Abortion

I’m linking to this old post of mine. I’m not quite sure why.

Catholic Church shocked by abortion by 9 year old raped by stepfather

There goes Roe v. Wade. Next, Republicans will try to get rid of contraception.

It seems that Roe v. Wade is going away, completely. Abortion will now illegal in various degrees in a majority of states. This has been a goal of Republicans for years and now they have it.

Next up outlawing contraception. Or maybe getting rid of same-sex marriage. Or making it ok to discriminate due to sexual orientation. The sky’s the limit.

Here’s how Trump protects workers

The Supreme Court ruled that workers can’t bring action collectively if they have an arbitration clause in their contracts:

The Supreme Court has sharply restricted the rights of American workers to join with others to challenge their company for allegedly violating federal laws on wages, overtime pay or civil rights.

The justices by a 5-4 vote Monday agreed with Trump administration lawyers and ruled employers may require workers give up their rights to join together in complaining if they are denied overtime pay or a minimum wage.

So, if your employer underpays all their workers by $10 a week they will have to push their claim individually. Good luck with that.

Now look which side each of the political parties were on:

Obama lawyers agreed with Democratic appointees on the National Labor Relations Board that labor laws from the New Deal era gave workers the right to join together to protect themselves. They pointed to the National Labor Relations Act of 1935, which said workers may join a union or “engage in other concerted efforts” to protect themselves.

Based on that law, they said companies may not enforce arbitration clauses that bar workers from joining together to challenge a company’s policies or work rules.

By contrast, Trump administration lawyers joined with pro-business advocates in favor of binding arbitration. They relied on the Federal Arbitration Act of 1925, which said contracts that call for setting disputes through arbitration “shall be valid, irrevocable and enforceable.”

And who is it most likely to affect?

Labor law experts say that denying group claims will hurt low-wage workers in particular. They will have no practical way to challenge employers who fail to pay them overtime or a minimum wage, they said.

There’s the President, on the side of the common worker like always. As long as you define the common worker as rich business owners.

Justice Ginsburg dissented highlighting part of the NLRA:

Relevant here, §7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectivelythrough representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The conservative justices twist the words to pretend that the highlighted part can’t possibly apply to arbitration because ‘reasons’. Good old-fashioned judicial activism is alive and well.

The police are never wrong

This would seem cut and dried to me:

Here is my best distillation (based on detailed findings made by the district judge after a five-day bench trial):

In October 2010, officers were searching for a “parolee-at-large” who allegedly had been spotted bicycling in front of a suspected drug-trafficking house in suburban Los Angeles. Officers, who had no warrant to search or arrest, went to the house, announced themselves to the owner, and gained entry by threatening to force their way in. (The parolee was not there.)

Meanwhile, officers Christopher Conley and Jennifer Pederson went to “clear the backyard.” After entering the yard and checking some small metal storage boxes, the two officers came to a dilapidated wooden “shack” that (as the district court found) they could not “reasonably” have believed to be unoccupied. The shack had various signs of occupancy, and a lead officer testified that he had advised the deputies that a man named Angel lived in a shed in the yard with his pregnant girlfriend. (The district judge found that both deputies had heard this advisement, and that if they had not then they had “unreasonably failed to pay attention.”) With his gun drawn, Conley pulled open the door of the shack.

The Mendezes were resting on a futon; Angel kept a BB gun next to his bed to shoot pests. When he heard the deputies’ entry, he picked up the BB gun to move it so he could get up. (Whether the gun was “pointed at” the deputies remains disputed, but the trial judge found Mendez was moving it innocently, merely “to help him sit up.”) Conley shouted “gun,” and the deputies fired 15 bullets at the two occupants. Mendez, severely injured, exclaimed, “I didn’t know it was you guys. It was a BB gun….”

No criminal case was filed against the officers, but the courts did award the Mendezes $4 million in damages in a civil suit. The case is now at the Supreme Court to review that award. I wonder what would have happened if Angel had had a real gun and killed one of the officers?

Supreme court says no to Texas abortion restrictions

The Supreme Court has struck down abortion restrictions in Texas:

The Supreme Court on Monday struck down Texas abortion restrictions that have been widely duplicated in other states, a resounding win for abortion rights advocates in the court’s most important consideration of the controversial issue in 25 years.

