“SCOTUS Sanctioned Racism?”: Conservative Justices Attack The Voting Rights Act
As a statue paying tribute to civil rights pioneer Rosa Parks was unveiled in Washington, D.C., the Supreme Court heard arguments in the case of Shelby County v. Holder, which will decide the Constitutionality of the Voting Rights Act of 1965 that bears Ms. Parks’ name.
Section 5 of the VRA requires election officials in selected states and regions, mostly in the South, to pre-clear any changes to voting laws. This provision has been called the “cornerstone of civil rights law” in America.
“Is it the government’s submission that citizens in the South are more racist than citizens in the North?” asked Supreme Court Chief Justice John Roberts.
Solicitor General Donald Verrilli said no.
Roberts noted that Massachusetts had the lowest turnout rate of black voters while Mississippi had the highest. He and all of the conservative justices on the court expressed skepticism of the continued relevance of a law that was originally intended to be an emergency accommodation.
The Voting Rights Act was renewed for 25 years by a Republican Congress and signed by George W. Bush in 2006. But right-wing organizations and donors have waged a two-decade campaign to destroy Section 5.
The law was deemed Constitutional in 1999, before Roberts and Justice Samuel Alito joined the Court. Justice Clarence Thomas has previously called Section 5 unconstitutional and Justice Antonin Scalia’s antipathy to the law was clear to all in attendance.
Scalia called Section 5 a “perpetuation of racial entitlement” and suggested that Congress could never be convinced to let the law lapse. “They’re going to lose votes if they vote against the Voting Rights Act. Even the name is wonderful.”
Justice Sonia Sotomayor twice asked Scalia, “Do you think Section 5 was voted for because it was a racial entitlement?” He did not answer either time.
Experts believe that Justice Anthony Kennedy will be the deciding vote on the case. He appeared extremely troubled by the idea of pre-clearance, saying it put some states under the ”trusteeship of the United States government.”
“Times change,” Kennedy said at one point.
“Kennedy asked hard questions — that’s his job,” Myrna Perez, a senior counsel with the Brennan Center, told the Washington Post‘s Greg Sargent. “But the questions didn’t signal the law’s demise.”
Verrilli pointed out that jurisdictions can “bail out” of the pre-clearance requirement once they’ve demonstrated a 10-year discrimination-free record — nearly 250 of the 12,000 state, county and local governments covered by the law have bailed out.
Justice Elena Kagan noted that the covered jurisdictions hold 25 percent of the U.S. population, but account for 56 percent of voting-rights lawsuits.
Sotomayor asked Bert Rein, the lawyer representing Shelby County, Alabama, ”Why would we vote in favor of your county, whose enforcement record is the epitome of the reasons that cause this law to be passed in the first place?”
In his brief, Rein argued that conditions that made the law necessary no longer exist.
The Nation‘s Ari Berman, who was at the hearing, noted that the rash of legislative attempts to restrict voting rights since 2010, which he’s called the “GOP’s War on Voting,” never came up during the arguments.
By: Jason Sattler, The National Memo, February 27, 2013
“If You Can’t Beat’em, Change The Rules”: Georgia Republicans Seek Repeal Of The 17th Amendment
In the latest example of the GOP’s selective reverence for the Constitution, six Georgia Republicans are trying to end the election of U.S. senators by popular vote — just as a new poll shows that the GOP’s footing in the state’s upcoming Senate election is less secure than previously thought.
The Douglas County Sentinel reports that state representatives Dustin Hightower, Mike Dudgeon, Buzz Brockway, Josh Clark, Kevin Cooke, and Delvis Dutton — all Republicans — have introduced a resolution to repeal the 17th Amendment to the U.S. Constitution. The 17th Amendment, which was adopted in 1913, mandated that senators be elected by popular vote; before its passage, senators were selected by state legislatures.
Cooke, who authored the resolution, told the Sentinel “It’s a way we would again have our voice heard in the federal government, a way that doesn’t exist now.”
