“And So It Begins”: Republicans Plod Full Steam Ahead To Implement Voter Suppression Plans
In the wake of this morning’s Supreme Court ruling on the Voting Rights Act, it stood to reason that Republican policymakers, especially in the South, would be pleased. After all, despite generations of institutional racism and systemic discrimination, these officials have wanted to curtail voting rights without the Justice Department’s interference for a while.
But exactly how long did it take before we learned of GOP policymakers acting on that satisfaction? About an hour after the ruling was announced.
Just hours after the Supreme Court handed down a ruling that guts parts of the Voting Rights Act, Texas is moving forward with a controversial voter ID law that state Attorney General Greg Abbott hopes to implement right away.
“With today’s decision, the state’s voter ID law will take effect immediately,” Abbott said in a statement to the Dallas Morning News. “Redistricting maps passed by the Legislature may also take effect without approval from the federal government.”
The Texas law requires voters to show photo identification to vote — a measure that was blocked by the Justice Department, arguing the law could discriminate against racial minorities. At the time, Attorney General Eric Holder called the law a “poll tax.”
Holder was right, but according to the Supreme Court majority, that no longer matters.
What’s more, it’s not just Texas. My Maddow Show colleague Tricia McKinney found all kinds of related examples, with officials who seemed almost giddy by the prospect of acting on voting rights without fear of Justice Department intervention.
There was this AP story out of Mississippi …
Mississippi Republican officials are applauding Tuesday’s U.S. Supreme Court ruling that will allow the state’s voter identification law to take effect without federal approval.
… and this one out of North Carolina* …
Voter identification legislation in North Carolina will pick up steam again now that the U.S. Supreme Court has struck down part of the Voting Rights Act, a key General Assembly leader said Tuesday.
… and this one out of South Carolina …
S.C. Attorney General Alan Wilson said the Supreme Court ruling is a victory over “an extraordinary intrusion into state sovereignty in certain states, including South Carolina.” He said great strides had been made over time, making the preclearance requirement obsolete.
“Today’s decision means the voting rights of all citizens will continue to be protected under the Voting Rights Act without requiring a different formula for states wishing to implement reasonable election reforms, such as voter ID laws similar to South Carolina’s,” Wilson said. “This is a victory for all voters as all states can now act equally without some having to ask for permission or being required to jump through the extraordinary hoops demanded by federal bureaucracy.”
… and in Virginia, state Senate Majority Leader Tommy Norment (R) wants folks to know that if the commonwealth approves voting restrictions, don’t worry, you can still sue.
“Voter discrimination has no place in the Commonwealth and will not be tolerated by members of the Senate of Virginia. As every Virginia voter who believes a voting law or redistricting line to be discriminatory retains the ability to bring a court challenge, protections against voter discrimination remain intact despite the Supreme Court’s decision on the Voting Rights Act.”
The “war on voting” was relentless in 2011 and 2012, and got off to an aggressive start in 2013. In the coming months, it’s going to get much worse.
*updated
By: Steve Benen, The Maddow Blog, June 25, 2013
“In Need Of A Constitutional Rationale”: Supreme Court Judicial Activism At Its Worst, Because They Felt Like It
There’s something about the Supreme Court’s ruling in Shelby that’s bothered me all day. It’s probably unimportant — Jonathan Adler, feel free to jump in and set me straight — but as I read the ruling (pdf) this morning, I was looking for something specific: why the court majority considers Sec. 4 of the Voting Rights Act unconstitutional.
I’m not an attorney, so I’ll concede my background is limited, but in the rulings I’ve read striking down federal laws, there’s some kind of explanation as to the part of the Constitution the law ostensibly contradicts. A statute violates the First Amendment, or the Commerce Clause, or the Due Process clause, etc., and is therefore unlawful.
So on what grounds, exactly, did the court find Sec. 4 of the VRA unconstitutional? I have no idea.
Assuming I’d missed something important, I asked the Constitutional Accountability Center’s David Gans to help me out. He told me:
“Your question highlights a fundamental flaw in Chief Justice Roberts’ majority opinion in Shelby County v. Holder. The Court strikes down a core provision of the Voting Rights Act as unconstitutional without ever explaining what provision of the Constitution commands this result. Chief Justice Roberts’ opinion for the conservative majority argued that the Voting Rights Act provision was inconsistent with the ‘letter and spirit of the Constitution,’ but he never really explained why.
“His majority opinion emphasized that the Voting Rights Act diminished the sovereignty of states, ignoring that Fifteenth Amendment expressly gives to Congress broad power to prevent all forms of racial discrimination in voting by the states. As Justice Ginsburg’s powerful dissent demonstrates, the Court’s opinion cannot be squared with the text, history, and meaning of the Fifteenth Amendment.”
