Legislatures decide when to make those changes, not courts. The legislature voted overwhelmingly just a few years ago to renew it as is. The findings were properly made almost unanimously by the legislature. The court improperly overturned the legislature’s findings because they were too narrowly drawn to solve the whole problem, which by the way, the majority decided doesn’t really exist anymore. The reason this is a bad decision, even the worst decision ever made by the US Supreme Court, is that a near unanimous decision to remedy racial discrimination enacted by the legislature, with previous challenges to its constitutionality being rebuffed for 50 years, the court substituted its own one vote majority decision that it was no longer needed to address a very real problem the people and the Congress found to be continuing. The idea that certain states no longer discriminate based on skin color was put to the lie less than two hours after the decision came down by the Great Racist State of Texas which started forcing through just those changes. The Congress was and is authorized, by the Constitution, to prevent states with a history of racism from making access to voting difficult and put the burden on the states to show the need to change before the change is made. The majority decision now puts the burden on the individual voters after they have already been discriminated against.
This is worse than Bush v. Gore in that it can now be applied to any issue a majority on the court wishes to substitute its values in place of the Congress in every case, and worse than Dred Scott, which at least had the idiotic fig leaf that slavery was a legal reality at the time.
This is a huge power grab that gives the Supreme Court the power to decide that a Congressional solution to a problem is widely tailored enough to make an effective solution, flying in the face of a century and half of jurisprudence that required that solutions be only narrowly tailored to solve a problem. Not wide enough? Strike it down. Not narrow enough? Strike it down. It has got to be just right, and the only body that makes a finding that counts is the Supreme Court. Mere plurality opinion based on sense of the times is a distinct possibility, majority opinions enacting the spirit of the day has now happened.
And as a middle aged white guy, I have to tell you, racism is still out there and real. It’s amazing the racism and sexism middle aged white males will assume you agree with when no one else is around. Racism is very real and so are changes to state laws that are intended to hinder minority voter turnout. To put the burden on the individual voter after she has been turned away at the polls rather than on the state with a racist history (because not all states have a racist history) is just pure bullshit. The world we lived in hasn’t changed that much. What the Supreme Court here has done is saying that Congress cannot reach the problem in the racist history states unless it reaches the problems in all the states. Up until yesterday what was constitutional is now unconstitutional. On strict party lines too.
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?
I’m not saying taht racism isn’t a problem anymore but it is largely a paritsan problem rather than a racist one. If Blacks started voting overwhelmingly republican all of a sudden, I bet the districting process would look very different.
They threw out an outdated mathod of protecting voting rights for none at all.
Why was this particular formulation no longer acceptable? There were contemporaneous studies and findings (over a thousand pages IIRC) associated with the reauthorization of the VRA supporting the current status. Why weren’t those things good enough?
The venn diagram of the most racist states in 1964 and the most racist states in 2013 have a LOT of overlap. You can be in favor of improvement without throwing out what you already have until you get something better in place.
What was so unconstitutional about the current formula?
I’ve heard by liberal friends use this argument, but it doesn’t make sense. If I’m in a terrible car accident, but I’m given morphine for pain, does that mean I should have prescription morphine for the rest of my life? Of course not.
Like my morphine, Section 4 and 5 of the VRA were to be temporary, extraordinary measures to break the back of entrenched power that set up a system where only 10 to 20 percent of eligible blacks voted. To continue the program based upon what a state did on November 1, 1964 has absolutely no rational basis.
I posted in the other thread (that got no responses) that I thought this was a great compromise decision that everyone should be happy with. If you think a state or locality is discrimination against minorities, they can be taken to court and put under pre-clearance requirements. I like that part: The feds must prove that a locality has done something wrong for pre-clearance, not simply say that since they did it 50 years ago they will remain on pre-clearance always and forever.
But racism is not pain from a car accident that goes away in a few weeks. This is a legislative remedy to oppression, Jim Crow laws, and deep seated racism. The “doctor” determined just as recently as 2006, by a 10 to one margin in the House and by a unanimous vote in the Senate that the prescription needed to be renewed for another 25 years. They saw an enormous need for it, and it wasn’t controversial. It wasn’t political in Congress. But it sure was in the Supreme Court.
