The Voting Rights Act and judicial activism

[Werekoala]

@Bridget_Burke

White racists who are nervous about the changing demographics in their states. We’ll just need to work harder to get out the vote here in Texas.

If our state turns Blue, the Republicans will never again get enough electoral votes to put one of their guys in the White House. They realized this after the last vote on the act…

Single party rule - that always works well!

[Martin_Hyde]

@RitterSport

See, I disagree. The court didn’t say that the law violated the constitution. It instead made up a rule that the criteria have to be more up-to-date or something. It wasn’t as if the legislature hasn’t revisited the law since the sixties or seventies. They renewed it in 2006, by a huge margin. The court has now stepped in and told congress how it has to review its own rules.

What part of the constitution did section 4 violate? By Roberts’ own admission, no part – section 4 is OK, but it has to be updated.

Um no, he said specifically “Section 4 is unconstitutional” right after “Held.”

Also, something you may be unaware of is the SCOTUS actually can review legislation on non-constitutional grounds. For example it can interpret what Congress intended a law to say for example if litigation arose where the meaning of the law was contested. That’s actually their original purpose, before judicial review of constitutionality Article III saw the need for a mediator branch to settle the meanings of the laws Congress passed.

[RitterSport]

@Martin_Hyde

What I actually said was I do not see how one can call it judicial activism unless you also consider the original ruling that allowed for inequal State sovereignty in the first place judicial activism. I’m not sure I view either as judicial activism, but rather as valid judicial exercise of their valid Article III powers.

When different competing constitutional principles compete, the Supreme Court has to make tough decisions one way or the other. That’s what happened in Roe, that doesn’t intrinsically make something judicial activism.

Judicial activism to me is more like specifying a specific type of busing plan a school district has to follow.

But are you saying Katzenbach was judicial activism?

Roe is like the poster child of judicial activism. If you’re saying you don’t find that to be an activist decision, I think you’re using the term differently than most conservatives.

I don’t really know anything about Katzenbach.

Regarding the constitutionality of section 4, sorry, I worded that wrong. They didn’t find that it was unconstitutional in principle, just that the method used to determine which states were subject to pre-clearance (as codified in section 4) was unconstitutional.

To get slightly off topic, I was really hoping for some lawyers to chime in here, either pro or con. I’m a casual laymen and I will definitely not be able to defend my position if we start getting into constitutional history.

[brickbacon]

@Martin_Hyde

I’m not going to engage in third grade style repeater games with you. I’ll leave it standing (and won’t argue it again): actual voter participation is real data. “Projections” about the impact of a law are predictions. It’s the difference between knowing what GEs stock price was on 2/5/2013 and predicting what it’ll be on 2/5/2014.

Projections are based on real data. Unless your argument we should let most stuff fly, then see the results after the fact, I don’t get your point at all. Again, if you want to bow out because you realize you have no leg to stand on, that’s fine. But don’t pretend greater voter turnout is direct evidence of a lack of voter suppression efforts. It’s not, and you know it isn’t, and that there are 100 better ways to measure such a thing.

As far as your GE analogy. Is the GE stock price a good indicator of their competitor’s financial strengths? Yes, the GE price could be hurt if they are up against stiff competition, but there is not really a strong, direct correlation at all.

@Martin_Hyde

Clearly not false.

Right, because you say so.

@Martin_Hyde

Actually the court looked at a lot of the data you assert is so import.

Care to cite that? Where is that data available?

@Martin_Hyde

You can disagree/whine about that all you want, but five SCOTUS justices trump you 7 days a week.

Which is not my assertion. Clearly you have lost the ability to debate given you resort to crap like this.

@Human_Action

Actually, no, just impact. As amended in 1982, Section 2 of the VRA (the part that prohibits voting discrimination) applies to anything that results in discrimination. Intent doesn’t matter at all for this law. Relevant statute:

Does that apply to jurisdictions covered by section 5, because I believe it does not. Correct me if I am wrong, but wiki seems to back up my understanding. Do have a cite to the contrary?

A covered jurisdiction that seeks to obtain Section 5 Preclearance, either from the United States Attorney General or the United States District Court for the District of Columbia, must demonstrate that a proposed voting change does not have the purpose and will not have the effect of discriminating based on race or color. In some cases, they must also show that the proposed change does not have the purpose or effect of discriminating against a “language minority group.” Membership in a language minority group includes “persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage.” The burden of proof under current Section 5 jurisprudence is on the covered jurisdiction to establish that the proposed change does not have a retrogressive purpose.[18]

Do you have something that contradicts this?

