I just wanted to quote a couple of the liberals who spoke at hearing on the Voting Rights Act, because Justice Scalia and Justice Roberts got all the coverage. Snappy, media-ready shock-quotes will do that:
“racial entitlement”
Remember how US health care was reduced to broccoli?
If you’re a supporter of the Voting Rights Act and you read headlines you might have thought Scalia and Roberts were the only judges there, and you didn’t get a hearing but that isn’t true.
Justice Scalia referred to Section 5 as imposing “these extraordinary procedures that deny the states sovereign powers which the Constitution preserves to them.” Justice Kennedy asked whether “if Alabama wants to acknowledge the wrongs of its past, is it better off doing that if it’s an independent sovereign or if it’s under the trusteeship of the United States government?”
As Justice Stephen G. Breyer put it during the argument: “And one thing to say is, of course this is aimed at states. What do you think the Civil War was about?”
With mounting frustration, the liberal justices tried to make that point. “Why should we make the judgment, and not Congress, about the types and forms of discrimination and the need to remedy them?” Justice Sonia Sotomayor asked Mr. Rein, Shelby County’s lawyer.
Addressing Mr. Rein, Justice Elena Kagan asked: “You said the problem has been solved. But who gets to make that judgment really? Is it you, or is it the court, or is it Congress?” When the lawyer answered that while Congress can examine a problem, “it is up to the court to determine whether the problem indeed has been solved,” Justice Kagan responded: “Well, that’s a big new power that you are giving us – that we have the power now to decide whether racial discrimination has been solved? I did not think that that fell within our bailiwick.”
jibeaux
I know that racism hasn’t been solved because white boys still do not appreciate my badonkadonk sufficiently. QED.
Kay
@jibeaux:
I hope they announce their decision like that: “racism has been solved”.
PeakVT
Shorter state lawyers: Judicial activism is warranted in this case because we have the votes.
The Moar You Know
Good for Kagan. Congress has been dumping all the unpopular decisions on the Supremes for longer than my entire lifetime. I’ve been wondering when they’d finally get sick and tired of it.
SatanicPanic
Why should voting be left up to the states? That’s an idiotic premise to begin with.
feebog
Well, we know for sure that four justices are going to vote to strike Section 5 down, the only question is whether Kennedy joins them. I think he does, but he may surprise, just like Roberts did with the AHCA.
danielx
Right…racism will be solved when people quit putting Confederate flags on their homes, their trucks, their clothing, etc, which for some people will be about the fifth of never. All that business about “Heritage Not Hate” is horseshit, it was the flag of treason, traitors and slavery supporters with the latter being those who caused the Civil War. And no, it wasn’t the fucking War of Northern Aggression – as I recall, it started when the sand lappers fired on the American flag in Charleston harbor. We’ve invaded countries for a lot less.
The descendants and defenders of Jefferson Davis will never quit trying to suppress black votes, it’s part of their DNA.
Mike E
@The Moar You Know: I hear she’s good at softball…it’ll come in handy.
General Stuck
I got your modern state of Alabami right here.
And how did the white supremacists swing in AL?
A similar amendment to banish Jim Crow from the Bami constitution, only was voted down by 1 or 2 percent. This time it was deep6’d by 21 points. Hmmmmmm, wonder what could be different then and now?
eric
This case is analogous to Lopez in which the Court struck down federal gun free zones around schools because the Court believed there were no “direct” economic impacts. The Court so held despite congressional findings of economic impact. I believe Breyer wrote the dissent, so he will write the dissent again. Thomas’ concurrence is the most outrageous opinion in the history of 20th 21st opinions and that included Lochner.
Zifnab
Remember kids, voting disenfranchisement is cool, so long as no one can accuse you of bring racist about it.
handsmile
Civil rights legend Julian Bond appeared on The Colbert Report last night to “debate” this issue. As Colbert himself noted, one sign that racism has been overcome is that efforts to disenfranchise voters has shifted from those in white robes to those in black robes.
Always a gracious host, Colbert wished Bond “good luck with voting in the future.”