Justice Anthony M. Kennedy joined the court’s liberals in the 5 to 3 decision, which said Texas’s arguments that the clinic restrictions were to protect women’s health were cover for making it more difficult to obtain an abortion.

The challenged Texas provisions required doctors who perform abortions at clinics to have admitting privileges at a nearby hospital and said that clinics must meet hospital-like standards of surgical centers.

Similar restrictions have been passed in other states, and officials say they protect patients. But the court’s majority sided with abortion providers and medical associations who said the rules are unnecessary and so expensive or hard to satisfy that they force clinics to close.

…

“The decision erodes states’ lawmaking authority to safeguard the health and safety of women and subjects more innocent life to being lost,” Texas Gov. Greg Abbott (R) said in a statement. “Texas’ goal is to protect innocent life, while ensuring the highest health and safety standards for women.”

The Post has an article that looks at that last statement:

A key study published in the journal Obstetrics & Gynecology estimated that the risk of a woman dying after childbirth was 10 times greater than after an abortion. The study estimated that between 1998 and 2005, one woman died in childbirth for every 11,000 babies born. That compares with one in 167,000 women who died of abortion complications. Doctors who perform abortions say the most common complications are not bladder issues or problems with reproductive organs — as some abortion opponents like to emphasize — but mild infection that can be easily treated.

So if Texas makes more women continue their pregnancy more women will die. Even if they just delay the abortion more women will die.

Let’s throw in some data (scroll down to tables 7 or 8):

Among the 38 areas that reported gestational age at the time of abortion for 2012 (Table 7), two-thirds (65.8%) of abortions were performed by ≤8 weeks’ gestation, and 91.4% were performed at ≤13 weeks’ gestation.

and according to here:

The risk of death associated with abortion increases with the length of pregnancy, from 0.3 for every 100,000 abortions at or before eight weeks to 6.7 per 100,000 at 18 weeks or later.

…

A first-trimester abortion is one of the safest medical procedures and carries minimal risk—less than 0.05%—of major complications that might need hospital care.

The Supreme Court easily figured out that these laws were not about the safety of women and all about restricting abortion.

No racism here

This is pretty stupid work:

The case, Foster v. Chatman, arose from the 1987 trial of Timothy T. Foster, an African-American facing the death penalty for killing Queen Madge White, an elderly white woman, when he was 18.
In notes that did not surface until decades later, prosecutors marked the names of black prospective jurors with a B and highlighted those names in green. They circled the word “black” where potential jurors had noted their race on questionnaires.

They ranked the black prospective jurors in case “it comes down to having to pick one of the black jurors,” as the prosecution’s investigator put it in a draft affidavit at the time. In the end, prosecutors struck all four black potential jurors.

…

Chief Justice John G. Roberts Jr., writing for the majority, said the prosecutors had violated a 1986 decision, Batson v. Kentucky, in which the Supreme Court ruled that race discrimination in jury selection was unconstitutional and required lawyers accused of it to provide a nondiscriminatory explanation.

…

Lanier had offered a list of 11 reasons for striking Garrett, including that she was too young.

“Yet Garrett was 34,” Roberts wrote, “and the state declined to strike eight white prospective jurors under the age of 36. Two of those white jurors served on the jury; one of those two was only 21 years old.”

Lanier also said Garrett was unfit to serve because she was divorced. But, the chief justice wrote, Lanier “declined to strike three out of the four prospective white jurors who were also divorced.”

Lanier gave eight reasons for striking a second prospective juror, Hood, including that his son was the same age as the defendant and had been convicted of a crime that was, he said, “basically the same thing that this defendant is charged with.”

Roberts called this “nonsense.”

“Hood’s son had received a 12-month suspended sentence for stealing hubcaps from a car in a mall parking lot five years earlier,” he wrote. “Foster was charged with capital murder of a 79-year-old widow after a brutal sexual assault.”

And (via here):

Still, Georgia courts had consistently rejected Foster’s claims of discrimination, even after his lawyers obtained prosecutors’ notes that revealed their focus on the black people in the jury pool. In one example, a handwritten note headed “Definite No’s” listed six people, of whom five were the remaining black prospective jurors.