[Martin_Hyde]

For me Roberts arguments are so persuasive as to necessitate posting it in full. He lays out very clearly the extraordinary Congressional power was specifically accepted by the court in Katzenbach on a set of conditions no longer present. Further, he addresses all of the data Congress used in its 2006 reauthorization and found it unpersuasive. Just because a jurist puts his judgment about the legislature doesn’t make it judicial activism, it is the role of the Supreme Court to overrule the legislature’s judgments when legally or constitutionally necessary.

Held: Section 4 of the Voting Rights Act is unconstitutional; its formula can no longer be used as a basis for subjecting jurisdictions to preclearance. Pp. 9–25.

(a) In Northwest Austin, this Court noted that the Voting Rights Act “imposes current burdens and must be justified by current needs” and concluded that “a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” 557 U. S., at 203. These basic principles guide review of the question presented here. Pp. 9–17.

(1) State legislation may not contravene federal law. States retain broad autonomy, however, in structuring their governments and pursuing legislative objectives. Indeed, the Tenth Amendment reserves to the States all powers not specifically granted to the Federal Government, including “the power to regulate elections.” Gregory v. Ashcroft, 501 U. S. 452, 461–462. There is also a “fundamental principle of equal sovereignty” among the States, which is highly pertinent in assessing disparate treatment of States. Northwest Austin, supra, at 203.

The Voting Rights Act sharply departs from these basic principles. It requires States to beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own. And despite the tradition of equal sovereignty, the Act applies to only nine States (and additional counties). That is why, in 1966, this Court described the Act as “stringent” and “potent,” Katzenbach, 383 U. S., at 308, 315, 337. The Court nonetheless upheld the Act, concluding that such an “uncommon exercise of congressional power” could be justified by “exceptional conditions.” Id., at 334. Pp. 9–12.

(2) In 1966, these departures were justified by the “blight of racial discrimination in voting” that had “infected the electoral process in parts of our country for nearly a century,” Katzenbach, 383 U. S.at 308. At the time, the coverage formula—the means of linking the exercise of the unprecedented authority with the problem that warranted it—made sense. The Act was limited to areas where Congress found “evidence of actual voting discrimination,” and the covered jurisdictions shared two characteristics: “the use of tests and devices for voter registration, and a voting rate in the 1964 presidential election at least 12 points below the national average.” Id., at 330. The Court explained that “[t]ests and devices are relevant to voting discrimination because of their long history as a tool for perpetrating the evil; a low voting rate is pertinent for the obvious reason that widespread disenfranchisement must inevitably affect the number of actual voters.” Ibid.

The Court therefore concluded that “the coverage formula [was] rational in both practice and theory.” Ibid Pp. 12–13.

(3) Nearly 50 years later, things have changed dramatically. Largely because of the Voting Rights Act, “[v]oter turnout and registration rates” in covered jurisdictions “now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” Northwest Austin, supra,at 202. The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years

Yet the Act has not eased §5’s restrictions or narrowed the scope of §4’s coverage formula along the way. Instead those extraordinary and unprecedented features have been reauthorized as if nothing has changed, and they have grown even stronger. Because §5 applies only to those jurisdictions singled out by §4, the Court turns to consider that provision. Pp. 13–17.

(b) Section 4’s formula is unconstitutional in light of current conditions. Pp. 17–25.

(1) In 1966, the coverage formula was “rational in both practice and theory.” Katzenbach, supra, at 330. It looked to cause (discriminatory tests) and effect (low voter registration and turnout), and tailored the remedy (preclearance) to those jurisdictions exhibiting both. By 2009, however, the “coverage formula raise[d] serious constitutional questions.” Northwest Austin, supra, at 204. Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned for over 40 years. And voter registration and turnout numbers in covered States have risen dramatically. In 1965, the States could be divided into those with a recent history of voting tests and low voter registration and turnout and those without those characteristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were. Pp. 17-18.

(2) The Government attempts to defend the formula on grounds that it is “reverse engineered”—Congress identified the jurisdictions to be covered and then came up with criteria to describe them. Katzenbach did not sanction such an approach, reasoning instead that the coverage formula was rational because the “formula . . . was relevant to the problem.” 383 U. S., at 329, 330. The Government has a fallback argument—because the formula was relevant in 1965, its continued use is permissible so longas any discrimination remains in the States identified in 1965. But this does not look to “current political conditions,” Northwest Austin, supra, at 203, instead relying on a comparison between the States in 1965. But history did not end in 1965. In assessing the “current need” for a preclearance system treating States differently from one another today, history since 1965 cannot be ignored. The Fifteenth Amendment is not designed to punish for the past; its purpose is to ensure a better future. To serve that purpose, Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. Pp. 18–21.

