SCOTUS strikes down part of Voting Rights Act

[Try2B_Comprehensive]

@Human_Action

I’m with John Mace in that SOCTUS shouldn’t base its rulings on the current politics in Congress.

So am I.

I don’t know what to do with the value of ‘pragmatism’. [I am not confident I could map all the values of SCOTUS properly, but surely Impartiality comes before Pragmatism.] Clearly there is going to be an increase in discrimination as a result of this decision, and for political reasons. Our system will have to tackle the loose ends in some other way.

[UltraVires]

@MOIDALIZE

Equal insofar as we’re dealing with powers not specifically delegated to the federal government.

Would you concede that there are limits on the 15th amendment power of Congress? Surely they can’t do anything and everything that they might irrationally think is peripherally related to enforcing voting rights for racial minorities.

Hypo: The 26th amendment permits Congress to enforce an 18 year old person’s voting rights. Could it pass a law saying that any state that did not allow an 18 year old to vote on August 14, 1884 is required to pre-clear election changes with the federal government? Or under the guise of eliminating racial discrimination in voting, could Congress federalize every election law of all 50 states under the guise that a state might discriminate?

I think that’s the problem we have here: rationality. You can’t point to what a state did in 1964 and claim that fact, in and of itself, justifies any type of federal restrictions in 2013. That’s exactly what Congress did.

Any the sky isn’t falling… Section 3 allows a court action to put a locality back on pre-clearance if it is shown that locality is discriminating TODAY. Basically a fresh start. So, if your side sees abuses, the ACLU can start a court action to put the state back on pre-clearance.

[MOIDALIZE]

@jtgain

Would you concede that there are limits on the 15th amendment power of Congress?

Why are you so interested in limiting the Fifteenth Amendment?

@Human_Action

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:

…

Look, I’m not really interested in your personal opinion on whether racial discrimination in voting has been solved, or whether the former Confederate states are being treated fairly. We’re talking about what the Supreme Court did, and how and why. Justice Roberts’ opinion is predicated on a legal standard that he introduced to this case, that didn’t exist before. If you don’t believe me, will you believe federal appellate court judge Richard Posner?

Shelby County v. Holder, decided Tuesday, struck down a key part of the Voting Rights Act (the part requiring certain states with a history of racial discrimination in voting to obtain federal permission in advance to change their voting procedures—called “preclearance”) as violating the “fundamental principle of equal sovereignty” of the states. This is a principle of constitutional law of which I had never heard—for the excellent reason that, as Eric points out and I will elaborate upon briefly, there is no such principle.

Section 3 of Article IV of the Constitution authorizes Congress to admit new states to the Union, as it has done many times, but says nothing about the terms on which they are to be admitted. Usually when new states are admitted it is on the same terms as the existing ones. But not always: Utah and several other western states were required as a condition of admission to outlaw polygamy—a novel condition. Not that any other state permitted polygamy. But other states, not having been subjected to such a condition when they were admitted, were free to permit polygamy without risk of being expelled from the Union.

It’s possible that the federal government would subject a state to unequal treatment so arbitrary and oppressive as to justify a ruling that Congress exceeded its constitutional authority. But Justice Ruth Bader Ginsburg’s very impressive opinion…marshals convincing evidence that the reasons Congress has for treating some states differently for purposes of the Voting Rights Act are not arbitrary, though they are less needful than they were in 1965, when the law was first enacted.

That evidence—the record before Congress—should have been the end of this case. For apart from the spurious principle of equal sovereignty, all that the majority had on which to base its decision was tenderness for “states’ rights.” One doubts that this actually is a primary value for any of the justices. The same conservative majority that decided Shelby had rejected a more cogent argument for states’ rights when it held three years ago in McDonald v. City of Chicago that the Second Amendment—a provision of the Constitution designed to secure state autonomy—specifically, the right of states to maintain their own little armies, the militias, against federal abolition—creates rights against states’ limiting gun ownership. It seems that the court’s regard is not for states’ rights in some abstract sense but for particular policies that a majority of justices strongly favors.

Emphasis mine. Seriously, go read the whole thing. This was a horrible ruling from an activist conservative bench. I especially enjoy how Justice Scalia, a day after being such a staunch supporter of states’ rights in the face of federal overreach , had this to say in dissent in Windsor:

It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere “primary” in its role.

That’s some quality chutzpah right there.

And if you think about this “state sovereignty” concept for more than a second, you’ll realize how ridiculous it is, because federal law creates all sorts of inequalities between the states. Do we have to abolish the EPA because it puts more of a burden on industrial states? Does federal disaster aid need to be spent equally in all the states? Where does this states’ rights nonsense end?

[Human_Action]

@MOIDALIZE

Look, I’m not really interested in your personal opinion on whether racial discrimination in voting has been solved, or whether the former Confederate states are being treated fairly.

Ok, so no further thoughts on Katzenbach? Fair enough.

[QUOTE=MOIDALIZE]
We’re talking about what the Supreme Court did, and how and why. Justice Roberts’ opinion is predicated on a legal standard that he introduced to this case, that didn’t exist before. If you don’t believe me, will you believe federal appellate court judge Richard Posner?
[/quote]

First, even if the standard is new, that doesn’t mean it’s wrong. Unless you want to throw out every post-1789 standard.

