Section 4 of VRA struck down

[NWO Sentryman]

http://www.bbc.co.uk/news/world-us-canada-23051808

This pretty much wrecks Pre-clearance, since it is incumbent on Congress to update pre-clearance mechanisms, and well....

 

[Brown]

Read the decision here.

 

[Myron Proudfoot]

so now the the righties argument for getting black votes will be "why won't those Negroes vote for Republicans? We passed the Voting Rights Act! Which is unconstitutional!" Brilliant. Why don't they just come out and say "we don't want black people voting!"

Oh wait, they have...

“I’m going to be real honest with you,” Emanuelson said. “The Republican Party doesn’t want black people to vote if they are going to vote 9-to-1 for Democrats.”

http://tv.msnbc.com/2013/06/05/texas-tea-party-leader-gop-doesnt-want-black-people-to-vote/

It’s simply that the Republican Party gave up a long time ago ever believing that anything they did would get minorities to vote for them.”

http://www.palmbeachpost.com/news/n...s/early-voting-curbs-called-power-play/nTFDy/

 

[Brown]

I won't go into detail about this now, but it does strike me as a bit strange that section 4 is unconstitutional, in part because it is contrary to "the fundamental principle of equal sovereignty," which is found in the Constitution ... where?

 

[Lowpro]

So I feel like it's worth dropping a line in for Alabama (Selma, AL filed suit). I personally want to see what will come of voting now in Alabama and other states. I think that its effects will be mostly permanent with or without the section. The capacity that states have developed have worked for many States that have NOT had to pass the test and I think other states should have the opportunity to prove that they don't need the test anymore.

But that's me. Alabama and other southern states catch a lot of flak as racist states and it's well earned. But sometimes you need to take the training wheels off. Everyone right now is watching to see what will happen.

BTW Brown, the 10th amendment is State Sovereignty.

 

[Brown]

BTW Brown, the 10th amendment is State Sovereignty.

And the Supreme Court found a violation of the 10th Amendment ... where?

Like I said, I don't really want to go into detail about this now, but I just found it interesting that the five-member majority speak of finding things unconstitutional by looking at the text of the Constitution itself ... but the majority nowhere explained the constitutional basis for "equal sovereignty" (which, by the way, is not in the 10th Amendment). Instead, the majority referred to the doctrine as "the tradition of equal sovereignty." (Opinion, page 11.)

Disparate treatment of persons is governed by the Equal Protection Clause of the 14th Amendment and there is a ton of jurisprudence about it. But what jurisprudence governs "the tradition of equal sovereignty?" Did the folks who talk about reliance upon the text pull something out of the air?

 

[Lowpro]

And the Supreme Court found a violation of the 10th Amendment ... where?

Like I said, I don't really want to go into detail about this now, but I just found it interesting that the five-member majority speak of finding things unconstitutional by looking at the text of the Constitution itself ... but the majority nowhere explained the constitutional basis for "equal sovereignty" (which, by the way, is not in the 10th Amendment). Instead, the majority referred to the doctrine as "the tradition of equal sovereignty." (Opinion, page 11.)

Disparate treatment of persons is governed by the Equal Protection Clause of the 14th Amendment and there is a ton of jurisprudence about it. But what jurisprudence governs "the tradition of equal sovereignty?" Did the folks who talk about reliance upon the text pull something out of the air?

Not quite. The 10th amendment defers sovereignty to the States provided that it does not infringe on the federal sovereignty (part Constitution, BoR and federal duties etc). The 14th amendment with regards to the VRA allowed for Congress to provide their pre-clearance as a prophylactic but this causes undue burden now. Or so the case was made anyways and to an extent I agree, the burden is no longer distributed equally and infringes the 10th Amendment of the States to determine their own voting mechanics. Section 4 and 5 are outmoded (again as the case is made) AND coupled with its discrimination against the State's sovereignty the Court sided with the States. Remember the VRA wasn't repealed and its function still is in effect but it no longer discriminates or acts as the prophylactic its last challenge was set against. Since Boerne Congress (read: federal powers) must exercise the 14th and particularly section 5 proportionately. Thus equal sovereignty is implicit.

Courts can STILL act on injunctions against voter discrimination; this power has not been revoked. Instead the pre-clearance has been eliminated because that power was unfairly given to Congress (unfair now as the argument is made and the SCOTUS narrowly agreed) and disenfranchises the State. it's a 5-4 decision so "cut and dry" is not what I mean to promote, but I honestly think the decision will not shake foundations now. If as I predict against my State performs voter suppression that Section 4 and 5 used to protect then Congress WILL have authority to enact a "new" Section 4 and 5 because it will fall into proportionality again.

 

[A'isha]

So I feel like it's worth dropping a line in for Alabama (Selma, AL filed suit).

Shelby County (where I live), actually. Selma is in Dallas County.

