MOIDALIZE](#): > > 1. Determining appropriate legislation is the job of Congress. Their decisions, as a general matter, are entitled to deference. Disputes over whether a law fails to address the issue it was passed to deal with well enough or efficiently enough is a political question. The Supreme Court is supposed to butt out of those. To the extent possible, but “well enough or efficiently enough” wasn’t the bone of contention here. It was that the law constituted an unequal burden on some states. 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