Well, there is more of a history here than just this case. If you read the decision, Roberts explains pretty well that in Northwest Austin Municipal Util. Dist.No. One v. Holder, 557 U. S. 193 the court had noted that the violate the principle of equal sovereignty among the States there must be some compelling interest. Now, we can question if there is really a principle of “equal sovereignty” between the States or whether it was created out of the thin air–but I would argue it is pretty clear the Constitution provides for the creation of politically equal States in terms of their rights and privileges. Those equal rights and privileges have never been denied on a whim, we’re talking basically cases like the 1960s Civil Rights legislation and Reconstruction when we had military governors and such running parts of the country that had been engaged in previous armed insurrection.
I think there is a strong argument that from the day the Constitution was signed, it was assumed and a core part of the Constitution that all States are equally sovereign. Preclearance clearly violates that concept, so if anything it was judicial activism for the courts in the 60s and in Austin to accept any infringement on that equal sovereignty. But they did so for a good reason (the same good reason the SCOTUS let a lot of constitutionally questionable activity slide during and after the Civil War–it was for the greater good and necessity was a powerful argument.) It seems to me that Roberts point, that if we’re going to let you do something that really violates the spirit of the Constitution in the first place because we are weighing it against the right to vote and finding the right to vote to be more important, the criteria we use to decide that needs to be based on immediate and relevant information. In reauthorizing the Voting Rights Act it’s continually referencing jurisdictions that had poll tests and such in the 1960s, so it’s hard to argue they were properly utilizing immediate information. Since there is scant evidence that the jurisdictions under preclearance have poor minority voter participation or access to the vote (and in fact the opposite is true), I’m not sure it’s easy to construct an argument without going back to the 60s/70s.
Finally, the “work you way out of it” is kind of ignorant of the reality. There was substantial executive branch flexibility in deciding if a jurisdiction had legitimately satisfied all the requirements of preclearance and to a degree it appeared that many districts no executive was ever going to approve their getting out of it, despite high voter registration numbers.
That’s highly unlikely. Many of the cities, counties, and states have substantial black populations and black elected officials. Several cities in Alabama and Mississippi that were the heart of the Civil Rights clashes and the heart of Jim Crow have black mayors now.
Laws don’t get passed by Emperors. What you’re talking about, from what I can see, is a lot more popular in Pennsylvania and Ohio than it is in Alabama and Mississippi.
The court in Katzenbach (which I’ve not read, but have read quotes from in Roberts opinion in this case) also basically said much the same thing that Roberts did. That this unequal treatment of the States was an exceptional thing but justified by a hundred year history of racial disenfranchisement corrupting the free election process in a geographic swathe of the country. So I don’t know that any SCOTUS has ever looked at inequal treatment of the States as if it’s a totally normal and cool thing, but rather as something you need to be able to justify, and the current SCOTUS is saying the way in which Congress is now justifying it is outside the bounds of what they believe to be proper.
That may seem like legislative interference, but it’s kind of like if a local zoning board gives you a variance that is sort of “between the lines” of the rules for a good reason, but then stopping you from doing something crazy with your construction. They gave you a variance because the ordinary process wasn’t working and was stopping a good effort, but it wasn’t permission to go willy-nilly, and in they always retained ability to pull the rug out from under it which is sort of where I see the court with something that it has allowed over the years while almost acknowledging it’s outside constitutional norms.
So, what’s to stop a racist district from just passing a law the first Monday in November that says “No person with skin darker than a paper bag may vote in this district”? Yes, of course it’d get struck down, but would it get struck down within a single day?
What’s to stop a racist district from passing a law saying, “No person with skin darker than a paper bag may live in this district lest they be shot to death on the spot by the local constabulary?”
Considering that they were constantly coming up with laws designed to suppress minorities and being slapped down by the rules that just got eliminated? That’s exactly what I expect, and for many others to join the chorus now that the Supreme Court has declared open season.
Why does high minority voter turnout imply that there aren’t voter suppression attempts? I don’t ask this question just of you, but I don’t really see how the two are more than tangentially related. Voter turnout (and I believe there are minority elected officials in total, not per capita) is based on a bunch of things unrelated to suppression efforts. Shouldn’t the standard be how often these districts attempt to introduce laws and changes that will have a disparate impact on minority voters and elected representatives?
