SCOTUS ruling on pre-clearance conditions of the Voting Rights Act

I showed a few people this, but figured I'd make a post here about it as well to get more comments/opinions. The pre-clearance provisions of the Voting Rights Act are not generally known or well understood, so I figured I'd post a small primer here (and outline the arguments for/against them). I have some general comments/opinions on this, but I'll save them for the end of the post. Forgive me if this is really boring, but I tend to live this sort of thing

Ahem. The National Voting Rights Act of 1965 (42 U.S.C. § 1973–1973aa-6)(full text located here, for reference: http://www.ourdocuments.gov/doc.php?flash=true&doc=100&page=transcript) is probably the most successful piece of legislation in American history. Before it was passed, voting amongst African Americans was abysmally low. The % of voters in the Black community was very low, on average - the highest being North Carolina (46.8%), the lowest being Mississippi (6.7%) (http://web.archive.org/web/20071121...tv.com/ipoj/voting_act/voting-rights-act.html). Today, they've achieved parity with Whites.

Anyways, the part of the Voting Rights Act that has caused a lot of aggravation is Section 5, which I will quote here:

Voting Rights Act said:

SEC. 5. Whenever a State or political subdivision with respect to which the prohibitions set forth in section 4(a) are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, except that neither the Attorney General's failure to object nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 of the United States Code and any appeal shall lie to the Supreme Court.

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What this means is that Nine states and several counties (full list here: http://www.usdoj.gov/crt/voting/28cfr/51/apdx_txt.php , with a map at Wikipedia here: http://upload.wikimedia.org/wikipedia/en/3/32/Us_s5_cvr08.PNG) must:

[URL said:

http://www.usccr.gov/pubs/051006VRAStatReport.pdf[/URL]] ... demonstrate that a voting change neither has the purpose nor will have the effect of discriminating based on race, color, and/or membership in a language minority group depending on whether the jurisdiction was covered as a result of the original enactment of later amendments. “Membership in a language minority group” includes “persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage.” 28 Covered jurisdictions have the burden of proof in demonstrating the absence of discrimination."

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After that, the Department of Justice or the U.S. District Court for the District of Columbia must sign off that changes meet these requirements.

Many in the South are displeased with this, as they claim that these restrictions are no longer necessary to ensure fair voting rights. Rep. Jack Kingston (R-Georgia) stated that If you move a polling place from the Baptist church to the Methodist church, you've got to go through the Justice Department.", while Rep. Lynn Westmoreland (R-Georgia) said: "Congress is declaring from on high that states with voting problems 40 years ago can simply never be forgiven, that Georgians must eternally wear the scarlet letter because of the actions of their grandparents and great-grandparents. ... We have repented and we have reformed."

Others have argued that these restrictions are unconstitutional under the 14th Amendment and the 10th Amendment, arguing that states have clearly been given the right to decide voting practices within their own borders. They also argue that unless these restrictions are applied to the entire country, they are unfairly discriminatory towards specific states/regions.(http://www.goldwaterinstitute.org/AboutUs/ArticleView.aspx?id=2536).

On the other hand, many groups argue that these pre-clearances are still necessary. From Court TV:

Supporters of the provision say that without the federal oversight of electoral changes, state officials in the covered states will be free to use seemingly innocent or administrative changes to the electoral process to suppress minorities’ access to polls. The result, they say, will be a significant reduction in the numbers and proportions of registered minority voters, the rate at which registered minority voters go to the polls, and the number of minority candidates who are actually elected to office." The argument is that without these pre-clearances, these areas would roll back laws and policies that give minorities equal access to the voting booth.

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I personally think Section 5 should be ruled unconstitutional and that it is also unnecessary. I think the fears that suddenly these states would revert back to Jim Crowe is unrealistic and that these pre-clearances have been used to block things such as Voter ID laws is pretty rediculous: especially when the standard has nothing to do with intent.

Anyways, sorry this post is a bazillion pages long. Comments, thoughts, etc?

Yikes, this is way over my head. I'm pretty clear about the principles -- i.e., everybody, regardless of race, color, or creed, should have equal rights to vote, and if some groups do not vote, we should find out why, and try to change things to encourage them to do so.