The sixth person on the list was a white woman who made clear she would never impose the death penalty, according to Bright. And yet even that woman ranked behind the black jurors, he said.

Governor upset that he might be blamed

It seems there were some problems with voting in Arizona:

Maricopa County voters woke up with an election hangover Wednesday morning, and it wasn’t pretty.

Complaints about waits in lines that topped five hours in some locations, a shortage of ballots and inadequate staffing at the county’s 60 polling locations stoked anger and drew condemnation from Gov. Doug Ducey, lawmakers and national groups.

Phoenix Mayor Greg Stanton asked U.S. Attorney General Loretta Lynch to launch an investigation into what he called “a fiasco.”

That’s not good, is it Governor Ducey:

Ducey called Tuesday’s long lines “unacceptable” and laid the blame on elections officials.

As an aside, both the Governor and the election officials are Republicans (I’m sure this surprises you). Onward:

Ducey signed the state budget last year that cut the funding counties needed to conduct the election, over the protests of county officials.

The governor also called for opening the presidential primary to all voters, a factor that added to the confusion as independents showed up, only to have to argue to get a ballot. Many were given provisional ballots since they weren’t registered with a party; others said they were discouraged from getting a ballot.

Hmm, it sounds like this is really your fault Governor. Of course, it’s also the Supreme Court’s fault (via here):

Previously, Maricopa County would have needed to receive federal approval for reducing the number of polling sites, because Arizona was one of 16 states where jurisdictions with a long history of discrimination had to submit their voting changes under Section 5 of the Voting Rights Act. This type of change would very likely have been blocked since minorities make up 40 percent of Maricopa County’s population and reducing the number of polling places would have left minority voters worse off. Section 5 blocked 22 voting changes from taking effect in Arizona since the state was covered under the VRA in 1975 for discriminating against Hispanic and Native American voters.

But after the Supreme Court gutted the VRA in 2013, Arizona could make election changes without federal oversight. The long lines in Maricopa County last night were the latest example of the disastrous consequences of that decision.

My guess is that Republicans will eventually blame it all on the federal government since they didn’t step in to stop the Republicans from doing something that turned out really bad (see Flint).

Does this apply to anything?

President Obama has nominated Merrick Garland to fill the open Supreme Court position. Let’s see what Republicans have to say:

“The American people may well elect a President who decides to nominate Judge Garland for Senate consideration. The next president may also nominate someone very different,” McConnell (R-Ky.) said on Wednesday. “Either way, our view is this: Give the people a voice in the filling of this vacancy.”

House Speaker Paul D. Ryan (R-Wis.) said he fully supports that stand. “We should let the American people decide the direction of the court,” he said in a statement Wednesday.

…

“I continue to believe the Senate should not move forward with the confirmation process until the people have spoken by electing a new president,” Sen. Kelly Ayotte (R-N.H.) said in a statement.

“After the election, I look forward to considering the nominee of our new president,” Sen. Rob Portman (R-Ohio) said in a statement. “Whether the American people elect a Republican or a Democrat, I will judge his or her nominee on the merits, as I always have.”

…

“The right thing to do is to give the American people a voice in the selection of their next Supreme Court justice,” Coats said in a statement Wednesday. “The next president, with input from voters in the upcoming election, should fill the current Supreme Court vacancy.”

I have two questions here:

1. How long can a President appoint a Supreme Court Justice for? If a Justice either resigns or dies in the first year of their presidency, is the President allowed to appoint their successor or does that have to wait until the next election also? Perhaps we should amend the Constitution so that there is a special election to vote on any nomination.
2. Does this apply to any other areas? If the US is attacked, should a President wait until after the next election to respond?

The ACA endures

Well looky there, the Supreme Court ruled that subsidies to the state for the ACA are fine. It’s amazing:

Several portions of the law indicate that consumers can claim tax credits no matter where they live. No member of Congress said that subsidies would be limited, and several states said in a separate brief to the court that they had no inkling they had to set up their own exchange for their residents to get tax credits.

