I suppose that would be OK if it really was non-partisan.
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.
I think you may be overly optomistic about the chances for a new law if the Republicans have the ability to stop it.
There are procedures for getting out from under the effect of the VRA pre-clearance requirement. Most of my state has done so.
That equal sovereignty is a bit of a novel concept isn’t it?
They could have applied the formula to present facts instead of dated facts. I mean is tehre something wrong with the formula itself?
A new formula that applies to current conditions will better protect voting rights than a 47-year-old one did.
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.
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.
Not really, every act of Congress admitting a state included an equality clause. Here’s Wisconsin’s, to choose at random:
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.
Where do you get 12,000 jurisdictions from? Here is the list of covered jurisdictions. Here are the jurisdictions that had obtained 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?
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.
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.
That’s a political question, not a legal one, and SCOTUS shouldn’t be concerned with it.
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:
Bolding mine.
From Northwest Austin Municipal Utility District No. 1 v. Holder:
Good enough for SCOTUS, good enough for me.
Depends. Again, the formula is:
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.
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.
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.
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 should be up to Congress to decide, no?
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.
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.
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.
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!
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.
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.
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.
Equal sovereignty is the basis. From the decision:
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.
Yes, we do have reason to believe that they could not. See Northwest Austin Municipal Utility District No. 1 v. Holder:
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.
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.
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.
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.
“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.
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.
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:
States are equal before the Constitution.
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.
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.
Whether it is the only way is a decision for SCOTUS.
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.
Are there states that have made marijuana legal where the federal government did not do that? If not, then it’s not analogous.
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.
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.
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.”
Equal insofar as we’re dealing with powers not specifically delegated to the federal government.
Agreed.
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).
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.
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:
Bolding mine. Note the emphasis on present, actual discrimination.
Also:
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 advancement of years means new history that must be reflected.
Also:
As Roberts noted, this widespread pattern or practice is no more.
Also:
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.
Ok, on the same page there.
It’s somewhat new in this application, sure, but based on previous cases. Roberts again:
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.
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.