“This isn’t an idea of mine,” he added. “This was what James Madison was writing. This would be a restoration of the Constitution, about how government is supposed to work.”
Successfully repealing the amendment would require two-thirds approval by both houses of Congress, followed by ratification by at least 38 states — giving the Georgia lawmakers next to no chance of accomplishing their goal. After all, most voters would prefer to keep the power to elect their own representatives — especially considering the pervasive corruption that has characterized the election process within state legislatures.
Still, the timing of the move is interesting. Coincidentally, on the same day that the Sentinel reported on the Republicans’ repeal plans, Public Policy Polling released a new poll showing that the GOP is in real danger of losing another Senate seat in 2014.
Despite the fact that Democrats have not won a major election in Georgia in 13 years, PPP finds that the race for the seat currently held by retiring Republican Saxby Chambliss is a complete toss-up. Democratic congressman John Barrow trails five likely Republican candidates — U.S. Representatives Paul Broun, Phil Gingrey, Tom Price, and Jack Kingston, and right-wing activist Karen Handel — by an average of just 0.4 percent.
If former senator Max Cleland (D) jumped into the race, he’d start out with a lead over all five Republicans.
Republicans should be deeply troubled by their weak numbers in Georgia, ostensibly a deep-red state. If they lose Chambliss’ seat, it would all but end their hopes of capturing a Senate majority in 2014. The six Georgia lawmakers’ solution to the problem appears to be taking the decision out of voters’ hands, which fits a broad pattern of Republican behavior since the 2012 election. Once again, the party’s prevailing strategy appears to be “If you can’t beat them, change the rules.”
By: Henry Decker, The National Memo, February 20, 2013
“The Party Of Ideas, From 20 Years Ago”: Which 1990s Era Bad Idea Will The GOP Pull Out Of Its Policy Posterior Next?
I wrote in my column a few weeks back that conservatives seem stuck in the 1990s. The NRA swaggers like the organization that could claim credit for taking down so many Democratic members of Congress … nearly two decades ago; House Republicans—including some from the class of 1994, apparently trying to relive their, uh, inglory years—are openly aching for a government shutdown; some even want an impeachment. It almost begs the question: What hoary policy proposal will they summon out of the Gingrich years next? The answer is apparently the Balanced Budget Amendment.
My old bloleague Scott Galupo, now at The American Conservative, flags the news that the GOP is going to try to write a balanced budget into the Constitution, including a supermajority requirement for raising taxes and raising the debt ceiling. Scott writes:
Just as problematic is the institutional folly that the BBA represents. Instead of reasserting democratic control over fiscal policy, as had been the plan until five minutes ago, a BBA regime would take us in the opposite direction – toward newly empowered judges. The literature on how a BBA would invite judicial interference into fiscal policy is vast — for a taste, see Ed Meese, Walter Dellinger , and Peter H. Schuck – and, to my lights, dispositive. But that’s not all. The executive branch, too, would potentially gain new authority over spending — which the Goldwater Institute, strangely, sees as a feature rather than a bug.
And David Frum points out perhaps the biggest problem with the scheme:
A cap on spending, especially one at 18 percent, also means recessions will be turning into depressions. The automatic stabilizers that have induced such deep deficits since 2008, especially unemployment insurance, would be capped under such a plan. Without that spending to prop up demand, expect the boom and bust cycle to get worse.
Even former U.S. News-er Jim Pethokoukis questions the realism of this idea. And you know something extraordinary is going on if I’m approvingly citing Jimmy P.
So which 1990s era bad idea will the GOP pull out of its policy posterior next? I suppose they have to wait until the Defense of Marriage Act has actually been overturned or repealed before they try to revive it. Maybe a flag burning amendment?
By: Robert Schlesinger, U. S. News and World Report, February 11, 2013
“A Line In The Sand”: The NRA Won’t Support Arizona’s New Gun Bill
Arizona is a place where you can get a family photograph with Santa holding an AK-47, where state lawmakers point pink pistols at reporters, and where men tote AR-15s to political protests. And if one state representative gets his way, gun-loving Arizonans won’t have to worry about pesky federal gun control laws, because it will be illegal to enforce them.