Judicial restraint is often a rather amorphous concept, which sometimes means different things to different people. But in this case we have a piece of civil-rights legislation that was approved by the people’s representatives, and then re-approved with large majorities several times. It was signed into law by an elected president, and then reauthorized to great fanfare by subsequent presidents of both parties. It’s been subjected to judicial scrutiny over the course of several decades, and a judicial precedent has been set: the Voting Rights Act is legal.
Or put another way, when federal law is endorsed by the House, the Senate, the president, and the public, and it’s consistent with decades of Supreme Court precedent, a court majority probably ought to have a very good reason for tossing all of that aside.
But in Shelby, five conservative justices gutted the Voting Rights Act anyway, deeming it inconsistent with the Constitution because, well, they said so. These jurists said the same law used to be perfectly constitutional, but somehow morphed into being unconstitutional without anyone noticing, and without violating anything specific in the Constitution itself.
I’d argue this is the opposite of restraint; it’s activism. The justices decided to substitute their judgment for the people’s and their elected lawmakers, because they felt like it.
By: Steve Benen, The Maddow Blog, June 25, 2013
“Diversity Is A Faddish Theory”: According To Clarence Thomas, Affirmative Action Is Just Like Segregation
Today, the Supreme Court sent the University of Texas’ affirmative action program back for a lower court for review by a vote of 7-1.
Justice Clarence Thomas concurred in that decision but also wrote a scathing concurring opinion saying he would have rejected Texas’ affirmative action program outright as unconstitutional.
In the opinion, which no other justice joined, Thomas called the idea that racial diversity at colleges improves education a “faddish theory.”
“As should be obvious,” wrote Thomas, “there is nothing ‘pressing’ or ‘necessary’ about obtaining whatever educational benefits may flow from racial diversity.”
Thomas repeatedly compared arguments for affirmative action in college admissions today to arguments for segregation in the 1950s and before. Here’s Thomas:
It is also noteworthy that, in our desegregation cases, we rejected arguments that are virtually identical to those advanced by the University today. The University asserts, for instance, that the diversity obtained through its discriminatory admissions program prepares its students to become leaders in a diverse society… The segregationists likewise defended segregation on the ground that it provided more leadership opportunities for blacks…
There is no principled distinction between the University’s assertion that diversity yields educational benefits and the segregationists’ assertion that segregation yielded those same benefits.
He went on to associate his view with the arguments made by the plaintiffs in Brown v. Board of Education, the 1955 decission that prohibited racial segregation in public schools:
My view of the Constitution is the one advanced by the plaintiffs in Brown: “[N]o State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.”… The Constitution does not pander to faddish theories about whether race mixing is in the public interest. The Equal Protection Clause strips States of all authority to use race as a factor in providing education. All applicants must be treated equally under the law, and no benefit in the eye of the beholder can justify racial discrimination.
Thomas also wrote that universities’ arguments about promoting diversity are canards and their real goal with affirmative action is to help black and Hispanic students—but that they’re not actually helping.
He wrote that “discrimination is never benign” and “the University’s professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now denounced arguments of slaveholders and segregationists.”
Thomas made two arguments that affirmative action hurts black and Hispanic students: It leads to them being admitted to schools where they have, on average, significantly lower SAT scores than white and Asian students; and it creates an impression (both internal and external) that their admissions are not based on merit.
Given the high bar that Thomas places for allowing any public policy that discriminates based on race, this policy analysis wouldn’t matter for the constitutionality of the Texas program.
By: Josh Barro, Business Insider, June 24, 2013
“The Right To Police Indifference”: American Citizens, Especially The Marginalized, Have No Legal Right To Police Protection
When you call 911 in an emergency, the police don’t have to respond to your call.
If someone breaks into your house or your partner threatens to hurt you, the police don’t have to respond. If you report a neighbor’s continual slashing of your tires, the cops can ignore your calls. If a cross burns in your front yard, no one from the precinct must investigate. Despite all talk of “taxpayer dollars,” your crisis is completely optional to law enforcement, even in the worst of circumstances. The public can protest and bewail this seeming governmental indifference, but no citizen is legally entitled to police protection.
Police indifference is the under-examined tragedy of the Cleveland kidnappings, in which Ariel Castro allegedly confined and raped three women for a decade in a nondescript house in a poor neighborhood. Neighbors attest to calling the police on several occasions. They recalled seeing naked girls in Castro’s yard leashed like dogs. They also saw women beating on closed windows. As long as the neighbors are relaying things accurately — and they might not be — it seems the police either made cursory glances or failed to show up at all.