I personally want to see what will come of voting now in Alabama and other states. I think that its effects will be mostly permanent with or without the section. The capacity that states have developed have worked for many States that have NOT had to pass the test and I think other states should have the opportunity to prove that they don't need the test anymore.

But that's me. Alabama and other southern states catch a lot of flak as racist states and it's well earned. But sometimes you need to take the training wheels off. Everyone right now is watching to see what will happen.

Given the massive voter suppression efforts lately, I'm less than optimistic about what will happen and what this will lead to.

 

[Lowpro]

Shelby County (where I live), actually. Selma is in Dallas County.



Given the massive voter suppression efforts lately, I'm less than optimistic about what will happen and what this will lead to.

My interest is piqued by either positive or negative outcomes. All attempts at voter suppression as far as last election have been met negatively and with vigilance without the VRA being invoked I think... That's why I am interested. Btw I thought AL.com said Selma... Hmm methinks there is a typo.

Edit: nope it was Shelby.

 

[Brown]

Not quite. The 10th amendment defers sovereignty to the States provided that it does not infringe on the federal sovereignty (part Constitution, BoR and federal duties etc). The 14th amendment with regards to the VRA allowed for Congress to provide their pre-clearance as a prophylactic but this causes undue burden now. Or so the case was made anyways and to an extent I agree, the burden is no longer distributed equally and infringes the 10th Amendment of the States to determine their own voting mechanics. Section 4 and 5 are outmoded (again as the case is made) AND coupled with its discrimination against the State's sovereignty the Court sided with the States. Remember the VRA wasn't repealed and its function still is in effect but it no longer discriminates or acts as the prophylactic its last challenge was set against. Since Boerne Congress (read: federal powers) must exercise the 14th and particularly section 5 proportionately. Thus equal sovereignty is implicit.

It may sound like I'm trying to jerk your chain, but I'm not. I am, however, going to jerk the Supreme Court's chain a little.

The Supreme Court said the following about the Tenth Amendment: "More specifically, '"the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections."'" That's it. They did not find any violation of the Tenth Amendment, that I can see, nor did they specifically state in Shelby County that "equal sovereignty" was based upon that Amendment.

On the contrary, "equal sovereignty" was based upon case law. As Justice Ginsburg pointed out, "In Katzenbach, however, the Court held, in no uncertain terms, that the [equal sovereignty] principle '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.'"

The majority, taking a passage from the Northwest Austin case (a passage that Justice Ginsburg calls "dictum"), says that equal sovereignty "remains highly pertinent in assessing subsequent disparate treatment of States." But is there a body of law that supports this conclusion? Are there a set of standards for applicability of the principle, as there are when disparate treatment of humans is concerned? No, there are no such standards in the case law.

Or in the Constitution.

Again, I don't want to go into this too much; but it is odd that a group of five justices who hold themselves out as relying upon the text of the Constitution when deciding whether a statute is unconstitutional seemed to rely on a doctrine that was not expressly founded in the text of the Constitution.

 

[sarge]

Most interesting utterance by the court in a while.

One the one hand, the court has interfered in what should rightly rest with Congress. On the other hand, several states were stripped of the right to set their own voting procedures and were required to get approval from federal political appointees for any changes.

Until I learn more - I listened to NPR over lunch - I am siding against the court.

 

[thaiboxerken]

I predict lots of voting rules changes within 60 days of the next election. This will cause lots of confusion, and make it very hard for "those people" to vote.

 

[JoeTheJuggler]

I wonder if we'll see a lot more Section 2 injunctions granted?

 

[Myron Proudfoot]

And Texas and North Carolina have already starting trying to cut back on AA voting by moving to require voters to show IDs that, surprise, surprise, fewer non-white voters carry than do white voters...

 

[JoeTheJuggler]

I won't go into detail about this now, but it does strike me as a bit strange that section 4 is unconstitutional, in part because it is contrary to "the fundamental principle of equal sovereignty," which is found in the Constitution ... where?

It may sound like I'm trying to jerk your chain, but I'm not. I am, however, going to jerk the Supreme Court's chain a little.

The Supreme Court said the following about the Tenth Amendment: "More specifically, '"the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections."'" That's it. They did not find any violation of the Tenth Amendment, that I can see, nor did they specifically state in Shelby County that "equal sovereignty" was based upon that Amendment.

On the contrary, "equal sovereignty" was based upon case law. As Justice Ginsburg pointed out, "In Katzenbach, however, the Court held, in no uncertain terms, that the [equal sovereignty] principle '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.'"

The majority, taking a passage from the Northwest Austin case (a passage that Justice Ginsburg calls "dictum"), says that equal sovereignty "remains highly pertinent in assessing subsequent disparate treatment of States." But is there a body of law that supports this conclusion? Are there a set of standards for applicability of the principle, as there are when disparate treatment of humans is concerned? No, there are no such standards in the case law.

Or in the Constitution.

