It seems to me that the Supreme Court decision overturning section 4 of the Voting Rights Act is practically pure-form judicial activism.
SCOTUS didn’t rule that section 4 was unconstitutional in principle. Rather, from what I gather, they ruled that Congress must use more recent criteria for judging whether a voting area has to submit to pre-clearance. However, in 2006, when the Act was up for renewal, Congress held something like 50 hearings and then decided to vote to renew the Act for 25 more years by a margin of 390-33 in the House and 98-0 in the Senate.
Clearly, Congress thought its method of determining the criteria for subject an area to pre-clearance was sufficient. The executive branch at the time didn’t object. And, the Supreme Court agrees that it’s OK to subject some areas an not others to pre-clearance. However, apparently, Congress must get permission from SCOTUS to come up with the criteria.
So, 7 years ago, Congress looked at the Act and said it was OK by overwhelming margins. The Bush administration promptly signed it. Now, in 2013, SCOTUS says, well, it’s not unconstitutional, but your method of picking which states and municipalities need pre-clearance is too out of date, so we’re striking that. It’s SCOTUS telling Congress how to do their jobs – “use more current criteria”.
Can someone explain how this is not judicial activism?
(I’m away from a computer until tomorrow sometime, so please don’t consider my not returning to the thread as a post-and-run)
The first step for the debate is to define “judicial activism.” Only once there is a consensus on that term can there be a debate whether this decision fits it.
I’m not a Scalia type but I do believe the constitution, while a living document open to “changing interpretations” shouldn’t be rewritten by judicial fiat on a regular basis. I’m always hesitant to claim anything is judicial activism because once you start that battle cry you’re basically on the side of the people who decried Brown v. Board and other major cases simply because they were mad their side lost.
I’d ask the OP if he believes it’ll be judicial activism if the court strikes down DOMA or rules in a more comprehensive way in favor of gay marriage? Because I think anyone playing Devil’s Advocate could make as strong an argument for a DOMA strike down being judicial activism as you can the Voting Rights Act.
From a practical standpoint I think the preclearance requirements were out of date. As evidence of this note many of the areas subject to preclearance have among the highest minority voter participation rates and the highest number per capita of minority elected officials. While places like Ohio and Pennsylvania have serious voting rights concerns but are not subject to preclearance because they’re north of the dotted-dixon line.
It’s rather a bigger deal for the SCOTUS to overturn an Act of Congress than not to; and the difference between the ACA and the VRA is a lot bigger than whose ox is being gored.
As I said elsewhere, when does the VRA end? When do 9 of 50 states get back the right to determine their internal affairs instead of being dictated to by Congress? Why not expand the law to all 50 states if it’s so clearly needed, or is everything perfect in the other 41? As long as one person can claim (note claim) discrimination, then the states are held hostage by Washington?
Well for one thing, there needs to be an end to the widespread & systematic attempts to deny minorities and the poor the vote. We are nowhere near that yet; and this ruling has just unleashed the bigots.
The Voting Rights Act contains (contained) provisions where localities singled out for pre-clearance could get out of this requirement, by essentially not being racist for 10 years. Several localities, including parts of Southern states like NC and VA, used this provision in the past and no longer need to be pre-cleared.
Why couldn’t the remaining localities do this too?
Have they been paralyzed by Republicans since 1965? Seems the majority of the states who aren’t covered are “Blue” states, but I don’t recall their representatives falling all over each other to expand the Act to cover their states…
In a sense, I’d say it would be less judicial activism if the court struck down the law in total, arguing that it’s no longer needed, or that it’s unconstitutional to treat some states different than others. However, that’s not what they found. They found that it is OK to treat the states differently, but that Congress was doing it wrong. Am I making the distinction clear? They didn’t say it’s unconstitutional, they said Congress wasn’t up-to-date enough in their methods. Their meddling into the workings of Congress seems like clear judicial activism.
As iiandyiiii notes, any state or locality can get out of pre-clearance by showing that they haven’t had race-related voting problems for 10 years. That’s another thing frustrating with this decision – the act is automatically self-adjusting, since states and municipalities can work their way out of it. So, it’s even less relevant that Congress chose not to update the affected places.
I agree that it’s hard to define. I don’t really want this to get sidetracked into a semantics conversation with examples and exceptions. Can some of the more conservative legal eagles here comment on their opinion?
The more I read about this, the more clear it seems to me. Apparently, the 15th Amendment explicitly gives Congress the power over the states to regulate voting in order to prevent racial discrimination.
So, how could this even be remedied? It seems clear that the constitution gives congress this power – pass another amendment that reads:
It’s easy to overstate how easy or affordable it was, in practice, to do this. Until Northwest Austin Municipal Utility District No. 1 v. Holder, certain districts were simply unable, legally, to “bail out”. The ruling that case, from 2009, stated:
Clearly, reform of some kind was needed. If this was the form it took, so be it. Congress can act if they wish to restore something like pre-clearance, and not base it on 1964 election data.
Except the Republicans will never allow that. So instead we’re going to see bigoted law after bigoted law passed, significant numbers of the populace disenfranchised, and probably quite a bit of violence.
The Justice Department still has full authority to go after any laws that it finds infringe voting rights, and most likely the ongoing litigation would fairly early on get some sort of injunction that would keep the law from being in force. The preclearance provision wasn’t the only teeth the Justice Department had, it just kept them from having to play whack-a-mole. But considering most of the places with preclearance requirements have extremely high minority voter participation it’s unlikely the whack-a-mole process will be anything like it was in the 1960s if it’s present at all.
It doesn’t matter, they’ll be buried under hundreds, perhaps thousands of bigoted laws. However many are necessary to overwhelm them, that’s how many will be pumped out by all the racist cities, counties and states out there. With all the support the Republican party can offer them.