But whether this bit of legislation is useful, useless, or counterproductive, I honestly have no idea.

If I understand this correctly, about 45 years ago section 5 has been necessary and prevented the concerned states from applying restrictive voting practises.

The last devastating case of discrimination that I can think of right now is the Tuskegee study of untreaded syphilis in the negro male, and it was abandoned about 38 years ago after one of the physicians leaked information to the press. It was not abandoned when he had contacted the Center for Disease Control before that.

The last general case of discrimination against blacks I remember was reported by friends of mine: about a year ago, they discussed the presidential elections with a couple of physics students from the US, and one of them said that she would feel uncomfortable voting for Obama, because he is black. It was her reason for endorsing McCain. Confronted with the accusation that this is a racist mentality, she adamantly refused.

I hope this is a single instance, and you did elect a black president, so maybe you finally learned, but when I read statements like the one you quoted -- "Congress is declaring from on high that states with voting problems 40 years ago can simply never be forgiven, that Georgians must eternally wear the scarlet letter because of the actions of their grandparents and great-grandparents. ... We have repented and we have reformed." -- I get suspicious. We are talking about 45 years here, not never. And are white Republicans the only ones who are so concerned about this issue, or is it across race and parties? After all, they are all living in the same stigmatised state. And is this really a stigma, or is it actually only noticed by some officials who have to bother with the issue and make a problem out of it themselves? You can answer these questions better than I can.

From what you write, I think that the Department of Justice and the U.S. District Court for the District of Columbia should relax their judgements, but I guess the only ones qualified to suggest abolishment of section 5 are the African Americans in the concerned states.

Ditto on the Yikes, but I'll stick in one response, anyway...
Rith wrote:

I personally think Section 5 should be ruled unconstitutional and that it is also unnecessary. I think the fears that suddenly these states would revert back to Jim Crowe is unrealistic and that these pre-clearances have been used to block things such as Voter ID laws is pretty rediculous: especially when the standard has nothing to do with intent.

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In principle, I agree with the idea that this may be outmoded. The only thing I worry about is that it's so easy to juggle votes, hide votes, under-represent votes, etc, that I wouldn't want anything that keeps voting honest and accessible to be diminished, for a minority or anyone else.

I'd like to be reassured by your legal expertise that this ruling won't take away a non-constructive control on one loophole only to allow another one to creep in somewhere because of it.

Prime Junta said:

Yikes, this is way over my head. I'm pretty clear about the principles -- i.e., everybody, regardless of race, color, or creed, should have equal rights to vote, and if some groups do not vote, we should find out why, and try to change things to encourage them to do so.

But whether this bit of legislation is useful, useless, or counterproductive, I honestly have no idea.

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Don't worry about it - this one goes over most people's heads. I've had more experience with it then most: This topic was a favorite of my Poli Sci department. I've probably had six or seven class sessions devoted solely to this issue, and written a few large/small papers on it as well ... which I wish I could find, my notes/papers outlined this situation far better than I did here, and it also included voting statistics on other minorities such as Hispanics that are still (comparatively) disenfranchised.

coyote said:

If I understand this correctly, about 45 years ago section 5 has been necessary and prevented the concerned states from applying restrictive voting practises.

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Yup. I don't argue that it *wasn't* necessary. However, I still think it was ... if not unconstitutional, a severe over-reach of federal authority. I'd argue the constitutionality is more important than the rightness or wrongness of the act, as well. I think if we start axing parts of the Constitution for convenience's sake we run into dangerous territory. I'd be more "okay" with Section 5 if it applied to every state/region equally.

coyote said:

The last devastating case of discrimination that I can think of right now is the Tuskegee study of untreaded syphilis in the negro male, and it was abandoned about 38 years ago after one of the physicians leaked information to the press. It was not abandoned when he had contacted the Center for Disease Control before that.

The last general case of discrimination against blacks I remember was reported by friends of mine: about a year ago, they discussed the presidential elections with a couple of physics students from the US, and one of them said that she would feel uncomfortable voting for Obama, because he is black. It was her reason for endorsing McCain. Confronted with the accusation that this is a racist mentality, she adamantly refused.

