Voting Rights Act under siege (user search)
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  Voting Rights Act under siege (search mode)
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Author Topic: Voting Rights Act under siege  (Read 882 times)
jimrtex
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Posts: 11,817
Marshall Islands


« on: February 20, 2012, 01:37:24 AM »

There was an opinion in 2009 (don't want to look up the name) where the Supreme Court basically said that if Congress doesn't rework or repeal Section 5 in the next few years, we're going to get rid of it.  Kennedy joined in this, so it was rather obvious then that Section 5 was on extremely weak ground.  Since then, Congress has done nothing.
Northwest Austin Municipal Utility District No. 1 v. Holder

The Supreme Court ducked by ruling that NAMUDNO could seek bailout.  Virginia is not covered as a state, but individual counties and cities are, and they can seek to get cleared.  I think they have to pay a lawyer a large sum of money to say the right incantations and then promise to never do wrong again.  Texas is covered as a state, and would have to seek bailout as a state, though NAMUDNO changed that.

Part of the concern of the Supreme Court is the irrational basis of coverage, which is not based on "history" but rather than on a formula based on 40-year old data, that there is some evidence was arbitrarily applied.  In Shelby County, part of the reasoning for upholding Section 5, was evidence was that it wasn't just a mechanical formula, but that it had been reverse engineered to cover certain areas.  It would be interesting to find out why Brooklyn is covered, but Queens is not.  Arizona is covered, but Nevada not because the census bureau used different methods to determine the number of Hispanic voters.  The 4 covered counties in California are included because California had a literacy test, and the four counties had a lower percentage of voter participation - in all 4 instances because they had large military installations relative to their civilian population.  Military may have had low participation because they voted elsewhere, or simply because they were young and had participation rates similar to other persons their age.  If there was a discriminatory effect because of the literacy test, it would have had just as much impact in other counties, and perhaps less in the covered counties, because it was no longer being used - but had not been officially repealed.  Two of the military installations have been closed.   And Section 5 is mainly used as a cudgel.  For example, an attempt was made to derail the Gray Davis recall election.  It might deny minorities in 4 counties the ability to elect  their candidate of choice by holding a statewide election. 

Places like Washington and Hawaii have much worse race-based differentials in voter participation than Section 5 covered areas.  And Section 2 may be just as effective, and would probably set a clearer standard as to what is illegal.  Section 5 is like if a policemen could levy fines - do you want to pay $200, or should I book you and take you to jail.  It is often easier to pay the fine than fight it in court.
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jimrtex
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Posts: 11,817
Marshall Islands


« Reply #1 on: February 25, 2012, 02:44:06 PM »

Our friends at the USDOJ are quacking.

In 2009, the voters of Kinston, NC voted to switch to non-partisan city elections, which are used for almost all city elections in North Carolina.

The city council then made a Section 5 Submission to the USDOJ so that the change could be implemented.  The USDOJ interposed an objection, arguing that though Blacks were a majority of the VAP in Kinston, they weren't a majority of those voting in city elections, and that they might not be able to elect their candidates of choice because they didn't vote; but that they did control the Democratic primary, and other voters would vote for a Democratic candidate in the general election.   The city council, which had been elected in a partisan primary declined to appeal the decision.

Under Section 5. it is the government entity that seek preclearance before it implements a change.  Private individuals may only comment.  Since then, private individuals including the proponent of the referendum have been trying to get the case into the courts.  The DC district court said they didn't have standing since they were mere citizens, but that was reversed by the DC Court of Appeals.

The DC district court then upheld Section 5, and the plaintiffs appealed to the DC Court of Appeals.  The USDOJ then said that they just happened to reviewing a Section 5 submission from Lenoir County, where Kinston is located, and just happened to notice that Blacks in Kinston had been a majority in the 2011 city election, and therefore their reasoning before was no longer valid, and that they no longer interposed an objection to nonpartisan elections in Kinston.  Therefore the constitutional challenge to Section 5 is moot.  It is not the procedure that is a problem, just the USDOJ's sloppy analysis in a particular case.

This happened just days before oral arguments on the appeal to DC Circuit court, which has now canceled the hearing, and said they will take into account the USDOJ's motion to dismiss the case on mootness grounds.

It is a duck.
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