(3) Respondents also rely heavily on data from the record compiled by Congress before reauthorizing the Act. Regardless of how one looks at that record, no one can fairly say that it shows anything approaching the “pervasive,” “flagrant,” “widespread,” and “rampant” discrimination that clearly distinguished the covered jurisdictions from the rest of the Nation in 1965. Katzenbach, supra , at 308, 315, 331. But a more fundamental problem remains: Congress did not usethat record to fashion a coverage formula grounded in current conditions. It instead re-enacted a formula based on 40-year-old facts having no logical relation to the present day. Pp. 21–22. 679 F. 3d 848, reversed.

[Martin_Hyde]

@RitterSport

Roe is like the poster child of judicial activism. If you’re saying you don’t find that to be an activist decision, I think you’re using the term differently than most conservatives.

I don’t really know anything about Katzenbach.

Regarding the constitutionality of section 4, sorry, I worded that wrong. They didn’t find that it was unconstitutional in principle, just that the method used to determine which states were subject to pre-clearance (as codified in section 4) was unconstitutional.

To get slightly off topic, I was really hoping for some lawyers to chime in here, either pro or con. I’m a casual laymen and I will definitely not be able to defend my position if we start getting into constitutional history.

Not all conservatives eat at the same lunch counter. How are we defining judicial activism here? For me it is cases where the court has clearly substituted the legislative power with its own judgment, not based on firmly established constitutional norms of judicial review but based on an activist desire to mold and shape society.

I don’t view Roe in that way, it interpreted the Constitution in a different way than it had previously been interpreted but that doesn’t intrinsically seem activist to me. If we’re going to talk about judicial activism it may be best to define it.

[Martin_Hyde]

@brickbacon

Projections are based on real data. Unless your argument we should let most stuff fly, then see the results after the fact, I don’t get your point at all. Again, if you want to bow out because you realize you have no leg to stand on, that’s fine. But don’t pretend greater voter turnout is direct evidence of a lack of voter suppression efforts. It’s not, and you know it isn’t, and that there are 100 better ways to measure such a thing.

As the ruling explains, the preclearance provisions were acceptable under specific conditions of that time. A history of improper voting tests and minority participation more than 12 percentage points below the norm. That’s literally the criteria used, and no longer applies at all.

Right, because you say so.

Just as your statement was only “because you say so.”

Care to cite that? Where is that data available?

If you read the judgment it’s obvious. Ginsburg mentions the data you brought up in her dissent, which means at least part of the court was aware of the data. Roberts brought up the data that Congress used in deciding to reauthorize, and said he found it unpersuasive. That’s a pretty strong indication they were aware of it.

Which is not my assertion. Clearly you have lost the ability to debate given you resort to crap like this.

The arguments I’m making are the arguments Roberts is making, and he’s actually explaining what criteria made preclearance constitutionally permissible. You segue into stuff like “predictions” based on impact of the law and that has nothing to do with why preclearance was constitutional in the first place.

[brickbacon]

@Martin_Hyde

As the ruling explains, the preclearance provisions were acceptable under specific conditions of that time. A history of improper voting tests and minority participation more than 12 percentage points below the norm. That’s literally the criteria used, and no longer applies at all.

Yes, I get that. What I am saying is that criteria has no bearing on what is happening in reality. I am not even saying the decision is wrong, I am saying the criteria being used is nonsensical as it applied to what they are trying to prevent. Now if you want to rebut that this case wasn’t decided on that basis, that is fine. But, don’t try to pretend like the data they seem to be looking at says things it doesn’t.

@Martin_Hyde

Just as your statement was only “because you say so.”

What bullshit. Do you not see a difference between, “I think there is a better way to do x”, and “X can NEVER be done impartially…”. Clearly the latter is impossible to know and unlikely given that such things are done routinely.

@Martin_Hyde

If you read the judgment it’s obvious. Ginsburg mentions the data you brought up in her dissent, which means at least part of the court was aware of the data.

Which is not what you said and implied.

@Martin_Hyde

Roberts brought up the data that Congress used in deciding to reauthorize, and said he found it unpersuasive. That’s a pretty strong indication they were aware of it.

So I’ll ask you what you asked me. Were you “privy to private SCOTUS deliberations and the results of their research[?]”