So, sure, the overall bill overwhelmingly implies that people should be able to get subsidies even if their state doesn’t set up their own exchange, but:

The challenge devised by die-hard opponents of the law relied on four words — ‘‘established by the state’’ — in the more than 900-page law.

So one mention perhaps implies that states without exchanges won’t get the subsidies and multiple mentions that they will (reinforced by the recollection of everyone who worked on the bill and all the states that worked with the federal government) leads Republicans to conclude the former. They must have been great students–sure I mentioned 20 times that a topic was going to be on the test, but once I forgot so it’s unfair that it was on the test.

Both sides do it

This article starts with a bit about Justice Scalia and then says this:

“While liberal justices are over all more supportive of free speech claims than conservative justices,” the study found, “the votes of both liberal and conservative justices tend to reflect their preferences toward the ideological groupings of the speaker.”

but then they get to the actual results:

The largest one, at least among members of the Supreme Court who cast more than 100 votes in free speech cases since 1953, belongs to Justice Scalia. Justice Clarence Thomas is not far behind. Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. have not cast enough votes for a reliable appraisal, but the preliminary data show a similarly significant preference for conservative speakers.

Justice Anthony M. Kennedy, the current court’s most reliable free speech vote, favored conservative speakers by a smaller but still significant margin.

The Roberts court’s more liberal members “present a more complex story,” the study found. All supported free expression more often when the speaker was liberal, but the results were statistically significant only for Justice John Paul Stevens, who retired in 2010.

In the case of Justice Stephen G. Breyer, the difference was negligible. And it is too soon to say anything empirically meaningful about Justices Sonia Sotomayor and Elena Kagan.

In other words, the conservative justices are all much more likely to vote for free speech if it’s conservative while liberals only lean towards supporting liberal speech. Look at the numbers (they are the percent of time they voted for free speech if the speaker was liberal, if the speaker was conservative, and the total votes counted; an asterisk means the difference is significant):

• Thomas      23.1*   65.4    104
• Scalia          20.7*   65.2    161
• Alito            9.1*      53.9    24
• Roberts      15.4*    64.3    27
• Kennedy   43.2*     67.7    143
• O’Connor  30.6*    50.7    190
• Breyer       40.0      38.1    87
• Souter       60.3      51.1     103
• Ginsburg  53.2      40.0    92
• Stevens     62.8*    46.9    260

You might notice that all of the conservative judges have a statistically significant difference and only one liberal judge does. You might also notice that the largest difference for a liberal judge is about 16%, while the smallest for a conservative judge is about 20% and that’s if we count O’Connor and Kennedy as conservative. If we count them as moderate, then the smallest difference for a conservative is about 39%–but both sides are the same.

Voting Rights Act

It seems that there might be a bill to strengthen the part of the Voting Rights Act that the Supreme Court got rid of:

It’s rare that you can get Reps. Jim Sensenbrenner (R-Wis.) and John Conyers (D-Mich.) to agree on much of anything. The former, after all, introduced the USA PATRIOT Act to the House, and sponsored H.R. 4437, the House-passed bill that would have made “illegal presence” of immigrants a felony, and which prompted huge protests by immigration activists across the country. Conyers, by contrast, is a liberal stalwart who has championed Medicare-for-all and a public jobs program for the unemployed.

But the two, along with Sen. Patrick Leahy (D-Vt.), are introducing legislation they co-wrote to strengthen the Voting Rights Act. The act’s “pre-clearance” process was substantially weakened by a Supreme Court case this last spring. The new bill doesn’t roll back all of that ruling, but it does expand pre-clearance and add other protections currently lacking in the act.

Ari Berman has a summary of what it does (this is just the intro to the summary, click on the link to see the full summary):

1: The legislation draws a new coverage formula for Section 4, thereby resurrecting Section 5. States with five violations of federal law to their voting changes over the past fifteen years will have to submit future election changes for federal approval.

2: The legislation strengthens Section 3 of the VRA, which has been described as the Act’s “secret weapon.”

3: The legislation mandates that jurisdictions in all fifty states have to provide notice in the local media and online of any election procedures related to redistricting changes within 180 days of a federal election and the moving of a polling place.

