Voting rights and marriage

The Supreme Court continues its streak of big rulings. On the plus side, it ruled that DOMA is unconstitutional and it declined to rule on a lower court ruling on California’s proposition 8, which means that same-sex marriage is now legal in California.

On the negative side it ruled that part of the Voting Rights Act is unconstitutional because:

The court majority said the criteria for picking states and other jurisdictions are based on decades-old data, and the suspect practices that prompted the law no longer exist. Literacy tests have been banned for 40 years. Voter registration and turnout in the nine states have increased dramatically. And African-Americans have been elected in record numbers to political office, including the presidency. The formula used for identifying states has “no logical relation to the present day,” the court majority said.

“Today the nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were,” Chief Justice John Roberts wrote in the opinion. He was joined by the four other conservative-leaning justices – Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito.

What makes this interesting?

This stale formula is not the coverage formula actually in the law.  The formula started with 1960s and 1970s registration and turnout figures, locating the broken democracies connected to the worst discrimination.  But it did not end there.  It allowed any jurisdiction that had demonstrated consistent improvement in minority opportunities, without backsliding, to “bail out” of coverage.

As I have writtenbefore, this bail-out provision — and a companion “bail in” section roping intentional wrongdoers into a preclearance-like regime — connected the old problem to present circumstances.  Any jurisdiction not covered in 2006 was either never broken or was broken but healed.  Which means that any jurisdiction covered in 2006 was either healed but didn’t overly mind the costs of preclearance … or was not sufficiently healed.  The decision to re-up these jurisdictions in 2006 was emphatically a determination connected to 2006 information.

It is odd that bail-out — the logical relation that Congress did establish to connect forty-year-old facts to the present day — is all but absent from the majority’s decision.  It was mentioned three times at oral argument, but not by any Justice.  In today’s opinion, the Chief Justice mentioned it briefly in the course of reviewing the procedural history — including a review of the Court’s 2009 decision in NAMUDNO v. Holder that was all about bail-out.  But even though it should have been top of mind, there is no attempt in the substance of the opinion to confront bail-out as the living organism within the coverage formula, contracting coverage to suit present conditions.

Kevin Drum compares two Supreme Court rulings and notes:

So here’s your nickel summary. If a law is passed on a party-line vote, has no justification in the historical record, and is highly likely to harm black voting, that’s OK as long as the legislature in question can whomp up some kind of neutral-sounding justification. Judicial restraint is the order of the day. But if a law is passed by unanimous vote, is based on a power given to Congress with no strings attached, and is likely to protect black voting, that’s prohibited unless the Supreme Court can be persuaded that Congress’s approach is one they approve of. Judicial restraint is out the window. Welcome to the 21st century.

Now go back to Robert’s argument that “Literacy tests have been banned for 40 years”. According to their decision in  Crawford vs. Marion County Election Board, it seems that this court would rule that literacy tests are ok. Also, remember that this case was brought by Shelby County, Alabama and that Alabama has shown that it needs oversight when it comes to voting.

1 Comment (+add yours?)

  1. Trackback: Voting Rights Act | Petunias

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