Republican state Rep. Steve Smith proposed a bill last week that would prohibit public officials in the state from following any federal gun laws or regulations, fearing an effort by the Obama administration to impose harsh new restrictions on firearms. That means no background checks, no restrictions on automatic weapons or grenade launchers, and no prohibition on sale to the mentally ill, unless the state enacts its own restrictions, none of which are laid out in Smith’s bill.
While there is no penalty specified for state and local officials who follow federal law, federal judges or law enforcement agents would face felony charges punishable by up to a year in state prison. “Here’s a line in the sand: Thanks, but no thanks. Stay out with your federal regulations you’re going to impose on us,” Smith said.
HB 2291 would almost certainly be unconstitutional, as federal law trumps state law, and Smith acknowledged that there would probably be legal challenges that would have to be worked out in the courts. But he appears to be trying to get around this problem by making his legislation apply only to firearms that are manufactured in and never leave the state of Arizona, presumably in an attempt to thwart the Commerce Clause, which allows Congress to regulate interstate trade. Still, the Supreme Court has not been sympathetic to similar arguments.
And the Constitution isn’t Smith’s only problem; he’s catching some friendly fire too. Todd Rathner, an Arizona resident who sits on the board of the National Rifle Association, told the Capitol News Service that he doesn’t like the bill because of what it would do to gun dealers, who must receive federal licenses and comply with federal regulations.
“I worry about putting federal firearms licensees in the middle of a fight between us and the federal government,” he said. “It puts them between a rock and a hard place because they worry about committing a federal crime or a state crime.”
Indeed, Smith’s law specifies that firearms dealers would be barred from following the regulations mandated by the federal government to maintain their license. Still, Rathner said of Smith’s proposal, “I like the message he’s trying to send.”
Arizona isn’t the only state considering what amounts to a lite form of secession over guns. In Mississippi, Gov. Phil Bryant and state House Speaker Philip Gunn have both said they intend to block any new Obama executive orders on gun control. South Carolina lawmakers have made similar moves as well. But Arizona’s law goes much further, by not only restricting new regulations but also all existing ones, targeting “any act, law, statute, rule or regulation” from Washington on guns.
Also, keep in mind that the NRA’s objection to the legislation is not that it is unconstitutional or that it might make it easier for criminals to acquire weapons, but that it would hurt firearms dealers. If Smith rewrote the law to exempt dealers, one wonders if the NRA would be OK with the rest of it.
By: Alex Seitz-Wald, Salon, January 23, 2013
“Nothing Short Of Horrifying”: Here A Gun, There A Gun, Everywhere A Gun
As Jaime and I noted yesterday, many Democratic politicians feel the need to preface any discussion of guns with an assurance that they, too, own guns and love to shoot, as though that were the price of admission to a debate on the topic. But what you seldom hear is anyone, politician or otherwise, say, “I don’t own a gun and I don’t ever intend to” as a statement of identity, defining a perspective that carries moral weight equal to that of gun owners. So it was good to see Josh Marshall, in a thoughtful post, say, “Well, I want to be part of this debate too. I’m not a gun owner and, as I think as is the case for the more than half the people in the country who also aren’t gun owners, that means that for me guns are alien. And I have my own set of rights not to have gun culture run roughshod over me.” Let me tell you my perspective on this, and offer some thoughts on the question of what sort of a society we want to have when it comes to the question of guns. Because there are two radically different visions that are clashing here.