4: The legislation makes it easier to seek a preliminary injunction against a potentially discriminatory voting law.

5: The legislation reaffirms that the attorney general can send federal observers to monitor elections in states subject to Section 4 and expands the AG’s authority to send observers to jurisdictions with a history of discriminating against language minority groups, which includes parts of twenty-five states.

Rick Hasen, of course, something to say about the bill: his initial thoughts are here; he puts together links here.

Anything that cracks down on measures to make it harder to vote is a good thing, so I’m pleasantly surprised that Senator Sensenbrenner is co-sponsoring this (perhaps I shouldn’t be, he did help the reauthorization of the VRA pass in 2006). It remains to be seen if this can pass the House (you can see what it might be a problem here).

Scalia and ‘free speech’

The Supreme Court is deciding if Massachusetts’ buffer zone rule for clinics that perform abortions is constitutional. There is an argument to be made there, but today I only want to  look at one of Scalia’s statements:

Second, should the court reverse that 2000 decision entirely? The vote in that case was 6-to-3, with the majority ruling that in situations like those at abortion clinics, unwilling listeners have some right to be let alone.

The dissenters, however, were furious. Justice Antonin Scalia delivered a rare and blistering oral dissent when the opinion was announced. “Does the deck seem stacked?” he thundered. “You bet.”

He went on to say that “our longstanding commitment to uninhibited, robust and wide-open debate is miraculously replaced by the power of the state to protect an unheard of right to be let alone on the public streets.”

That’s certainly a defensible argument, but let’s look at another case that Scalia talks about:

One of the evolutionary provisions that I abhor is New York Times v. Sullivan. It made a very good system that you can libel public figures at will so long as somebody told you something — some reliable person — told you the lie that you then publicized to the whole world. That’s what New York Times v. Sullivan says. That may well be a good system and the people of New York state could have adopted that by law, but for the Supreme Court to say that the Constitution requires that — that’s not what the people understood when they ratified the First Amendment.

Now look at part of the argument given in that case:

Thus, we consider this case against the background of a profound national  commitment to the principle that debate on public issues should be uninhibited,  robust, and wide-open, and that it may well include vehement, caustic, and  sometimes unpleasantly sharp attacks on government and public officials.

The New York Times case was about people trying to stop desegregation. If a newspaper wrote about civil rights in a way they didn’t like and made even the smallest error, they would sue–obviously this was a tactic to stop speech hence the argument upholding saying that free speech should be uninhibited. The fact that Scalia used the exact same words, makes me think he is mocking the earlier case that he so abhors.

And then there were none

This is disheartening if expected:

A sharply divided Supreme Court decided Tuesday to allow Texas to continue enforcing abortion restrictions that opponents say have led more than a third of the state’s clinics to stop providing abortions.

The justices voted 5-4 to leave in effect a provision requiring doctors who perform abortions in clinics to have admitting privileges at a nearby hospital.

…

But a three-judge appellate panel moved quickly to overrule the judge. The appeals court said the law was in line with Supreme Court rulings that have allowed for abortion restrictions so long as they do not impose an ‘‘undue burden’’ on a woman’s ability to obtain an abortion. Writing for the appeals court, Judge Priscilla Owen noted that the Texas law would not end the procedure, only force women to drive a greater distance to obtain one.

What’s great about this if you want to outlaw all abortions is that it’s a stepping stone. If this is ok since it only makes you drive a bit more, then another law that shuts down more clinics will also be ok by the same logic–it will only be a few steps until there will be no real clinics in the state (after all it’s not that much further to drive to another state).

Not the best examples

Republicans are back to filibustering:

In a setback for the president, Republicans derailed his picks of Patricia Millett to become a judge on the US Court of Appeals for the District of Columbia Circuit and Representative Melvin Watt, Democrat of North Carolina, to lead the Federal Housing Finance Agency. The Senate voted 55-38 to end the delays against Millett and 56-42 to end the blockade against Watt — falling shy each time of the 60 votes Democrats needed to prevail.