Also too, in introducing the segment, Colbert referred to Scalia as an “A-hole.” (his mask does slip sometimes)
Poopyman
“Solving racism” is a red herring here.
I’ll be happy when racism is finally “solved”, whatever that means. But the issue before the court is not racism per se, but the institutionalized discrimination employed by certain states to deny or discourage certain groups from voting. That is substantive and quantifiable enough to have filled over 12,000 pages of evidence presented to Congress. Those are the facts the SC should be addressing. That they’re not is a clear indication of the way they want to go.
c u n d gulag
If it wasn’t for Roberts, and the other “Conservative Corporatist Gang of Three/Four,” wanting to do what they can to reverse The Voting Rights Acts, and for Scalia to have another opportunity to grandstand, by all rights, the SCOTUS shouldn’t be anywhere near this case.
CONGRESS has the right, according to the Constitution, and has excercised that right for over 40 yards, and renewed that legislation, to PRE-APPROVE any voting requirement changes in areas proven to have suppressed votes before, and had, for over a hundred years.
They should never have taken his case on.
The end result will probably be that the Federal government can bring up cases AFTER the the votes of “undesirables” have already been suppressed, and the election won.
And the MSM will say, “Well, since before, the Liberals had the right to check the changes before, see, like we keep telling you – ‘Both sides do it!'”
Mike E
@handsmile:
The term does sound a lot better in the original
GermanSicilian.Kay
@c u n d gulag:
That really is the key practical point that conservatives ignore. Why is voting different? Because of THAT. The harm can’t be remedied, ever, as to that election. No do-overs. Thus, pre-clearance.
elmo
@danielx:
I’ll listen to them with exactly the same level of respect and consideration I would give to a German defending a display of the swastika. The swastika is every bit as much a part of “German heritage” as the stars-and-bars is of the American South. More, actually – the swastika flew over Germany for more than a decade, whereas the Confederate flag was the symbol only for four years.
And even more to the point, the swastika is a more recent part of German heritage, and covers even a greater proportion of German history than a mere comparison of the numbers suggests. Germany as a nation-state has existed only since 1871. So the 12 years of Nazi Germany is 8%, or nearly a tenth, of Germany’s entire history. In contrast, the Confederacy is only 4 years out of the United States’ more than 230, or about 1.7%
The question then becomes this: Why are you choosing that four-year period, out of the entire 230+, to call the truest expression of your “heritage?” You, Confederate Flag wearer, are the one focusing on that 1.7% of Southern history and calling that period your “heritage.” I’m entitled to ask why that is, and to draw conclusions from it that you may not like.
Belafon (formerly anonevent)
@General Stuck: If you read the Wikipedia page you link to, people were opposed to it because it included language that said the amendment does not recognize a requirement for education, which some believed could be interpreted to end public education in the state.
MikeJ
@SatanicPanic:
1) Not all elections are federal elections. Before the 17th amendment, representative was the only federal office you could directly vote for.
2) There’s nothing in the constitution that gives the federal government authority over elections.
General Stuck
@Belafon (formerly anonevent):
Yea, I saw that, and decided it didn’t matter because we are in the 21st century and Jim Crow laws remain of the books. I’m not up on the twists and turns of AL politics. If it was a poison pill, and I doubt it was for the average idiot white voter in that state, then only white supremacists would have inserted it. The point is Al, is leading the charge for undoing the VRA, and they can’t even repeal Jim Crow in the year 2 thousand and 13.
edit – Hell if the wingnut SCOTUS strikes down the VRA, Alabama won’t even have to pass new poll tax laws, since the old ones remain on the books.
handsmile
To underscore feebog’s comment above (#6) on the possibility of Anthony Kennedy being the pivotal fifth Justice to uphold Section 5 of the VRA, this ScotusBlog “Argument Recap” of the Shelby County case does offer a slender light-ray:
http://www.scotusblog.com/2013/02/argument-recap-voting-law-in-peril-maybe/
azlib
The big lie of what this case is all about is exposed with this debate. A true Constitutional “originalist” would deny the appeal and tell the appellants to go talk to Congress about repealing the Voting Rights Act.
SatanicPanic
@MikeJ: Fair enough, doesn’t make the idea any smarter.