But here’s the thing: According to a Supreme Court case, Castle Rock v. Gonzales, police have no legal obligation to respond to anyone’s calls, even in matters of life and death.
On June 22, 1999 in Castle Rock, Colo., Jessica Gonzales’ three daughters were abducted from her yard at 5:15 p.m. by her estranged husband, Simon. The couple had begun divorce proceedings, and Simon violated a restraining order by taking the girls outside of his specified visitation hours. Unable to locate Simon and the girls, Jessica called the local police at 7:30 p.m., 8:30 p.m., 10:10 p.m., and 12:15 a.m., following up with a visit to the station at 12:40 a.m. At 3:20 a.m., Simon appeared at the police station brandishing a gun, resulting in a fatal shootout. When the police checked his truck, they found the bodies of the three daughters in the back.
The police ignored all of Jessica’s calls and her visit to the station. Because Simon was allowed to visit the children, the police saw no need for action, even though his “visit” violated the restraining order. The police, Jessica recalled, felt that “he’s their father. It’s okay for him to be with them.” After her third call, they forbid her from calling until midnight.
Jessica’s protection order featured a mandatory arrest clause in the event Simon violated his visitation scheme. Mandatory, to a reasonable person, entails an imperative not open for interpretation. Still, the police viewed the protection order as optional.
The Supreme Court agreed, holding that Jessica had no enforceable right to protection, despite the arrest clause. Justice Antonin Scalia saw no contradiction in the police inaction, arguing that “a well-established tradition of police discretion has long coexisted with apparently mandatory arrest statutes.” Castle Rock’s indifference to Jessica’s pleas and dead children falls under this constitutional veil of “discretion.”
Assessing the urgency of emergency is everyday police triage. Bank robberies get priority over cats in trees, and violent behavior takes precedence over noise complaints. Threats of harm are more important to police than residential minutiae, and discretion allows the department to deploy officers effectively and efficiently.
But there is a dark side to police discretion, and it disproportionately affects disadvantaged groups. Domestic violence calls are often dismissed as private matters between lovers, and women’s problems can be viewed as hysterical theatrics by male officers. Response time in wealthier neighborhoods far outstrips those of poor communities. And notoriously, “discretion” stands as the primary justification for racial profiling.
A 1996 study on police responses to crime found that the race of the victim and offender significantly affected police responsiveness. White victims received quicker responses and better follow-up. Black victims fared much worse. Differential racial outcomes stem from discretion, which plainly means the issues police find attention-worthy. Sadly, this turns objectively illegal crimes into subjectively important options.
It’s not entirely surprising that demographics influence access to public services. What is more surprising — and shocking — is the categorical protection of clear police ignorance, which puts police departments beyond reproach. Police are generally freed of responsibility for the citizens they are supposed to protect.
For over 10 years, Amanda Berry, Gina DeJesus, and Michelle Knight were hidden in plain sight, but outside the scope of police interest. When neighbors called for help, their pleas apparently fell on deaf ears. It’s clear that citizens — especially the marginalized — have no legal right to police protection. If you are a female resident of a poor, minority community in one of the poorest cities in America, you’re on your own.
By: Kevin Noble Maillard, The Week, May 17, 2013
“There Are No ‘Absolute’ Rights”: Limitations Are Both Possible And Necessary
Every time I write a column on guns, the howl arises that I am talking about a right that is enshrined in the Constitution, buddy, and I better watch myself. The howl then transmutes into an extended harangue that this right is absolute, and no libtard fascist, whether me or the Satanesque Dianne Feinstein, is going to limit the right in any way. The first soldier to charge across this rhetorical veld is followed by hundreds harrumphing their assent. The only problem is that it’s an ahistorical, afactual, and barbaric argument. No right is absolute. In fact, the Second Amendment arguably has fewer restrictions on it these days than many of the other first ten, and there is and should be no guarantee that things are going to stay that way. In fact, if we’re ever going to be serious about trying to stop this mass butchery that we endure every few months, they cannot.
Let’s begin by going down the list and reviewing various limits placed on nearly all the amendments of the Bill of Rights (I thank Doug Kendall of the Constitutional Accountability Center for helping me out here). The First Amendment, of course, guarantees the right to free speech and assembly, and to worship as one pleases. There haven’t been that many restrictions placed on the freedom to worship in the United States, although there is a steady stream of cases involving some local government or school board preventing someone from wearing religious clothing or facial hair or what have you. Sometimes a Christian school or church is denied a zoning permit; but more often it’s the freedom to worship of a minority (Muslim, Sikh, etc) that is threatened.