Here’s a Republican response to the threat of the elimination of the filibuster:

No. 2 Senate GOP leader John Cornyn of Texas said he doubted Democrats would act on their threats, which they had been hinting at for days. He said if Democrats change the rules and Republicans win the White House and Senate, ‘‘Then we could confirm another Scalia, another Thomas with 51 votes,’’ a reference to conservative Supreme Court Justices Antonin Scalia and Clarence Thomas. ‘‘So I think they need to think twice, and I think they understand that.’’

Umm, Scalia was voted in 98-0 (talk about a terrible vote) and Thomas was voted in 52-48, so neither was filibustered. They both should have been, perhaps that’s what Cornyn means.

I don’t trust myself

This is great:

The free charter flight for Mitt Romney campaign volunteers seemed like an open-and-shut case for the six members of the Federal Election Commission.

A wealthy friend of Romney spent $150,000 to fly as many as 200 campaign volunteers from Utah to a fund-raising phone-a-thon in Boston.

The three Democrats on the FEC agreed with the agency’s staff that the charter appeared to violate rules limiting such “in-kind’’ gifts to $2,600 per election.

But the three Republican commissioners disagreed, saying Romney’s friend merely acted “in behalf of’’ Romney’s 2008 campaign — not the illegal “on behalf of” — and thus the flight was allowed.

With that twist of legal semantics, the case died — effectively dismissed.

I do have to agree with this Republican on the FEC:

McGahn’s opposition to disclosure is gaining popularity in conservative circles, notwithstanding the urging of the Supreme Court. McGahn contends revealing the identities of people who pay for political advertising has a chilling effect on political speech.

“It’s what do you fear more. Do you fear the potential influence that money could buy on policy, which no one has ever proven or is very attenuated? Or the ability of the incumbent politicians to know who is criticizing them and retaliate?

“I fear the government more than my fellow citizen,’’ he said, “so I come down on the side of protecting speech.’’

I certainly fear the influence of McGahn on the politics of the US. By the way, the real question is: do you trust government or big business more? The majority of the secret money doesn’t come from the likes of me, but from the rich and big business. And I trust government more than I trust big business.

If only there were some mechanism to adjust it

Tom Keane notices something:

One section was uniquely provocative: It subjected some states and a few counties to particularly tough scrutiny — called “preclearance” — if they wanted to make any changes to their voting rules. Even slight measures — moving a voting location, for instance — had to be submitted to federal authorities for approval. Moreover, the onus was on the jurisdiction to prove that the change wouldn’t affect voters on the basis of their race, color, or language. The list of “covered jurisdictions” was first drawn up in 1965. It was modified in 1970 and then again in 1975. Congress extended the law for 25 years in 1982, but didn’t change the list. The same thing happened again in 2006. So by the time the case challenging the law got to the Supreme Court, it had been 38 years since anyone had really thought about who should be precleared or not.

Preclearance is kind of a scarlet letter that proclaims one a bigot. Back in 1975, the nine states named — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia — likely deserved to be shamed. So too did the handful of other areas (ranging from the Bronx to parts of Florida to three counties in California). But are all of those jurisdictions bad today? Probably not, and that, as Chief Justice Roberts pointed out in his majority opinion, is the issue; “the Act imposes current burdens and must be justified by current needs.”

Wow, that really is pretty bad. There must be no mechanism for updating the law, obviously. Oh:

As I have written before, 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.

Like the majority opinion, Keane’s article is notable for the lack of mention of the bail-out provision–especially because he mentions something similar:

Perhaps preclearance should be applied to all 50 states, making everyone equally subject to the scarlet letter. Or perhaps a simple, self-working formula could be developed for who gets preclearance or not. Disparities in voting rates between whites and minorities of, say, 10 percent, would automatically require preclearance for a county. Bring voting rates up, and preclearance would go away.

Given that might mean that a jurisdiction might be fine one election and not the next, given that different jurisdictions might have much different voting rates (if a county that is mostly minority has voting rates of 22% for minorities and 22% for whites, is that better or worse than a county that has voting rates of 70% for minorities and 85% for whites), given lots of other possible problems to his simple formula this particular formula might not work. Hmm, maybe something like:

Shelby County, Alabama, was on the list in the 60s. And it’s still on the list now. But that doesn’t mean the list is static.  Quite the contrary: change was built into coverage from the get-go.

