May 18, 2012

"Divided D.C. Circuit Panel Upholds Constitutionality of Voting Rights Act, Teeing Up Issue for Supreme Court."

The Shelby County case is explained by Rick Hasen over at the Election Law Blog.

From the dissenting opinion by Judge Williams:
Why should voter ID laws from South Carolina and Texas be judged by different criteria (at a minimum, a different burden of persuasion, which is often critical in cases involving competing predictions of effect) from those governing Indiana?...

It goes without saying that racism persists, as evidenced by the odious examples offered by the majority.... But without more evidence distinguishing current conditions in the covered jurisdictions from those in the uncovered ones, § 4(b)’s coverage formula appears to be as obsolete in practice as one would expect, in a dynamic society, for markers 34-to-59 years old.

15 comments:

Ken said...

It goes without saying that racism persists

Why does this go without saying?

damikesc said...

The actions recently will end up killing the entire VRA. If something is legal in some states, there is zero legal justification for it being illegal in other states.

Matthew Sablan said...

"If something is legal in some states, there is zero legal justification for it being illegal in other states."

-- Err... might want to be more specific. The whole basis of federalism is that some powers are reserved to the states and that they can enforce them differently. Laboratories of democracy and all that jazz.

Alan said...

How can voter ID law be racist, if everybody has to get voter ID?

Unless they pull a George Zimmerman and make white Hispanics use outdated photos that will cause election authorities to doubt the authenticity of the ID?

damikesc said...

- Err... might want to be more specific. The whole basis of federalism is that some powers are reserved to the states and that they can enforce them differently. Laboratories of democracy and all that jazz.

If a law involving voter ID is legal in, say, Indiana there is zero justification in the federal government saying it's illegal in SC.

This is about the Feds determining state laws are illegal.

Ann Althouse said...

"-- Err... might want to be more specific. The whole basis of federalism is that some powers are reserved to the states and that they can enforce them differently. Laboratories of democracy and all that jazz."

It's a federal law, applying in a nonuniform way, with some states treated differently from others based on a calculation about the proportion of minority voting in the year 1972.

It's 40 years later, so why are some states treated differently from others, based on what was the case in 1972.

It has to do with the validity of the inference from the evidence, and whether greater scrutiny of voting law changes is needed with respect to these states with a bad reputation, as understood from the perspective on 1972.

Peter said...

"It goes without saying that racism persists

'Ken' said, "Why does this go without saying?"

A good case can be made that racism not only persists, but that some residual racism will always persist, forever and everywhere. Assuming that absolute zero is attainable (even if it could be defined) does not seem at all reasonable.

BUT, what does that have to do with voter ID?

paul a'barge said...

You need a photo id to get an abortion and murder your own unborn child.

Why should you not have to present a photo id in order to vote?

Richard Dolan said...

This case, like Grutter and others addressing affirmative action in employment, contracting and many different contexts, is struggling to balance the weight of history against the demands of current reality, to reach a state of non-discriminatory nirvana in all aspects of national life. Unlike the affirmative action cases, this one adds a healthy dose of federalism into the mix.

In trying to balance and adjust the many competing and contradictory values and interests in play, Justice O'Connor famously wrote that affirmative action would no longer be necessary in 25 years. Her bottom line thus tilted the balance towards the history end of the spectrum. Chief Justice Roberts just as famously wrote that the way to stop discriminating based on race is to stop discriminating on the basis of race (starting now), thus taking the opposite tack.

The VRA is a replay of that same debate, moved into a different but obviously related context. If this case makes it to the SCOTUS, I'd expect the approach of CJ Roberts to prevail.

Ken said...

Peter,

A good case can be made that racism not only persists, but that some residual racism will always persist, forever and everywhere.

I don't buy that racism persists "forever and everywhere". It may, though. But the case still needs to get made. It never "goes without saying". To claim something "goes without saying" is to bypass all that pesky evidence gathering and forming a coherent argument.

Assuming your conclusion, then recommending a policy decision based on your conclusion is pretty much the definition of bad logic and bad policy.

MikeR said...

I don't know if it's unconstitutional, but it is awfully stupid.

Alex said...

It goes without saying that I see racism under every rock and behind every tree. Paranoid much?

Q said...

It's 40 years later, so why are some states treated differently from others, based on what was the case in 1972.


The VRA was unconstitutional 40 years ago. Like so much done at the time, the Sacred Goal of Fighting Racism was seen as rather more important than worrying about the Constitution.

Ignorance is Bliss said...

To claim something "goes without saying" is to bypass all that pesky evidence gathering and forming a coherent argument.

Assuming your conclusion, then recommending a policy decision based on your conclusion is pretty much the definition of bad logic and bad policy.


We hold these truths to be self-evident...

Keystone said...

Elections in Chicago are more corrupt than elections in Jackson, Mississippi.