MikeJ
@General Stuck:
This is not true. Even if the VRA is struck down, that will not put the laws that were prohibited by judicial review will be any more constitutional. They would have to pass all those laws, and even then voters in the state could take them court where they would be almost certainly be struck down again. Of course by the time they get through the courts the damage is done, which is the point of reviewing them before they’re put in place.
I still think the courts should be allowed to give advisory opinions on constitutionality before bills are passed. Sadly, it’s unconstitutional to do so (“actual controversy”).
c u n d gulag
@Kay:
They ignore it, because they hope no one else notices it either.
I’M LOOKING AT YOU, MSM!!!
catclub
@The Moar You Know: “Well, that’s a big new power that you are giving us – that we have the power now to decide whether racial discrimination has been solved? I did not think that that fell within our bailiwick.”
Of course, they are only given permission to decide in one direction. So not much flexibility with that power.
Similarly with affirmative action. The court is not really being invited to impose affirmative action when it is needed.
handsmile
@c u n d gulag: , @Kay:
On this very issue of retrospective review, I would strongly recommend (if you’ve not read it already) this recent article by Charlie Savage, the NYT’s brilliant legal reporter: “Decision on Voting Law Could Limit Oversight”:
http://www.nytimes.com/2013/03/01/us/politics/voting-law-decision-could-sharply-limit-scrutiny-of-rules.html?n=Top%2fReference%2fTimes%20Topics%2fPeople%2fS%2fSavage%2c%20Charlie&_r=0
While Section 2 of the VRA may be retained, it will offer much weaker protection to voting rights plaintiffs and shift the necessary burden of proof .
Roger Moore
@The Moar You Know:
The bigger thing is that this is an issue where they clearly avoided dumping the issue of the Supreme Court. They passed the VRA recently, and they included bailout provisions so jurisdictions that genuinely don’t have problems with discrimination don’t have to go to the Supremes to get off the preclearance list. There’s no way you can describe the situation as pawning the hard decisions off on the Supreme Court. It’s only at the Supreme Court because the Court decided to second guess Congress’s decision making, i.e. judicial activism.
Davis X. Machina
@elmo:
It’s not always even your heritage. In this Maine town, 1/7 of the male population didn’t come back from the Civil War, and there are three student vehicles in the parking lot behind my building with Confederate battle flag stickers on their windows.
They’re not the scions of recent corporate transfers from Research Triangle Park, either. The kids who own them have family names that appear on a local Corner, Pond, and Brook, respectively.
srv
Well, Sandra Day saw some future end to Affirmative Action, she just didn’t see it in her term.
I’m pretty sure most of the Court believes we’ve been in a post-racial era since her departure.
General Stuck
@MikeJ:
Well, my comment was some tongue in cheek. And I do realize that poll taxes that are obvious are illegal. Though there could be a sly cottage industry to write some new slippery ones that we will have to relitigate all over again. And in the meantime, they can’t be nipped in the bud, and end up disenfranchising minority voters all over again. Just because the high court has made something illegal, doesn’t mean white supremacist will not try to circumvent it. Look at Roe V Wade and abortion. Not to mention some brand new xenophobic laws concerning Hispanics moving into southern states, that some have compared to Jim Crow for brown people/ The point is the fact that these segregation laws have been on the books since 1901, and I think that is some sort of testament to something in the here and now. That is not very good.
catclub
Someone tell me if I am wrong. I thought the VRA includes an out: If you have ten years with no voting law changes stopped by the DOJ, you can apply for exclusion from section 5.
Have any of the plaintiffs done this? I have heard of ther jurisdictions that have been exempted. Am I imagining all this?
Jim, Foolish Literalist
@feebog: IANAL, much less an expert on the current USSC, but it seems to me that the CW was that Kennedy would slide left into the “swing seat”, and, based on what I remember about his dissent from the Obamacare case and his going along with Citizens United, he has rejected that seat loudly and angrily.