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Right. Well, unfortunately, racism *does* still exist. I'd argue that it is mostly expunged from government, though. Anyone who uses race as a factor (be it a positive or negative one) in making those decisions is a racist. I would have voted for Powell above anyone, had he run. Hell, I would have volunteered for his damn campaign, and still would.

coyote said:

I hope this is a single instance, and you did elect a black president, so maybe you finally learned, but when I read statements like the one you quoted -- "Congress is declaring from on high that states with voting problems 40 years ago can simply never be forgiven, that Georgians must eternally wear the scarlet letter because of the actions of their grandparents and great-grandparents. ... We have repented and we have reformed." -- I get suspicious. We are talking about 45 years here, not never.

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Right, but in that 45 years blacks and whites have achieved voting parity. Hispanics, on the other hand, are way, way below everyone else. So why isn't California included? Or the South west? Or Florida? Or New York, for that matter?

coyote said:

And are white Republicans the only ones who are so concerned about this issue, or is it across race and parties? After all, they are all living in the same stigmatised state. And is this really a stigma, or is it actually only noticed by some officials who have to bother with the issue and make a problem out of it themselves? You can answer these questions better than I can.

From what you write, I think that the Department of Justice and the U.S. District Court for the District of Columbia should relax their judgements, but I guess the only ones qualified to suggest abolishment of section 5 are the African Americans in the concerned states.

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I can't really say it's split on party lines, as there are a lot of white Republicans who don't mind the Section 5 restrictions. I object to them on a primarily constitutional basis. I don't like this over-reach of federal authority, and if they want to do this, they need to do it *everywhere* - preferably with a constitutional amendment taking away the right to regulate admissions away from the states. I honestly don't know if these laws are necessary or not. And I think they go way over board. Why can't these states implement Voter ID laws? Because it "disproportionately effects" minority voters - because minorities and the poor are less likely to have Photo IDs. In my view, though, if you don't have a Photo ID, it's your own damn fault. They're free. It costs absolutely nothing. And most states ask if you want to register to vote the second you get one.

I don't like that the intent of the law is not considered. This court case was a challenge because the Homeowner's Association wanted to move their polling place to the same polling place that they used for everything else, and it was denied. That's the sort of thing that goes on with this law. It's not usually enforced or provisions rejected, but why do these areas have to go through special clearance? It strikes me as saying that if LA or NYC want to be racist jerks, they can, but Savannah and Dallas cannot.

Only African American of note I've heard oppose Section 5 has been Clarence Thomas, but I've heard people of the Sharpton/Jesse Jackson variety refer to him as a race traitor (hell, Sharpton called Condi and Powell 'house Negroes') so I'm sure he "won't count" as the average African American in this instance.

magerette said:

In principle, I agree with the idea that this may be outmoded. The only thing I worry about is that it's so easy to juggle votes, hide votes, under-represent votes, etc, that I wouldn't want anything that keeps voting honest and accessible to be diminished, for a minority or anyone else.

I'd like to be reassured by your legal expertise that this ruling won't take away a non-constructive control on one loophole only to allow another one to creep in somewhere because of it.

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I highly doubt that Jim Crowe would be able to be reinstated. Poll taxes, etc, etc are permanently banned under the Voting Rights Act. This bill covers things that are ...not covered by that.

I think Rith already pointed out the biggest trap--this really spikes the wheels on a photo ID requirement. Depending on where you stand with that one, this ruling is either reaffirming a clerical PITA with honest redeeming social value or making voter fraud (particularly with illegal immigrants) much easier.

@Rith- I don't see where this only targets certain states. Not saying you're wrong, I just need a "look right here, dumbass".

edit--Oops, found your link. I wonder what New Hampshire's been doing, and to whom...

I would think this would make a Voter ID clause easier for states. What am I missing?

@ dte - Hah, no worries, I pretty much posted a flood of text. Here's the map, for those interested:



The Voter ID thing gets knocked out in these states because it would have the *effect* of lowering the ability for minorities to vote. Minorities are less likely to have Photo IDs, so they would be 'discriminated' against - even if this was *not* the intent of the law whatsoever. But intent does not matter and thus the law would be struck down.