@Martin_Hyde

The arguments I’m making are the arguments Roberts is making, and he’s actually explaining what criteria made preclearance constitutionally permissible. You segue into stuff like “predictions” based on impact of the law and that has nothing to do with why preclearance was constitutional in the first place.

Your explanation has little to do with THIS discussion. I notice you often have this problem of trying to “educate” someone else (despite, AFAICT, having no unique knowledge or apparent experience or training) instead of responding to what is actually be argued on this board. People raise objections or ask questions, you respond with a tangentially related lecture. Most people here are smart enough to find, read, and understand what Roberts said. We don’t need you to render your superficial and often incorrect analysis of what was said/meant. There are plenty of better qualified talking heads that do a much better job than either of us at that.

The question I posed to you is why you think voter turnout is a good measure of suppression efforts. You responded that you don’t know of a better way to measure it, then went off on some diatribe about Roberts’ logic in deciding the case. Answer the question as to why you think a more direct measure is impossible or inferior.

[Human_Action]

@brickbacon

Does that apply to jurisdictions covered by section 5, because I believe it does not. Correct me if I am wrong, but wiki seems to back up my understanding. Do have a cite to the contrary?

Do you have something that contradicts this?

I must have misinterpreted you, then, because I was responding to this:

@Martin Hyde

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?

@brickbacon

Whether the law is intrinsically bad is beside the point. They just need to see what the impact and intentions are.

Martin Hyde was referring to laws in non-pre-clearance districts, I took your reply as doing the same. If not, my mistake.

[brickbacon]

@Human_Action

Martin Hyde was referring to laws in non-pre-clearance districts, I took your reply as doing the same. If not, my mistake.

I didn’t mean it that way, but the ambiguity was my fault. My apologies as the lack of clarity was probably on my end.

[Martin_Hyde]

@brickbacon

The question I posed to you is why you think voter turnout is a good measure of suppression efforts. You responded that you don’t know of a better way to measure it, then went off on some diatribe about Roberts’ logic in deciding the case. Answer the question as to why you think a more direct measure is impossible or inferior.

Your childish outbursts aside, voter turnout / registration was a core part of the case, I’m not interested in discussion about whether it’s a valid measure or not or better or worse than other measures. It was core part of the law and core part of the court’s reasoning in Katzenbach and in Shelby. And this thread is about the actual legal ruling, I’m not sure what you think it is but I’m quite sure you don’t get to claim the discussion is X just because you want it to be X.

[MilTan]

@Martin_Hyde

I can’t see how it is, given Roberts argument. He established pretty clearly for me that States are supposed to be equally sovereign, and then supports his point by referencing the original case upholding the VRA and notes that the court at that time even considered the VRA’s inequal treatment of the States to be an extraordinary act.

Roberts is basically interpreting Katzenbach to say the exact opposite of what it does. In the original ruling, the VRA isn’t the exception, equal state sovereignty is.

Second: the Act intentionally confines these remedies to a small number of States and political subdivisions which, in most instances, were familiar to Congress by name. This, too, was a permissible method of dealing with the problem. Congress had learned that substantial voting discrimination presently occurs in certain sections of the country, and it knew no way of accurately forecasting whether the evil might spread elsewhere in the future. In acceptable legislative fashion, Congress chose to limit its attention to the geographic areas where immediate action seemed necessary. The doctrine of the equality of States, invoked by South Carolina, does not bar this approach, for that doctrine applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.

Again: “that doctrine applied only to the terms upon which States are admitted to the Union…” A broad notion of equal state sovereignty is entirely novel to Roberts (it first appeared in his previous VRA ruling).

[brickbacon]

@Martin_Hyde

Your childish outbursts aside, voter turnout / registration was a core part of the case, I’m not interested in discussion about whether it’s a valid measure or not or better or worse than other measures.

Then you can state that initially instead of just flailing about without answering the question. But you made your unwillingness and inability to answer the question pretty clear before anyway, so consider the matter dropped.

@Martin_Hyde

It was core part of the law and core part of the court’s reasoning in Katzenbach and in Shelby. And this thread is about the actual legal ruling, I’m not sure what you think it is but I’m quite sure you don’t get to claim the discussion is X just because you want it to be X.

Right, I ask you a question, you make a weak, pathetic, and ineffective attempt to answer, then you claim that’s not what’s being discussed. Makes perfect sense :dubious:. If you the discussion isn’t X, then why did you bother writing several posts attempting to address X?

[Jas09]

@MilTan

Again: “that doctrine applied only to the terms upon which States are admitted to the Union…” A broad notion of equal state sovereignty is entirely novel to Roberts (it first appeared in his previous VRA ruling).