For the record, I, too, am not a gun owner (you’re shocked to learn this, I know). I took riflery at camp as a kid, shooting a .22 at paper targets (and when you achieved each new level of marksmanship, you got a certificate from the NRA!), and I’ve held unloaded guns a few times. I understand the attraction of guns. They give you a feeling of power and potency, and they’re fun to shoot, which is why every little boy loves playing with toy guns. But in the town where I grew up, you never saw a gun that wasn’t in a cop’s holster. If any of my classmates’ parents had them (and I’m sure some did), they never mentioned it, and my own parents would sooner have adopted a pack of hyenas than brought a gun into our home. As far as that community was concerned, the relative absence of guns was one of the things that made it a nice place to live. It wasn’t because everyone got together and took a vote on it, but that absence was nevertheless an expression of the community’s collective will.
I’m sure that many gun advocates would hear that and say, “Don’t you realize how vulnerable you all were? You should have been armed!” But the truth is we weren’t vulnerable (crime was low; I have a vague memory of one murder that happened during my entire childhood but I could be imagining it), and although as kids we always complained that the town was boring, everyone seemed pretty happy with the security situation. And if one day, a few of the town’s citizens started letting everyone know that they were now carrying firearms when they were down at the drugstore or the bank, it wouldn’t have made anyone feel safer. Just the opposite, in fact. It would have changed everything for the worse.
What I’m getting at is that one of the things that makes a society work is that people have rights that are protected in the law, but they also exercise those rights with consideration for the society’s other members. For instance, we have a strong commitment to freedom of expression, such that many things that would be deemed obscene and get you tossed in jail in other countries are tolerated here. So if I want do a performance art piece that involves lots of cursing and tossing about bodily fluids, I can do it. But I’m not going to do it on the sidewalk in front of your house during dinner time, not because I don’t have the right, but because that would make me an asshole. In the exercising of my rights, I’d be changing the conditions of your existence, even for a brief time, in a way that you’d find unpleasant. So because I value having a society where we all live together, I’ll choose to find a theater to put on my performance, and you can choose to come see it or not. In the same way, if you choose to have a gun in your home because you think it protects you, that’s your right. I’m going to choose not to let my kid come play with your kid at your house, and we can all get along.
According to the Constitution, you have a right to own a gun. I’ll be honest and say that I wish it weren’t so; the fantasies the most extreme gun advocates notwithstanding, our liberty is protected by our laws and institutions, not by our ability to wage war on our government. Canadians and Britons and French people aren’t any less free than we are because they are less able to start killing cops and soldiers when they decide the time for insurrection has come. Nevertheless, that basic right exists and it isn’t going to be taken away. But the rest of us should also be able to say that there are limits to how far your exercising that right should be allowed to change the rest of our lives, and if necessary the law should enforce those limits.
As I’ve written before, the goal of many gun advocates, particularly those who promote concealed carry, is that we make it so as many people as possible take as many guns as possible into as many places as possible. That’s been the focus of their legislative efforts in recent years, not only passing concealed carry laws nearly everywhere, but also passing laws to make you able to take guns into bars, schools, government buildings, houses of worship, and so on, and also advocating for laws that would let you take your guns to communities where it would be otherwise illegal to carry them. Which would mean that your right to carry your gun trumps the right of everyone else to say, this is a place where we’ve decided we don’t want people bringing guns.
Is it possible that on my next visit to the local coffee place, a madman might come and shoot the place up? Yes, it’s possible. And is it possible that if half the patrons were armed, one of them might be able to take him down and limit the number of people he killed? Yes, it’s possible. It’s also possible that I’ll win the next Powerball. But if holding out that infinitesimal possibility means that every time I go down for a coffee, I’m entering a place full of guns, it’s not a price I’m willing to pay. That’s the decision I’ve made, and it’s the decision that the other people in my community have made as well.
But gun advocates want to create a society governed by fear, or at the very least, make sure that everyone feels the same fear they feel. “An armed society is a polite society,” they like to say, and it’s polite because we’re all terrified of each other. They genuinely believe that that the price of safety is that there should be no place where guns, and the fear and violence they embody, are not present. Not your home, not your kids’ school, not your supermarket, not your church, no place. But for many of us—probably for most of us—that vision of society is nothing short of horrifying.
By: Paul Waldman, Contributing Editor, The American Prospect, January 18, 2013
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