On the one hand, the Voting Rights Act lets federal courts add areas with real race-and-voting problems to the list. And it also lets a federal court take jurisdictions off of the list, once they have a clean record for 10 years.  These provisions are known as “bail in” and “bail out.”

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.

More voting

There are a bunch of articles out there noting the Judge Roberts was probably wrong when he asked:

“Do you know which state has the worst ratio of white voter turnout to African-American voter turnout?” Roberts asked Donald Verrilli Jr., solicitor general for the Department of Justice, during Wednesday’s arguments.

“I do not know that,” Verrilli answered.

“Massachusetts,” Roberts responded, adding that even Mississippi has a narrower gap.

Roberts later asked if Verrilli knew which state has the greatest disparity in registration. Again, Roberts said it was Massachusetts.

The problem is, Roberts is woefully wrong on those points, according to Massachusetts Secretary of State William F. Galvin, who on Thursday branded Roberts’s assertion a slur and made a declaration of his own. “I’m calling him out,” Galvin said.

You can go here to find the actual numbers (I looked at the table: Reported Voting and Registration by Sex, Race and Hispanic Origin, for States: November 2010), although 2008 is better since that is the last Presidential election that has this information. If you look at the data it does seem that Roberts is wrong (it’s difficult to prove this since Roberts doesn’t say what data he is using).

There are a few things to note here:

1. Massachusetts has had its problems with racism and voting, this shouldn’t be ignored.
2. At this point in time, it seems there are more problems with Asians and Hispanic voting–the percent of citizens voting in the 2008 election were (the alone part is there because many people listed more than one race, that means these are not perfect statistics): white alone–64.4%; black alone–64.7%; Asian alone–47.6%; Hispanic–49.9%. The numbers aren’t out for 2012 (or I can’t find them), so it’s hard to say if this has changed (the percent of people who voted who were Hispanic was about 10% and 3% for Asians, but it’s difficult to get the percent of voting age US citizens who are Hispanic or Asian–from here, it seems to be 9.7% and 3.6%).
3. It seems to me to be much more important that Roberts has a history of trying to get rid of the Voting Rights Act.

As an aside to that last point, note that the article links to this which negates one of the conservative justices arguments:

But in 2009, when an earlier challenge to Section 5 of the Voting Rights Act reached the Supreme Court, Roberts sounded a lot like Reagan during oral arguments. He echoed the late president’s view that Section 5 represented an unconscionable punishment for the South’s past sins. “Congress can impose this disparate treatment forever because of the history in the South?” Roberts asked the government attorney defending the law.

In his subsequent opinion in the 2009 VRA case, in which the court seemed close to striking down Section 5, Roberts wrote that the government had made the bailout provision “all but a nullity.” In the three years since that verdict, however, more than 100 jurisdictions have been allowed to bail out of Section 5—more than twice as many in the nearly three decades before. It’s not even that expensive to bail out; the usual cost is $5,000. The reason Shelby County hasn’t been able to take advantage of the bailout provision is that in 2006, county election officials redistricted the only black city council member in one of the county’s towns out of a job.

So, the Act has a built-in provision to wind down–as regions show they no longer discriminate they can petition to bail out.

Voting

The Supreme Court is looking at the Voting Rights Act. As usual, Scalia makes some stupid statements:

The problem here, however, is suggested by the comment I made earlier, that the initial enactment of this legislation in a — in a time when the need for it was so much more abundantly clear was — in the Senate, there — it was double-digits against it. And that was only a 5-year term.
Then, it is reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it.
And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.
I don’t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution. You have to show, when you are treating different States differently, that there’s a good reason for it.
That’s the — that’s the concern that those of us who — who have some questions about this statute have. It’s — it’s a concern that this is not the kind of a question you can leave to Congress. There are certain districts in the House that are black districts by law just about now. And even the Virginia Senators, they have no interest in voting against this. The State government is not their government, and they are going to lose — they are going to lose votes if they do not reenact the Voting Rights Act.

Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?