As for free speech, of course it is restricted. Over the past 50 or so years in a series of cases, courts have placed a number of “time, place, and manner” restrictions on free speech. To restrict speech in general, the government must meet four tests. But this is always being revised and negotiated. Here’s one restriction on the Bill of Rights that I’d wager most conservatives would happily approve of. In 1988, the HHS under Reagan promulgated rules prohibiting a family-planning professional at a clinic that received federal dollars from “promoting” (i.e. telling a woman about) abortion. This was challenged partially on free-speech grounds. In Rust v. Sullivan (1991), the Supreme Court held that these rules did not violate the clinicians’ free-speech rights. So far as I can see, this is still law. It’s just one example from many free-speech restrictions that have been imposed over the years, as you can see here.
Let’s skip the Second Amendment for now. The Third Amendment—my personal favorite—proscribes the private quartering of troops. Not so relevant to life today—in fact, the Supreme Court has apparently never considered a Third Amendment challenge. Onward.
The Fourth Amendment protects against unreasonable search and seizure, and of course there are loads of exceptions to this right, the most notable being that whenever an officer of the law has reason to think an imminently dangerous situation exists, s/he may invade a citizen’s privacy. Then there’s the question of the “exclusionary rule,” by which evidence deemed to have been improperly obtained can be excluded as evidence. Jurisprudence on this question goes back a hundred years, and this very interesting paper notes that it has been two decades since the Court upheld the application of the exclusionary rule in a search-and-seizure case. Since then, the Rehnquist and Roberts courts have ruled six times—every time for the government, i.e., limiting the constitutional protection. (Funny, isn’t it, how many of these other, non-gun limitations on the Bill of Rights are championed by conservatives?)
The Fifth Amendment most famously protects against self-incrimination. Kendall notes that there have indeed been almost no restrictions placed on this right—inside the trial courtroom. Outside the courtroom, however, limitations are rife, having to do mostly with circumstances of interrogations and confessions made within them. This amendment also provides for due process, and that means Miranda rights, and again here, we know from recent news stories that not everyone is immediately read them, and we also know that it’s conservatives who have always despised Miranda in the first place and seek to limit or overturn it today.
The Sixth Amendment provides the right to counsel and a speedy trial, and here again, our time is witness to a slow watering down of these rights by the Court’s conservative majority, as in 2009’s Montejo v. Louisiana. The Seventh Amendment guarantees the right to a trial by jury in civil cases, and this contains a blatant restriction: the Court has never “incorporated” this right to apply to states, where the majority of civil cases are tried, so most civil cases don’t include this right. And the Eighth Amendment, against cruel and unusual punishment, has been much contested with respect to issues like juvenile crime. The Ninth and Tenth Amendments don’t enumerate specific rights as such and so aren’t relevant.
Now, back to the Second Amendment. I’m sure that pro-gun extremists know very well about Scalia’s famous opinion in Heller (2008), which dramatically expanded gun rights. But even in that decision, Scalia himself said that Second Amendment protections could apply only to weapons “in common use at the time.” Chris Wallace asked Scalia in 2012 about semiautomatic weapons and extended magazines, and he said: “What the opinion Heller said is that it will have to be decided in future cases. What limitations upon the right to bear arms are permissible. Some undoubtedly are, because there were some that were acknowledged at the time. For example, there was a tort called affrighting, which if you carried around a really horrible weapon just to scare people, like a head ax or something, that was I believe a misdemeanor. So yes, there are some limitations that can be imposed.”
Now I don’t trust him to rule that way as far as I could throw him, but if even Scalia is saying that, then yes, limitations are both possible and reasonable.
Imagine what conservatives would think of a group of liberals who insisted, while threatening an insurrection, on a pure and absolute interpretation of the Fourth or Sixth Amendment—and imagine how ridiculous they would look to average Americans. Hunters, sportsmen, collectors, and even defenders of their homes (misguided as they may be, according to the statistics certainly do have rights to keep and bear arms that are reasonable and should not be trampled. But the idea that any right is unrestricted is totally at odds with history, the law, and reality. And the idea that a group of Americans possesses an absolute “right” to own and keep weapons that can—and in practice do—kill numerous innocent people in seconds, destroying families and communities and tearing at the nation’s collective soul, is barbaric and psychotic. As the old saying goes: if you want to shoot an assault weapon, go enlist.
For civilians, meanwhile, we’re one Supreme Court justice away from getting some sanity and balance to interpretations of the Second Amendment, and the only thing I can’t decide is whether it would be more delicious for Barack Obama to appoint that judge or for Hillary Clinton to do it.
By: Michael Tomasky, The Daily Beast, May 5, 2013
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