Congress, though, is bound by their power under the constitution. (As we saw in the DOMA case today). They are allowed to pass laws to remedy racial discrimination in voting, but it must be rational about it. Using standards from November 1, 1964 does not further this goal. Under the new scheme, the feds have to show that these areas signaled out for special control must be discriminating as of 2013.
I have no problem with that and honestly can’t see why anyone else would.
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?/QUOTE]
Actually, we don’t anymore. Now we have a “non-partisan committee” to set them. It’s not done by the legislature.
I think you’re mischaracterizing the decision. It doesn’t state that the law against voter discrimination is no longer needed, or that states no longer discriminate on skin color, but rather that the formula used in Section 4 wasn’t addressing these problems in a way that justified unequal sovereignty.
Speaking of voter ID laws, note the states that have them: some are covered under Section 5, and some are not. Clearly, the current formula isn’t matching areas where discrimination occurs to areas required to pre-clear.
The federal government treating states differently is a dangerous, extreme remedy that requires a compelling rationale, which was found to not exist. If you want to burden all states equally, fine. If you want to link the burden to current electoral practices, fine. If you want to base it on the events of 47 years ago? Unacceptable.
A law that’s narrowly tailored to solve a problem in 1964 might not be so narrowly tailored in 2013. Events and reality changes over time.
No, the Court has said that the current formula doesn’t sufficiently address the problem: it ignores both changes for the better in the covered states, and changes for the worse in non-covered states.
If you want pre-clearance to return, that’s an Act of Congress away. I don’t see how any right-minded person could be opposed to aligning pre-clearance with the places that need it now, rather than assuming the list is identical to what it would’ve been in 1965. That both punishes areas that don’t deserve, and lets ones that do off the proverbial hook, for the sake of pretending that all racism is confined to the South and a handful of other districts.
That’s how judicial review works; would you rather SCOTUS write a new law?
And frankly, what you describe is the right way to proceed: start fresh with a new formula.
It’s in the decision:
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?
Yes, Congress could have done that, but they failed. Now, the ball is in their court again.
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.
When Congress legislates under its 14th Amendment powers, it has to have a sufficient legislative history to support the enactment. This isn’t a new thing. Parts of the Religious Freedom Restoration Act were overturned for the same reason.
I can see the argument Human Action is making. The provision treats states differently, 50 years have passed and the old formula doesn’t map perfectly to contemporary discrimination patterns. So SCOTUS got rid of it.
but I think this does go too far. “No logical relation to the present day” simply doesn’t cut it. Part of my problem, though, is that I tend to rely on things like the ‘stick yer head out a window’ test. Just freakin’ pay attention! Yes, the South still discriminates, and would do so more if it could. For centuries, their central institutions were grounded in discrimination. The old formula was put in place because it defined the most discriminatory places in America. Some people are still alive and pissed off about the VRA in these places. Several states advanced voter-ID legislation the very day after the VRA was gutted, legislation that had been blocked by the VRA merely hours before. This is not a surprise- these places are still prone to what the VRA addresses.
The fact that discrimination patterns have changed is that people can more easily get away with it in the ‘new’ red states. All this SCOTUS decision does is broaden the area where people can get away with it more easily. That it does so in what appears to be such a partisan way also smells funny.
So the stick yer head out a window test wants to know: why strip voter protections first? Why create conditions that make discrimination likely to occur more? Why not stipulate that a new formula has to be agreed upon before the old (effective if not perfect) one is tossed out?
For better or for worse, I don’t think the court is there to just scold Congress into doing what the court thinks is necessary. (We had that here in Ohio and it did not work. The state supreme court ruled the current method of school funding unconstitutional 14 years ago, but said the current method could stay until the state decided on a new one. Guess what never happened.)
Well, pragmatism may not be high up the list of SCOTUS motives, but ISTM that we’ve gone from a reasonably descriptive formula (a bunch of former slave states) to no formula at all, since “things have changed”. When the choice appears to be between discriminating against more people vs. less distorted election results, why choose more discrimination? And, is it ever the case that things have not changed?