Roger Moore
@MikeJ:
Except for the 14th, 15th, 19th, 24th, and 26th Amendments. Those give the feds the right to interfere in state elections if and when they believe that people’s rights to vote are being denied or abridged. That’s quite broad power.
c u n d gulag
@handsmile:
Thanks for the tip – but I’ve already seen it.
Redshift
@SatanicPanic:
Perhaps one of our more historically-informed FPers could give more detail, but from what I’ve read, this, like most of the large and obvious flaws in our Constitution, is related to slavery and the 3/5 compromise.
gwangung
DAMMIT, WHY THIS BEING REITERATED????
The bailout procedures ARE RIGHT THERE IN THE FUCKING LAW. They don’t even have to go back to Congress, go to the Court, THEY HAVE TO FOLLOW THE SIMPLE WRITTEN PROCEDURES.
@catclub: No. You are NOT wrong.
Chris
@elmo:
Unfortunately, that reaction to the swastika – “yes, that is a horrible element of our past and it must never happen again. Full stop” – is a pretty rare event.
It’s true in Germany, but in most other nations as near as I can tell, the reaction is pretty much what it is in the American South – “oh my God I can’t believe how horrible it is that people actually remember that because you know they’re just doing it because they hate white people and are trying to make us feel bad so they can exploit our guilt for money” etc etc etc.
I seriously hope there’ll be a day when the South can actually contemplate its past with the same maturity Germany does nowadays. It’ll be a long time coming, though.
David Koch
remember when Elana Kagan was nominated and our progressive betters freaked out because she had worked for Clinton(history’s worst monster), and they just savaged her. Goodtimes.
Jim, Foolish Literalist
@David Koch: and Sonia Sotomayor was a secret sleeper agent for Opus Dei?
lumpkin
@MikeJ: @MikeJ:
Read the 15th amendment
Ash Can
@catclub:
Source here.
FlipYrWhig
@Jim, Foolish Literalist: @David Koch: The blogosphere really enjoys scenarios in which they can say “If you really loved me, Obama, you’d do X,” and then when Obama does A through W or Y or Z, it’s the worst betrayal ever. It works especially well if you had no knowledge of the alphabet before hearing the proposition.
Another Halocene Human
@Kay: I liked Colbert’s announcement last night.
Another Halocene Human
@SatanicPanic: Agreed. The Constitution was too hands off on these matters, probably because of *cough* slvry *cough*.
Turgidson
@handsmile:
I think occasionally, some rightwing jackass is such a fucking asshole that he thinks it’s too egregious to even satirize it. Scalia’s entitlement comment seems like a good candidate for some “even I don’t think this shit is funny” treatment.
MikeJ
@lumpkin: Still doesn’t give the feds control over elections. It puts limits on what the states can do, as does the 19th, 24th, and 26th, but it doesn’t give the feds any additional authority.
Another Halocene Human
@Chris: But Germans of a certain age had this whole denial tactic of “I didn’t know what was going on, I suffered too during the war,” and so the swastika was associated with Hitler and losing and deprivation, not positive things. (It was young men growing up in impoverished DDR who reappropriated it.)
The Nazis ran the whole terror state apparatus within their own borders, after all, because in many quarters they lacked popular support. However, in general Germans didn’t take ownership of the actions of their government. (The few popular demonstrations against the Nazi regime within Germany had the Nazis pissing their pants.) Maybe it was too little time as a democracy before the Nazi coup. Plus the Nazis killed/jailed all the radical opposition leaders in the first act because they weren’t stupid. So many Germans thought it was enough to express fear of their government as an excuse and looked the other way because it was better to protect one’s self.
A lot of mischief was wreaked by Communists when the Nazis let them out of jail as part of the pact with Stalin. Of course, not enough to bring Hitler down, as the Communists no doubt hoped.
Also, too, deNazification was kind of a joke, but they did take out the top leadership, so the same conservative petty bourgeois assholes who were rahrah for the Conservatives or the Nazis later got to keep their status in society if they swore up and down they weren’t Nazis or weren’t Nazis any more? Where do I sign up, Allied Forces?
So few defenders of Nazism, save deluded children of top party leaders. (The ones who weren’t killed by their parents when the Allied forces closed in.)