Thank you. This is what I’ve been trying to suss out - what is the Constitutional basis for equal sovereignty at any point other than when a state is admitted? Roberts seems to have invented it a few years ago just so he could use it now.

[BrainGlutton]

@Werekoala

And yet everything was sunshine and lollipops when SCOTUS upheld the ACA.

Ox, gored, etc.

Funny you should put it that way . . .

**The Supreme Court’s Constitutional Hypocrisy

Ari Berman on June 26, 2013 - 12:34 PM ET**

In his dissent in the Defense of Marriage Act case today, Justice Scalia wrote: “We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.”

Justice Roberts wrote in his concurrence: “I agree with Justice Scalia that this Court lacks jurisdiction to review the decisions of the courts below… I also agree with Justice Scalia that Congress acted constitutionally in passing the Defense of Marriage Act.”

Yet that reasoning didn’t stop Justices Roberts and Scalia from striking down the centerpiece of the Voting Rights Act yesterday, a hugely important civil rights law that has been passed by Congress five times with overwhelming bipartisan approval. Why didn’t the court defer to Congress on the VRA, which has a far more robust Congressional history/mandate than DOMA? And how did Roberts and Scalia reach such contradictory conclusions in the different cases?

[Northern_Piper]

@Martin_Hyde

When different competing constitutional principles compete, the Supreme Court has to make tough decisions one way or the other. That’s what happened in Roe, that doesn’t intrinsically make something judicial activism.

Judicial activism to me is more like specifying a specific type of busing plan a school district has to follow.

@RitterSport

Roe is like the poster child of judicial activism. If you’re saying you don’t find that to be an activist decision, I think you’re using the term differently than most conservatives.

@Martin_Hyde

Not all conservatives eat at the same lunch counter. How are we defining judicial activism here? For me it is cases where the court has clearly substituted the legislative power with its own judgment, not based on firmly established constitutional norms of judicial review but based on an activist desire to mold and shape society.

I don’t view Roe in that way, it interpreted the Constitution in a different way than it had previously been interpreted but that doesn’t intrinsically seem activist to me. If we’re going to talk about judicial activism it may be best to define it.

This was my point way back in post # 3 - before you can debate whether some decision was judicial activism, you have to define “judicial activism.” Martin Hyde has given some indication what he considers judicial activism, but RitterSport has not, other than saying that Roe was judicial activism.

[foolsguinea]

@Werekoala

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?

Well, never. The states cannot be allowed to abolish democracy internally in the name of a conception of “self-governance” so abstract as to be a joke.

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?

Yeah, it should be nationwide. The base of white supremacy is not “the South.” It’s white anglos.

[Human_Action]

@foolsguinea

Well, never. The states cannot be allowed to abolish democracy internally in the name of a conception of “self-governance” so abstract as to be a joke.

:dubious: So not pre-clearing election changes is the same thing as abolishing democracy internally?

@foolsguinea

Yeah, it should be nationwide. The base of white supremacy is not “the South.” It’s white anglos.

That’s the only way your approach would be legal; if you aren’t going to base pre-clearance on current conditions, it’d have to be universal.

[RitterSport]

@Northern_Piper

Martin Hyde has given some indication what he considers judicial activism, but RitterSport has not, other than saying that Roe was judicial activism.

It’s when the court does something I don’t like.

OK, I hope this doesn’t result in a huge hijack with examples and counter-examples, but how about, results oriented decisions are examples of judicial activism, rather than principles-oriented decisions?

In Roe and and Griswold, the court conjured up a right to privacy in the constitution, which wasn’t there. The court seemed to be searching for constitutional backing for getting rid of the (ridiculous) restrictions on birth control in CT, so they made one up.

In the Connecticut eminent domain case, on the other hand, there seems to be clear constitutional jurisdiction for the government to take over land with proper compensation, and the Connecticut legislature allowed it, so allowing that takeover was not a case of judicial activism, in my view. The result (giving property over to a private company) seemed wrong to me, but clearly constitutional.

Anyway, I will quickly get out of my depth with historical SCOTUS cases, so I will probably not be able to properly defend this definition. In practice, the definition seems to be the first one I jokingly put on top of this post, or, basically, I know it when I see it.

[RitterSport]

@Human_Action

…That’s the only way your approach would be legal; if you aren’t going to base pre-clearance on current conditions, it’d have to be universal.

Of course, four Supreme Court justices disagree with you.

(Question – should I be capitalizing Supreme Court? How about Congress, Senate, and House?)