Seems like chasing a technicality while losing track of the big picture. The law can be like that I guess…
When the coverage formula is described as a formula, they mean exactly that. Section 4 wasn’t just a list of former Confederate states, it defined an actual formula:
Your argument, that the VRA formula was reverse-engineered to cover certain districts based on their history (“We need to cover the South, create a formula that will cover the South”), was considered and rejected by the Court:
As you can see, the coverage was never just “The South”. The coverage formula was found to be Constitutional in Katzenbach because it was rationally relevant to the problem. 47 years hence, when many Southern districts are both majority black and have majority-black governments, this is no longer so. States are not monoliths, after all, they consist of thousands of voting districts. Why should they all be treated the same, regardless of whether they’ve practiced voter discrimination in the last 47 years?
Assuming for the sake of discussion that all voter-ID laws are discriminatory, what do you make of the fact that Indiana has such a law, despite not being covered by the VRA? As does Kansas, which isn’t covered. And Hawaii. And Idaho, and Michigan, and New Hampshire. Again we see a basis for overturning Section 4: it allows some states to discriminate, while forbidding others to do so. This violates equal sovereignty, and offends my sense of justice. Either everywhere can discriminate, or nowhere. (Better nowhere).
It makes the states equal. Any new coverage formula must be based on current conditions, and thus address actual discrimination wherever it occurs, not where it has occured. This is a good thing: districts that don’t discriminate are freed from this burden, those that do but weren’t covered before now would be.
I don’t know if SCOTUS had that option…if you mean something like Brown v. Board’s “with all deliberate speed”, that didn’t work out so well.
The VRA has been keeping certain states from discriminating in the present tense, so this argument does not strike me as a sound basis for doing away with the VRA in any particular area. The result, again, seems to be that the places most prone to discrimination will be released from special scrutiny only because the special scrutiny they have been subjected to since 1965 is what has been preventing them from discriminating all this time, creating the impression that ‘things have changed’ but seeming to (blindly) create the effect of changing them back. But again, I see your point on how white flight and changing demographics along with other factors have changed the discrimination map, and how it has spread to areas not subjected to special scrutiny under the VRA. And I see the point of desiring to treat the states equally, but I don’t see these things leading to the conclusion that we need to let discrimination off the leash everywhere. The result, as we can already see, is more discrimination.
And, going back to the stick yer head out a window test, what I think has a lot of people upset is the notion that Congress is required to devise a new formula before the VRA can be enforced in the way it has been. Anyone who has been paying attention will have noticed that 1) the Republicans are the ones who stand to benefit from increasing voter discrimination and 2) the Republicans prevent anything and everything from moving through Congress, considerations of justice be damned. It makes the SCOTUS appear partial and partisan.
I, for one, don’t want the SCOTUS to base it’s decisions about the Constitution on which way the political winds happen to be blowing in Congress at the moment.
How do we know that? Again, per the DoJ, 0.1% of pre-clearance changes were objected to in the 1996-2006 review period. How do we know that these 12,000 districts, and only those 12,000, are chomping at the bit to implement more discriminatory practices? “Well, they did such-and-such 47 years ago” isn’t remotely sufficient.
How do you know that this is the case? Why should the places that were prone to discrimination in 1964 be the same ones that are prone to discrimination now?
Not just spread to other areas, but also departed some that were covered. Mississippi, for instance, is 37% black, and has many townships and other jurisdications that are majority black and/or have majority-black elected governments. Do they have to pre-clear too? Under the old formula, yes. Which is senseless.
Congress has had the chance to change the formula, over and over again, most recently in 2006. They opted to rubber-stamp the 1965 version again and again. This failure is on them, not the Supreme Court.
I’m no legal expert, but I don’t think SCOTUS had the option to create a new formula themselves, as that would be writing law. I don’t know if if they had the option to rule that Section 4 would be struck down in, say, 18 months or something like that. If they did, then an argument could be made that that’s what they should have done. I honestly don’t know.
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.
That’s what I figured. Do you know if they had the option to delay striking down Section 4 for some stated period of time, to give Congress time to pass a new formula?