OGLiberal
@gwangung: I’ve been screaming to myself about this as well. If there are provisions in the act for getting off the naughty list, why are these states/counties still on the list almost 50-freaking-years after the law was originally passed? If they are doing things that were being done during the Jim Crow era then why don’t they just stop doing the freaking things that make them run afoul of the law? Why is this almost never mentioned/asked/noted?
TR
The best part about the rebel flag is that it’s not even the official flag of the Confederacy. It’s a battle emblem used by some troops during the war, but one that first gained national fame during the civil rights era.
It is a part of southern heritage — the part that said I ain’t sendin my kids to school with no kneegrows
Kay
@Another Halocene Human:
I’m telling people here they announced “racism has been solved” if they gut the VRA. I don’t care what they actually say. Blah, blah, blah. No one reads the whole opinion. It could be in there :)
Jim, Foolish Literalist
Also, as I understand, a way of saying “Coloreds stay out” of my bar, my restaurant, my store, when they couldn’t put that sign up any more.
Roger Moore
@MikeJ:
Except for the part where it gives Congress the power to enforce those provisions with appropriate legislation. And since those amendments empower Congress to act when the right to vote is denied or abridged, they have a lot of power to step in when states put up obstacles to voting that fall short of outright denial, like excessively long lines or overly onerous registration procedures.
handsmile
@gwangung: , @catclub:
Lawyers for Shelby County and other opponents of Section 5 maintain that the statutory requirements to obtain such a “bailout exemption” are too onerous for any state or municipality. Further, they argue that even when these 10-year requirements are satisfied, the DOJ rarely grants an exemption. Hard work is hard, and so it’s far preferable to scrap Section 5 entirely.
Sadly (and ominously), at oral arguments in the 2009 NAMUNDO voting rights case, both Justices Scalia and Kennedy remarked that bailouts were “impracticable.” That case, decided 8-1, is largely viewed as the Court’s punting on the constitutionality of the VRA’s pre-clearance provision.
http://en.wikipedia.org/wiki/Northwest_Austin_Municipal_Utility_District_No._1_v._Holder
elmo
@Davis X. Machina:
May Joshua Chamberlain’s ghost bayonet them for all eternity.
Kay
@handsmile:
I think part of the reason the conservative argument sits so poorly with certain parts of the public is it’s so state-centered, so not voter-centered.
What are they really saying? “It’s an inconvenience for us to protect what you consider a threat to your voting rights” Oh, well, sorry, “state of Alabama.” Didn’t mean to get you up off your ass there. Conservatives assume “people” will view this as Alabama vs The Big Bad Federal Government, but that’s a conservative thing. What if people consider this as the federal government watching the state of Alabama on their behalf? That’s how it was intended. There’s a long history of the federal government stepping in to protect minority rights. I don’t know that Justice Roberts should assume everyone considers the feds this huge threat. We don’t. If we did, we would be conservatives.
Roger Moore
@Kay:
He does, so he assumes that everyone else does, too. More importantly, he does, which is all that really matters because he’s one of only 9 people who get a vote on the matter.
Kay
@Roger Moore:
Right, but if you talk to people in Ohio, Democrats, even if they’re not minority voters, they’re always yelling “where is the federal government!” when they feel they’re being treated unfairly by the Sec of State. They seem to “get” this idea that there’s oversight, and an “appeal” of sorts. Is it really so common for regular people to be outraged that the feds look at voting? That seems like a very specific conservative legal theory.
handsmile
@Kay:
Yes, but the near-certainty is that John Roberts does not trouble his beautiful mind whether “everyone considers the feds this huge threat.” He’s quite content to find only another four who agree with him on that assumption.
Indeed, the Roberts Court has distinguished itself by its grave concern for institutions (states/corporations) rather than individuals (voters/employees).
Chris
@Another Halocene Human:
I agree with you there’s been a substantial rewriting of World War Two era history. The primary purpose of it has been to exculpate all the conservative elites who helped Hitler come to power (which is why in every single World War Two movie you will ever see, there’s always a conflict between the “good” Prussian officer-gentleman of the Wehrmacht and the “bad” psychologically disturbed Nazi sadist of the SS), while downplaying the role left-wingers played in the resistance. A similar process of whitewashing took place in occupied countries, in which the collaboration was rewritten as “oh, there were just a few traitors bought and paid for by the Germans,” hiding the fact that collaboration often ran a lot deeper than that.