Second, Posner writes:

It’s possible that the federal government would subject a state to unequal treatment so arbitrary and oppressive as to justify a ruling that Congress exceeded its constitutional authority.

That possibility is exactly what was found in this case.

But Justice Ruth Bader Ginsburg’s very impressive opinion…marshals convincing evidence that the reasons Congress has for treating some states differently for purposes of the Voting Rights Act are not arbitrary, though they are less needful than they were in 1965, when the law was first enacted.

Gingsburg makes a fine case that pre-clearance is still needed. What Ginsburg barely addesses is where it is needed, i.e. the formula. Instead, we get platitudes:

There is no question, moreover, that the covered jurisdictions have a unique history of problems with racial discrimination in voting. Ante, at 12–13. Consideration of this long history, still in living memory, was altogether appropriate. The Court criticizes Congress for failing to recognize that “history did not end in 1965.” Ante, at 20. But the Court ignores that “what’s past is prologue.” W. Shakespeare, The Tempest, act 2, sc. 1. And “[t]hose who cannot remember the past are condemned to repeat it.” 1
G. Santayana, The Life of Reason 284 (1905). Congress was especially mindful of the need to reinforce the gains already made and to prevent backsliding.

And treating the entire bloc of covered jurisdictions as a monolith:

Although covered jurisdictions account for less than 25 percent of the country’s population, the Katz study revealed that they accounted for 56 percent of successful §2 litigation since 1982.

What, all of them, at an equal rate? And what of the non-covered jurisdictions where these §2 suits are occuring, do they not need to be brought into coverage? Apparently not.

Oh, and:

Congress was satisfied that the VRA’s bailout mechanism provided an effective means of adjusting the VRA’scoverage over time.

SCOTUS had already found that it was not, in fact, an effective means of adjusting the coverage over time, which Ginsburg ignores. 17 jurisdictions out of 12,000 from '82 to '06, remember? And 200 total since 1965. If the bail-out mechanism was functioning, then yes, there’d be no need for the Shelby ruling. But it wasn’t.

@MOIDALIZE

And if you think about this “state sovereignty” concept for more than a second, you’ll realize how ridiculous it is, because federal law creates all sorts of inequalities between the states. Do we have to abolish the EPA because it puts more of a burden on industrial states? Does federal disaster aid need to be spent equally in all the states? Where does this states’ rights nonsense end?

Depends, do the EPA regulations literally only apply in a few listed states? Is California free to use some chemical that’s forbidden to Montana?

Do only disasters in listed states get relief? Does a hurricane in Jersey get funds, but an equally-devastating disaster in one of nine specified states get nothing?

If so, we might have to. That’s where it ends.

[MOIDALIZE]

@Human_Action

Ok, so no further thoughts on Katzenbach? Fair enough.

No, because you pulled quotes from the decision, describing why Congress met a rational basis standard, and tried to turn them into a list of exacting standards that Congress must meet. As I said, you’re misreading the case. Again, you’re making a political argument. You’re saying that because you believe the VRA is somewhat less necessary today, then it’s an unconstitutional burden and Congress should have to re-legislate the issue from scratch. Even if I were to agree with your assessment of the current need for the VRA, that would still be a ridiculous standard. Whether they’re good laws or bad, Congress is supposed to have the power to decide how we tackle the nation’s problems, and if they’re not violating a right spelled out in the Constitution, then SCOTUS has no business substituting their judgment for that of Congress.

[Human_Action]

@MOIDALIZE

No, because you pulled quotes from the decision, describing why Congress met a rational basis standard, and tried to turn them into a list of exacting standards that Congress must meet. As I said, you’re misreading the case. Again, you’re making a political argument. You’re saying that because you believe the VRA is somewhat less necessary today, then it’s an unconstitutional burden and Congress should have to re-legislate the issue from scratch. Even if I were to agree with your assessment of the current need for the VRA, that would still be a ridiculous standard. Whether they’re good laws or bad, Congress is supposed to have the power to decide how we tackle the nation’s problems, and if they’re not violating a right spelled out in the Constitution, then SCOTUS has no business substituting their judgment for that of Congress.

That may well be. I’m just a layperson, I don’t claim any expertise in the Constitution, law, or judicial review. I read the decision, and it seemed plausible to me. Then, I read Ginsburg’s dissent, and it didn’t, because she skirted the issue of the formula and instead argued for pre-clearance as a concept.

If a legal standard must be met to justify inequality of the states, whether that standard is new or not, I consider that a good thing, and consistent with the Constitution, and the equality clauses under which states were admitted. Laws that directly target only parts of the nation are dangerous to the union and the concept of equal protection, and shouldn’t be passed lightly.

But, I’m frankly not up to the task of crafting a legal argument in defense of this decision other than pointing to Roberts’ opinion and declaring “That sounds right”, and to Ginsburg’s dissent and Thomas’ concurrence and declaring “That doesn’t sound right”. That’s not evidence that the opinion is wrong, of course, but simply an acknowledgement of the limits of my ability to make that determination. I read a couple articles supporting the decision, and a couple decrying it, and that’s really all I can do.