First, I'm pleasantly surprised to see Oklahoma not on that map--but it may be because in the past we had a very low minority population.

I think the fears that suddenly these states would revert back to Jim Crowe is unrealistic and that these pre-clearances have been used to block things such as Voter ID laws is pretty rediculous: especially when the standard has nothing to do with intent.

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The Voter ID thing gets knocked out in these states because it would have the *effect* of lowering the ability for minorities to vote. Minorities are less likely to have Photo IDs, so they would be 'discriminated' against - even if this was *not* the intent of the law whatsoever. But intent does not matter and thus the law would be struck down.

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The second part I get, but your first quote seems to say it was foiled by the pre-clearance clause...soo...(*grasps head in hands and tries not to whimper*) didn't this ruling just get rid of the pre-clearance thing? Or not for this purpose?

It's not *entirely* unconstitutional, from what they quoted in the CNN article. SCOTUS is just giving states/districts/etc more leeway in *appealing* these decisions and "bailing out"(which 17 districts have done) from the cover of this act. I want to try and look this up later when more information is out, but I am not quite sure what the actual new standard would be. Maybe Cornell or WSJ or the Economist will put something up later - or I can (shudder) track down the ruling and read through it.

Isn't government fun?!

Ahh, so really, as usual with government, we just don't know til the excrement hits the cooling device what will actually happen.

I'll look forward to your further analysis, then, since thinking this much about it has already made my head hurt.

Rithrandil said:

[...]
Yup. I don't argue that it *wasn't* necessary. However, I still think it was ... if not unconstitutional, a severe over-reach of federal authority. I'd argue the constitutionality is more important than the rightness or wrongness of the act, as well. I think if we start axing parts of the Constitution for convenience's sake we run into dangerous territory. I'd be more "okay" with Section 5 if it applied to every state/region equally.
[...]
Right, but in that 45 years blacks and whites have achieved voting parity. Hispanics, on the other hand, are way, way below everyone else. So why isn't California included? Or the South west? Or Florida? Or New York, for that matter?
[...]

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From what little I know, I agree that there should be equal federal oversight on voting parity for all states. Singling out states where the issue was relevant 45 years ago does not appear to be very clever or just.

Rithrandil said:

[...]Why can't these states implement Voter ID laws? Because it "disproportionately effects" minority voters - because minorities and the poor are less likely to have Photo IDs. In my view, though, if you don't have a Photo ID, it's your own damn fault. They're free. It costs absolutely nothing. And most states ask if you want to register to vote the second you get one.[...]

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Photo ID should be a separate issue. Where I come from (Germany) a fraud-proof identity card is obligatory for everyone above 18 years of age. That includes minorities, obviously, and is therefore not an issue in regard to voting parity.

Now, our current home secretary (who went a little paranoid after he was shot and became paraplegic 19 years ago) plans to add a memory chip with biometric information and the medical record to the ID, something I am opposed to because it further blurs the border between private and public information. I think it illustrates how a generally good idea can easily be turned against the citizens -- but this really is a separate issue.

coyote said:

From what little I know, I agree that there should be equal federal oversight on voting parity for all states. Singling out states where the issue was relevant 45 years ago does not appear to be very clever or just.

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Yup. That's where I stand. Especially since if we're all claiming the problem is "solved", where does that leave Hispanics? Are they *third* class citizens?(As a Hispanic, I could care less about illegals, btw - they don't deserve anything).

coyote said:

Photo ID should be a separate issue. Where I come from (Germany) a fraud-proof identity card is obligatory for everyone above 18 years of age. That includes minorities, obviously, and is therefore not an issue in regard to voting parity.

Now, our current home secretary (who went a little paranoid after he was shot and became paraplegic 19 years ago) plans to add a memory chip with biometric information and the medical record to the ID, something I am opposed to because it further blurs the border between private and public information. I think it illustrates how a generally good idea can easily be turned against the citizens -- but this really is a separate issue.

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I completely agree. I don't think the Photo ID should be a voting parity issue. I don't think having to prove your identity before you directly participate in democracy is somehow a violation of civil rights, either. Now, medical records? I'd draw the line at that. Some sort of fingerprint biometric system? Maybe I'd be for it, I don't know. I'm of the "I never plan on committing a crime" mentality, but it's not an issue where I'm all that conversant, to be honest.