With all that said, I do still see a major difference between the Germans’ frank and unconditional statement that “yes, the Nazis were bad, full stop” and our attitude towards our past. You don’t see mainstream Germans flying Nazi flags and claiming “heritage, not history.” You don’t see mainstream Germans arguing “well, we would have ended the Holocaust in our own good time” and bitching about “the war of Allied aggression” or some such. You don’t see mainstream Germans saying that Hitler and the Nazis get a bad rap and we should remember the good they did too, like Volskwagen and the Autobahn. All these things are absolutely mainstream for us. Not just in the South re slavery, but in the entire country re things like the Indian genocide – and lots of Europeans are the same way about the colonial era.
burnspbesq
@Kay:
Well just hold on a sec.
Are you telling me that if a state legislature passes a new law, effective at the next election, that would have the effect of disenfranchising a protected class, DOJ can’t do anything to stop it?
I seem to vaguely remember from my long-ago Civ Pro class that there are these things called “TROs” and “preliminary injunctions.”
The Moar You Know
re: swastikas
I don’t think they’re exactly analogous to the Stars and Bars (or as I call it, the retard marker). The swastika has been around for longer than writing. It’s a religious symbol for more people than inhabit the entire Western world. That Hitler launched his campaign of murder under banners sporting the world’s most ancient religious symbol is just yet another one of his crimes that makes me wish that hell existed.
The Stars and Bars gets no such leeway.
Davis X. Machina
@Jim, Foolish Literalist:
In a 94.3% non-colored world, I’m not sure why I see it at all. Yet I do.
MomSense
@Davis X. Machina:
I have this feeling that we may be neighbors and not even know it.
Do you regularly see a big, brown pick em up truck with huge wheels that flies a Confederate Flag in the back?
opie jeanne
@danielx: My youngest just sent me a photo of the Traitors’ Flag flying in front of a government building, the capitol?, in South Carolina. Our reaction was WTF is that doing there?
Quaker in a Basement
Serious question: Are there any other areas where federal law applies to some states but not others? I’m not thinking of any right off, but I could be overlooking some obvious ones.
Kay
@burnspbesq:
Well, right, and that’s CATO’s argument, that gutting Sec 5 will just make them look like “normal lawsuits”. I know you know this, too:
They have so few tools.I feel as if I spend half my time with voter complaints saying “they have so few tools!” VRA, HAVA, so much of it is state law.
I hate to lose one. Especially one that was so effectively used this past cycle, in Texas and elsewhere. Just the information they got in the Texas case is enormously useful, how deliberate it was, how targeted to minimize Latino political clout. It was pretty egregious.
gene108
Republicans should just repeal the 15th Amendment that makes all the racial discrimination stuff, with regards to voting, illegal and be done with all this p_ssy footing around.
gene108
Republicans should just repeal the 15th Amendment that makes all the racial discrimination stuff, with regards to voting, illegal and be done with all this p_ssy footing around.
Same comment got moderated so I’m reposting while leaving the ‘u’ out of what I assume is the objectionable word
gene108
@General Stuck:
Poll tax is illegal via Constitutional amendment, which supersedes the state Constitution.
Literacy tests, on the other hand, are expressly prohibited via the VRA.
Can’t wait for the cost conscious Alabama Republicans to spend tax payer money cooking those up again, if the VRA is struck down.
gvg
I really feel the argument is overlooking intended disenfranchisment can be political power instead of racial and be just as wrong. gerrymandering is so bad that I think it justifies preclearance everywhere.
Historically it was a big issue quite separate from the later Civil WAr. Historically I think you could show there have been vote supression gerrymandering EVERYWHERE.
xian
@elmo: I agree completely. The confederate battle flag is a flag of treason and rebellion, of an enemy of the United States, and one that was defeated utterly. Flying the flag is a combination of treason, racism, and loserdom.