Again, I don't want to go into this too much; but it is odd that a group of five justices who hold themselves out as relying upon the text of the Constitution when deciding whether a statute is unconstitutional seemed to rely on a doctrine that was not expressly founded in the text of the Constitution.

Well the case law is clearly there. I'm not sure if they ever explicated it, but I think equal sovereignty may be deduced from the fact that the Constitution lays out the same number of Senators per state, and the same formula for Representatives, etc. Also, the idea that once admitted, some states could be relegated to a sort of second class state status is hard to fathom.

But I get your point. At least some of these are the very justices who would reject inferring the right to privacy from various parts of the Constitution in this manner. (Actually, that set might have only one member now--Thomas.)

Anyway, I think the court's reliance on "equal sovereignty" was relatively minor. You could ignore that, and the court's reasoning still stands on the argument that the extraordinary conditions that let the extraordinary establishment of federal veto authority over state legislation pass previous challenges no longer exist.

As much as I'd like to see Sections 4 and 5 stand, it's pretty obvious that what's going on today isn't remotely like what was being addressed back then or even within the 5 years prior to that. That 5 year thing makes it clear that Congress wanted to let states that had cleaned up their act (in those glaring and obvious ways) even as recently as 6 years earlier to be off the hook.

But I think what will have to happen is many more injunctions to be granted for violations of Section 2. It just shifts the burden of proof off the states.

 

[JoeTheJuggler]

Again, playing devil's advocate. . .

And Texas and North Carolina have already starting trying to cut back on AA voting by moving to require voters to show IDs that, surprise, surprise, fewer non-white voters carry than do white voters...

If we can prove that the purpose or effect is to disenfranchise minority voters, such measures can still be enjoined and then struck down under Section 2.

ID at the polls can be implemented in such a way that no one at all is disenfranchised. It could also be implemented in such a way as to be a modern Jim Crow law.

 

[thaiboxerken]

It's not ID at the polls that disenfranchise the voters. It's making a law to require it right before an election, thus making it hard for those voters to get an ID in time to vote.

 

[Brown]

Well the case law is clearly there. I'm not sure if they ever explicated it, but I think equal sovereignty may be deduced from the fact that the Constitution lays out the same number of Senators per state, and the same formula for Representatives, etc. Also, the idea that once admitted, some states could be relegated to a sort of second class state status is hard to fathom.

But I get your point. At least some of these are the very justices who would reject inferring the right to privacy from various parts of the Constitution in this manner. (Actually, that set might have only one member now--Thomas.)

Yeah, the equal sovereignty business has some foundations in law and policy, for sure; but that's not quite the same thing as saying that it has foundations in the Constitution.

And the Court did not rest its ruling exclusively on equal sovereignty. There are also concerns about distinct concerns about federalism (basically, distribution of power among the States and the Federal Government) that come into play, for example, and federalism concerns DO have an established constitutional basis.

Justice Ginsburg, I think, had a valid point in that elevating equal sovereignty to a constitutional consideration raises all kinds of concerns (or possible "mischief"), since States have always been subjected to different treatment by the Federal Government. But truth be told, I'd be intrigued by a lawsuit from one state that challenged some Federal action on the ground that it didn't get as good a deal as other States did, and its sovereignty was adversely affected thereby.

 

[JoeTheJuggler]

It's not ID at the polls that disenfranchise the voters. It's making a law to require it right before an election, thus making it hard for those voters to get an ID in time to vote.

Again, if the purpose or effect of such a law would be to disenfranchise minorities, such a law could be enjoined under Section 2.

ETA: And if the only thing that would lead to that effect is the timing, I would think getting an injunction would be a slam dunk. The law could be allowed to take effect after that election.

 

[JoeTheJuggler]

Justice Ginsburg, I think, had a valid point in that elevating equal sovereignty to a constitutional consideration raises all kinds of concerns (or possible "mischief"), since States have always been subjected to different treatment by the Federal Government. But truth be told, I'd be intrigued by a lawsuit from one state that challenged some Federal action on the ground that it didn't get as good a deal as other States did, and its sovereignty was adversely affected thereby.

And that'd raise the question of what we mean by "equal". Some states are net contributors to the federal government, and some net takers, but the policies that lead to the result aren't established for the purpose of treating states differently. The wording in Sections 4 and 5 of the VRA doesn't specify states by name. It just says that any state that had this record at this time get this special treatment.

The language in question in Section 4 of the VRA is (my emphasis), "shall apply in any State or in any political subdivision of a state which . ."

This treats the states at least as equally as does the way federal funds are raised and disbursed.


Of course, the fact that more populous states get more Representatives is another way states are treated differently. It highlights that the federal government isn't just a Congress of the states (as it was under the Articles of Confederation) but is a government of the people that recognizes the states simultaneously. IMO, it's pretty obvious that under the Constitution the states are only partially sovereign.