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The “Alabama Punting Syndrome” Revisited: Section 5 of the Voting Rights Act and the Problem of Congressional Inattention to “Constitutional Flares”

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8 Responses

  1. Adam says:

    “It’s fall, and the NCAA football season is in full swing. (Obligatory “Roll Tide!” omitted.)”

    I see this was written before this weekend.

  2. Brett Bellmore says:

    A possible problem here is that the Justice department has been refusing to pre-clear some things, like voter ID, that the Supreme court has already ruled constitutional. While Congress *does* have the power to bar some constitutional election related practices by the states, (Think literacy tests.) it doesn’t help the case if it looks like pre-clearance is being used abusively.

  3. Joe says:

    “Think literary tests.”

    The USSC upheld literary tests too. The issue here is that in a specific context, not in all cases, an otherwise neutral law might be used in a way that furthers discrimination.

    The USSC upheld a facial challenge of a specific voter id law. There are various types of voter id laws. The USSC left open the chance an as applied challenge of even the specific law in question might be successful. Another voter id, particularly one (unlike there) where more evidence was present of problems would particularly not be necessarily valid.

    The legislation in question, via a lot of congressional fact finding plus some history, determines that specific areas of the country warrant a special burden be met, with examination by the executive to weigh the evidence as is often done. I’m not seen the “abuse” yet.

  4. Joe says:

    “bestir themselves to action”

    How often do legislatures actually do this with all due respect to the USSC? Also, the Holder case was three years ago. That isn’t exactly that long ago as legislative things go, particularly the U.S. Congress.

    The “proportional and congruent” rule first was used in Boerne to point out that a nation-wide law that in effect countermanded a USSC case to deal with a limited number of wrongs was not sound. The law at issue here was passed pre-Holder; it was not in the teeth of direct precedent on the question or even a case that gave a broad hint the specific matter was on thin ice.

    There was loads of material submitted to back up the re-authorization. It passed by a supermajority. This is somewhat novel for such a major piece of legislation so it is not surprising that Congress did not “bestir” itself to amend it and be forced to deal with a lot of controversial ongoing controversies instead of taking the conservative path of reauthorizing what was in place already. One that put forth a reasonable argument.

    The opt out measure IS there even if “relatively few” successfully managed it. I’m not sure how much change from 1965 should be enough. Maybe, duly elected individuals and administrations are the best people to determine that given problems (see the record to the law) continue.

    I think ideally the law should be expanded, see problems in Ohio, but it probably could have been deemed underinclusive back in 1965 too. Legislation is imperfect. Maybe, the case will nudge Congress to update things. That might be ideal. And, the supermajority that passed it the last time around (though the situation in Congress is not quite the same) might lead to some optimism. I guess.

  5. Brett Bellmore says:

    Yes, it might be; In the case of literacy tests, the problem was that they weren’t being honestly administered. (IIRC) You could be a black scholar and fail one, most places.

    It’s not impossible that Voter ID laws could be administered in a discriminatory manner, too. But it doesn’t appear to me that Justice department decisions on preclearance are being predicated on that issue, but instead on whether the state policies conform to administration preferences.

    That’s arguably a kind of abuse, for a law supposedly intended to prevent discrimination, not merely to permit the President to dictate state election laws.

  6. Joe says:

    “It doesn’t appear to me that Justice department decisions on preclearance are being predicated on that issue, but instead on whether the state policies conform to administration preferences.”

    “Administrative preferences” = judgment that such and such a law in practice would be discriminatory. Let’s take South Carolina:

    “Officials in DOJ’s Civil Rights Division found a significant racial disparity in the data provided by South Carolina, which must have changes to its election laws precleared under Section 5 of the Voting Rights Act, because of past history of discrimination.” [etc.]

    http://tpmmuckraker.talkingpointsmemo.com/2011/12/breaking_justice_department_blocks_south_carolinas_voter_id_law.php

    We can debate the facts here but that is the argument and as in some other case, some administration might weigh everything differently, but that is the nature of agency discretion etc. — who is in power matters.

    I still don’t see the “abuse.”

    The concern for any number of voting regulations was and is that in practice they would not be applied honestly. Selectively, concern for “fraud,” e.g., would be in place. So that absentee ballots (often favoring Republicans) would be accepted, while far and in between in person voting fraud would require picture id. And the result would burden the certain voters various constitutional provisions particularly are concerned about.

    Literary tests and other types might not have the exact same concerns, but the general principle is similar.

  7. Brett Bellmore says:

    The question is whether 5 members of the Supreme court are going to agree that disparate impact really qualifies a law as “discriminatory” if it is both facially neutral, and honestly administered. That kind of reasoning leaves very few laws NOT “discriminatory”, after all.

    I see no basis for being confident about it in either direction.

  8. Joe says:

    The fact the five members of the USSC disagrees with the executive, at times via opinions that in fact set forth new law (e.g., as Citizens United did, overturning a previous precedent) doesn’t tell me where the “abuse” is either.

    Changing decades worth of voting law in this area is quite possible, but again, not “abuse” for the President or others to follow the existing path, particularly since disparate impact as a red flag was a core reason for the preclearance rule in the first place. Each law wasn’t facially discriminatory but in practice discriminatory application occurred.