That the local elected officials and their constituents wouldn’t support such a law. Whether the regions effected have truly changed their ways with regards to passing laws intended to disenfranchise minorities remains to be seen.
I actually think pre-clearance is probably unnecessary and needlessly complicated in this day and age. But I’d much prefer that be a decision made by the legislature, particular in an area that the Constitution pretty clearly reserves for the federal government (making laws guaranteeing the right to vote). I’m just not sure how the notion of state sovereignty overrides the clear language of the 15th amendment.
To cover the objection already mentioned, I feel the same way about the CA gay marriage proposition. I’d prefer if it were let stand and then voted out ASAP (which it clearly would be). DOMA is a bit trickier because there are some pretty clear constitutional principles in play regarding respecting marriages from other states.
The whole justification for denying equal state sovereignty was that for one hundred years a swathe of the country had not had free elections because of black disenfranchisement. If that’s not going on, I think right away the justification for the exceptional infringement on constitutional norms between the States goes away. If Ohio gets to pass a Voter ID law without preclearance, which many people complain about, why should Texas or Mississippi which have very high rates of minority voter registration and minority voting, be denied an end to preclearance?
Voter ID as stood in Ohio for awhile now, despite complaints. That means that the DoJ must not think it is intrinsically racial voting suppression, if it did, why isn’t it filing suit like it did in Arizona to slap down the law?
The thing is, States will continually change voting laws and registrations, and when you just say “until the executive branch rules that for a small section of States that the new voting laws aren’t racist, you have to lose equal sovereignty” that seems problematic to me. Because you’re giving way too much discretion to the executive branch. When the legislative branch words its reauthorizations primarily couched in poll taxes and literacy tests from the 60s then they are also not showing that they are being good shepherds of the situation.
Many of those hundreds of laws that were denied under preclearance were materially identical to laws in States without preclearance. So I think we either have to conclude that 41 States (sans random Counties in outside the 9 that are under preclearance such as in New York, California, etc) have suppressed voter turnout for years among minorities or that maybe all those laws being blocked by DoJ under preclearance aren’t really minority vote suppressing at all and never should have been blocked.
Texas Voter ID for example is very similar to the Ohio legislation from what I can see, and while we can probably all agree the motivations for those laws are shitty the actual impact of them appears to not really be to suppress minority votes. And if it’s okay in Ohio, why should the DoJ (against basically the constitutional principle of equal sovereignty) be able to say it isn’t okay in Texas? You could say “because only 7% of blacks get to vote in Texas” or something if it was 1960, but you can’t say that in 2013.
Or put more precisely, assuming the law was supposed to take effect immediately, as soon as it were passed, someone would go into court and, probably that same day, a judge would issue a temporary restraining order barring the law from going into effect until a hearing could be held on the matter. A few days or weeks later, after all parties had an opportunity to prepare legal briefs on the issues, the judge would hold a hearing on a preliminary injunction, which would bar the law from going into effect while the validity of the law was being litigated. Assuming the law was as blatantly unconstitutional as your hypothetical, the court would quickly find that it was improper and strike it down before it ever was able to go into effect.
It’s not the principle of state sovereignty, it’s the principle of equal sovereignty. The fifteenth or any of the other voting amendments never say that Congress has the authority to require voting laws of a certain type in California but not in Ohio or vice versa. Roberts never says that Congress can’t regulate voting because of State sovereignty, that’s why only a small part of the VRA was struck down. What he said was if you take away powers from a small subset of states, you need to have a specific reason for exercising that power inequally, as such action inherently violates the concept of equality amongst the States. No part of the constitution, and no part of the Fifteenth Amendment makes one State superior or inferior to any other in terms of its rights under the Constitution.
The court in Katzenbach, which I’d argue was in some ways a lot more liberal than our current court, also acknowledged inequal treatment of the States was a bit extreme, but came up with a good reason as to why it’s justified (protecting voting rights.) But if you can’t make the argument about the specific preclearance States that the specific denial of equal powers protects immediate voting rights concerns, that justification evaporates. When statistics show high voter participation among minorities in the preclearance States, while laws blocked by preclearance are allowed in other States, it becomes difficult to buy into the justification.