There are a couple stupid statements in this argument. First that being able to vote is a ‘racial entitlement’, I hope nothing needs to be said here. Second that a unanimous vote somehow shows that there’s a problem–perhaps in the past some people voted against it because they didn’t think discrimination was bad (I would think this would be obvious since some states were practicing segregation), but now everybody thinks it is? That can’t be it according to Scalia, it must be because of some kind of intimidation.

As noted here, I find it interesting that the Court (which would really be the conservative members) found that reporters who no longer phoned people to interview them had no standing:

to bring a constitutional challenge to the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008, a law that authorizes dragnet spying on US persons even absent identification of specific targets. (Another constitutional challenge to the law, Jewel v. NSA, is still winding its way through the courts.)

but that those same judges seem to no problem with Shelby County, AL having standing to challenge the formula of the Voting Right Act despite the fact that:

If Congress were to write a formula that looked to the number of successful Section 2 suits per million residents, Alabama would be the number one State on the list.
If you factor in unpublished Section 2 suits, Alabama would be the number two State on the list. If you use the number of Section 5 enforcement actions, Alabama would again be the number two State on the list.
I mean, you’re objecting to a formula, but under any formula that Congress could devise, it would capture Alabama.

I also like this comment by Justice Sotomayor in response the attorney arguing for Shelby County saying the law should not apply to the county any more because there is no longer any problems with registering voters:

Counsel, the reason Section 5 was created was because States were moving faster than litigation permitted to catch the new forms of discriminatory practices that were being developed. As the courts struck down one form, the States would find another. And basically, Justice Ginsburg calls it secondary. I don’t know that I’d call anything secondary or primary. Discrimination is discrimination.
And what Congress said is it continues, not in terms of voter numbers, but in terms of examples of other ways to disenfranchise voters, like moving a voting booth from a convenient location for all voters to a place that historically has been known for discrimination.

The consensus seems to be that the Court will get rid of at least a major part of the act–it’s not like voting is a right, right?

Alito, Repulican justice

Well then, here’s Supreme Court Justice Samuel Alito:

His comments to the overwhelmingly conservative and Republican crowd were part of his broader analysis of arguments put forth by the Obama administration in recent years that Alito said would curtail individual freedoms in favor of stronger federal power.

He said opponents of the 5-to-4 decision have conducted an effective, but misleading, public relations campaign by stressing that the court extended free speech rights to corporations.

But Alito rattled off the names of the nation’s leading newspapers and television networks, all owned by corporations and possessing acknowledged rights to print and say what they wish about politics and government.

‘‘The question is whether speech that goes to the very heart of government should be limited to certain preferred corporations; namely, media corporations,’’ he said. ‘‘Surely the idea that the First Amendment protects only certain privileged voices should be disturbing to anybody who believes in free speech.’’

Hmm, sounds like he’s trying to mislead people. The main problem is money–this Supreme Court has said that money is free speech which means Bill Gates has about a billion more free speech rights than I do. Also, you would think a Federalist Judge wouldn’t say that inventing a right is ok just because not having it would cause problems. If corportations don’t have free speech rights then they can be given them by Congress. Here’s more.

Taken together, Alito said, the views put forth by the government begin to suggest a vision of society ‘‘in which the federal government towers over people.’’ He noted that in several cases, not a single justice endorsed the administration’s arguments.

It was not the first time Alito has taken on critics of the outcome in the Citizens United case. At President Obama’s State of the Union address soon after the court’s ruling in January 2010, the president said the court ‘‘reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections.’’

Alito, sitting with five other justices, was seen to mouth, ‘‘Not true.’’

He also humorously recounted his experience at Yale Law School in the early 1970s when he was a student of constitutional law professor Charles Reich, who by then was more interested in American counterculture than the law.

He quoted from Reich’s bestselling ‘‘The Greening of America,’’ in which the author painted a frightening picture of a disintegrating society and called the era a ‘‘moment of utmost sterility, darkest night, most extreme peril.’’

Here, Alito paused and, to the delight of a crowd dismayed by Obama’s reelection, added, ‘‘So our current situation is nothing new.’’

It’s good to know that Alito thinks just like a partisan conservative Republican, I’m sure he only decides things on the merits of the case. And I hope Alito noticed that corporations spent a huge amount of money this election season.