Wednesday, June 26, 2013

Voting Rights Decision--Legal Realism and Legal Arguments

OK, let's be real.

The 5 Republican Justices voted for the Southern states--the base of the Republican Party.
The 4 Democratic Justices voted against those states, and in favor of Black Americans--a major part of the Democratic Party's base.

Sorry. But you have to be a little obtuse not to see that.

Yes, there were some strong legal arguments made by the Republican Justices. There were some strong ones made by the Democratic Justices. But--"Oh, surprise, surprise!"--the Republicans on the Court all just happened to choose the arguments that favored the Republican base. And the Democrats on the Court all just happened to choose the arguments that favored the Democratic base.

What do you suppose the odds are? The odds that the 9 Justices being objective, neutral, detached, impartial, etc., would all just happen to adopt those legal arguments that just happened to support their own political party?

Ask a mathematician or statistician for the odds. Or just think about it. Again, you have to be pretty dense not to see that the Justices' voting was extremely partisan.

Now for the legalities of the case.

Yesterday, in Shelby County, Alabama v. Holder, the Supreme Court invalidated a critical section of the Voting Rights Act of 1965.

The Voting Rights Act, for nearly 50 years, has required states with a history of racial discrimination in voting--as well as some counties outside those states--to get approval from the federal government when changing their voting laws. This "pre-clearance" was imposed to prevent those historically discriminating jurisdictions from enacting laws that would interfere with voting rights on the basis of race or color--i.e., that would make it more difficult for Blacks to vote.

Which states were identified as having a history of racial discrimination in voting? That is, which states were required to submit their voting laws to insure that they didn't negatively affect the voting rights of African-Americans?

Well, the southern states. The states of the former Confederacy. (Again, also a few counties elsewhere.)

Section 4 of the Voting Rights Act defines those states (or subdivisions) as those that used tests for voter registration and which had low voter turnout. Originally, and in subsequent re-authorizations of the Act,  that meant literacy tests and the like, and voting rates significantly below the national average in presidential elections in the 1960's and 1970's. Specifically, that meant southern states and, in later re-authorizations, also Alaska, Arizona, and some counties in a few other states.

So, section 4 defines the states (and subdivisions) that are subject to federal pre-clearance because of their history racial discrimination. Section 5 provides for the pre-clearance.

The Court invalidated section 4. It did so on the ground that the definition of racially-discriminating states is outdated. That it is based on data from the 1960's and 1970's. That there has been enormous progress in eradicating racial discrimination in the South (as well as in the other jurisdictions covered). That, for example, there are no more literacy tests or similar discriminatory devices, African-American voter turnout is high, and many African-Americans have been elected to political office.

The 5 Justice majority, in the opinion authored by Chief Justice Roberts, actually credited the Voting Rights Act for much of that progress.

But the majority said that the federal government could no longer impose on the "equal sovereignty" of states on the basis of outdated--i.e., 1960's and 1970's--data. To continue requiring pre-clearance of state voting laws, Congress will have to update the section 4 definition of the states and other jurisdictions to be covered.

Chief Justice Roberts majority opinion was joined by Justices Scalia, Kennedy, Thomas, and Alito. Justice Thomas also penned a separate concurring opinion arguing that section 5--the pre-clearance provision--should be ruled unconstitutional as well.

In her dissenting opinion for the 4 Democratic Justices, Justice Ginsburg summed up the majority opinion this way: the Voting Rights Act works, so let's get rid of it.

Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, argued that the Voting Rights Act was undeniably still needed. She pointed to recent re-authorizations of the Act by Congress by overwhelming votes. To Congress's constitutional authority under the 15th Amendment to enact laws to insure that voting rights are not denied on the basis of race or color. And perhaps most pointedly, she listed several examples of state voting laws--all in Southern states--blocked by the federal government in the years leading up to the latest re-authorization of the Act in 2006.

As Ginsburg wrote, "These examples, and scores more like them, fill the pages of the legislative record. The evidence was indeed sufficient to support Congress' conclusion that 'racial discrimination in voting in the covered jurisdictions [remained] serious and pervasive.'"

In short, Congress did consider recent racial discrimination in voting. It didn't simply rely on old, outdated data.

(More legalistically, Ginsburg also suggested that the Court could simply exclude Shelby County, Alabama, from coverage of  section 4--as the Voting Rights Act allows--if Shelby County could show that it no longer should be covered. There was no reason for the Court to invalidate the entire section 4.)

One more thing. Section 2 of the Voting Rights Act prohibits any denial or abridgment of voting rights on the basis of race or color. That section applies to all states and all subdivisions. That section was not affecetd by the Court's ruling. The majority made that clear.

So that's the Voting Rights decision in a nutshell:
5 Republican Justices versus 4 Democratic ones.
5 Republican Justices favoring Southern states (and a few other places) that were covered by section 4.
4 Democratic Justices supporting the protection section 4 gave to Black voters against racial discrimination in the South (and a few other places).
5 Justices saying that racial discrimination in voting in the South has largely been eliminated.
4 Justices saying such discrimination persists.
5 Justices saying that Congress must justify its continued imposition of pre-clearance on equally-sovereign states.
4 Justices saying that Congress did that when it reauthorized the Act in 2006.

There you go.
Hope that helps.

Waiting for the same-sex marriage decisions to be released--maybe momentarily.