That wasn’t the question. The question is why voter turnout is a good proxy for a lack of suppression efforts. The court wasn’t saying it is unfair to have preclearance in some states and not others, they said there was no longer a NEED to do it based on the metrics we discussed earlier. I am asking you why you think that evidence is compelling?
Whether the law is intrinsically bad is beside the point. They just need to see what the impact and intentions are.
Because lack of suppression efforts can’t be defined impartially, but you can actually statistically measure what percentage of voters of a certain race are registered to vote and what percentage report having voted in the last Presidential election.
Prior to the VRA, the registration number for minorities in the South with heavy Jim Crow was under 10% across the board, and those who had voted in the last election even lower. Now the numbers are slightly higher than the white population in those nine States overall. That’s reality. The rest of it is you asking me to trust an unelected Federal bureaucracy when it decides whether a given law that it’s going to slap down under preclearance is a suppression effort or not.
I’m a much bigger fan of things that can be impartially shown than things where we have to trust the opinion of a vaguely known bureaucrat mostly unaccountable to any review.
The impact of the Ohio law appears to have been people had to wait in two separate lines, one to show ID, another to vote. Are you aware of any minority turnout problems in Ohio? Seemed pretty good to me based on the exit polling.
That’s the problem right there, it’s a DoJ bureaucrat who gets to decide what the impact and intentions (how can he know someone’s intentions??) when he denies preclearance. When its denied, de facto the district is “racist” again and thus can’t be freed for at least another ten years. It’s a heavy handed tool, a necessary one at one point in time. But it inspires little confidence in me versus statistical knowledge. It’s the difference between knowing we have a serious problem and a bureaucrat claiming we do. I think Roberts makes a good argument that the latter isn’t reason enough to infringe on the constitutional norms of equal privileges and rights to each State.
That’s hardly a good reason. Because you don’t think a more direct measure can be done impartially, you use something that is by most accounts a very poor substitute. Besides, you can fairly easily measure lack of voter suppression via statistical means just as you can most other things.
And reality is also the fact that their are still tons of voter suppression efforts going on in those states. Better doesn’t mean much, and it certainly doesn’t justify getting rid of the preclearance requirements you would likely attribute much of the gains to.
No, it’s not. All you need to do is compile a list of the changes attempted in such states, and run a statistical analysis on the likely impact of said changes.
Here are some in Ohio and other places. Besides, you are not naive. You know damn well the GOP have every expectation that these laws will suppress Democratic/minority votes. That said, the relative success of these efforts is only one issue at play. The VRA prohibits voting qualification for the “purpose of or will have the effect of diminishing the ability of any citizens of the United States on account of race or color”. Your standard MIGHT address the effect criteria, but it doesn’t speak to the purpose or intent. That is just as important, and most reasonable people realize the GOP in particular is enacting many of these laws with that purpose in mind.
Which isn’t really materially that different from what you need to vote in Ohio. To register you need either a driver’s license or a social security card, and then you need either a photo ID or something like a current utility bill or something of that nature to link you to a specific name.
Other States currently requiring photo ID: Arkansas, Georgia, Hawaii, Indiana, Kansas, Rhode Island, South Carolina, Tennessee.
Georgia and South Carolina were the only ones subject to preclearance, in South Carolina the DoJ’s refusal to approve it was struck down in district court and voters in the most recent primary had to present photo ID. It certainly looks like a substantial number of no-preclearance states are adopting photo ID.
So actual ability to vote is a poor substitute for…what are you proposing we use instead?
The SCOTUS laid out a very compelling argument that whatever goes on in those States it’s not unique to them versus the other 41. So no reason to violate the concept of equal State sovereignty. Adopt a formula that would apply to all fifty states equal or move on.
No such analysis could be impartial or superior to actual voting numbers.
This just strengthens my argument that preclearance shouldn’t apply in a special way only to nine states (and the few scattered jurisdictions.)