I assume adding the medical records thing is to prevent you from voting after you die? This would make things very hard for the Democrats in Chicago.

magerette said:

I assume adding the medical records thing is to prevent you from voting after you die? This would make things very hard for the Democrats in Chicago.

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Well, the identity card that you have in some parts of Europe is not used primarily for elections. Since you have to be able to show the card to the police -- it is allowed to leave it at home, though -- it is very easy to confirm the identity of people. Naturally, it becomes more difficult for people to run from the authorities. Most of the time, this is a good thing, but go back 70 years and people could easily land in a concentration camp. Since historically, things shake up every few centuries, having an all powerful state is not without risk.

Regarding plans for biometric information and medical records, the current plan is not quite as drastic any more. The information will be on two separate cards: the ID will contain the photo in print and electronically plus two fingerprints which are optional, while the health insurance card, which previously contained data only on the identity, insurance and recent payments, will contain the medical record including treatments and prescriptions. While the electronic ID card uses an RFID chip that can be read from a distance, the health insurance card has to be in direct contact with a card reader, which should give at least the illusion of security. In truth, I think it is easy to loose a wallet, or from another perspective to steal it, get the card and read out data that should by all rights be classified.

I have to agree with your qualms at least somewhat, coyote. Our standard ID here is usually a state-issued (as opposed to federal) one, through the local Department of Motor Vehicles, usually a driver's license. There's also a photo id version for those who don't drive which is free or available at a nominal charge. Since 9/11, these now require fingerprints also. I can understand the usefulness of having medical records easily available for emergency medical treatment and so forth, but like you, I find it at least somewhat Orwellian to have the government know everything about you at the flash of a card reader, with the ability to use that information in any way they see fit.

It's just a step away from that sci-fi concept of everyone having some sort of chip embedded in their forehead, ostensibly for ID but actually for sinister mind control.

Ahem - sorry for leading this threat further away from the actual topic

I think there are problems with electronic data on ID / health insurance cards aside from the government:

First, insurance companies and employers have an obvious interest in getting medical data, and the electronic cards make access to this much easier even without the consent of the client or the employee.

Second, while this is only optional in my place, everyone who decides to include fingerprints on the ID chip runs the very real risk of them being read remotely. Since producing mock fingerprints out of plastic film and glue is child's play, this has rather interesting applications for criminals: for one, they can gain access to data and installations protected by fingerprint readers. Also, they can plant false evidence. In the latter case, the victim of the identity theft should better hope that he or she has a good alibi!

On the other hand, the use of fingerprints and medical records is limited. Most terrorists for example do not have a criminal record and consequently no problem with identification. Known criminals can easily fake fingerprints. The medical record might be useful for people with intolerances against common drugs used in emergencies, but in these cases, paramedics do not actually start a possibly futile search for your wallet anyway. The instances where this would actually be useful are rare as far as I know.

I personally think Section 5 should be ruled unconstitutional and that it is also unnecessary. I think the fears that suddenly these states would revert back to Jim Crowe

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They may not revert back to Jim Crow, but they will DEFINITELY try to suppress the black vote in subtle and creative ways. Don't ever think these attitudes are just going to go away. Racism runs deeps and is passed on generation to generation.

Taking the law off the books gives them license to run wild.

Its funny to me how some people just want us to forget that slavery and Jim Crow ever existed.

And it's funny to me how some people refuse to believe that things can change for the better.

dteowner said:

And it's funny to me how some people refuse to believe that things can change for the better.

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I think the point is this: sure things have improved since the last 40 years or so, but is it enough? Racism still seems to occur on a smaller scale -- correct me if I am wrong, please -- and it happens in other states for other minorities. Maybe it is better to err on the side of caution, then, to relax the rules gradually, instead of abandoning them altogether.

Considering that similar circumstances often cause similar issues regardless of location, it could also be a good idea to check voting parity in other states on a federal level -- it is one of the most important aspects of democracy, after all.

On the other hand, I agree that it looks like the Department of Justice and the U.S. District Court for the District of Columbia have taken things too far.