More thoughts on the VRA

[BigSkyBob]

We might as well start hiving out separate ballots based on race. Apparently one can only be represented by someone who looks like him or her.

I know you're being sarcastic, but it's important to remember that the current interpretation of VRA districts has absolutely nothing to say about the race of the person elected, only if that person is the candidate of the community's choice.

Corrected:

"I know you're being sarcastic, but it's important to remember that the current interpretation of VRA districts has absolutely nothing to say about the race of the person elected, only if that person is that race's choice."

Since when did the Constitution allow the government to decide which races, in what places, shall  dictate the results of an election?

[BigSkyBob]

We might as well start hiving out separate ballots based on race. Apparently one can only be represented by someone who looks like him or her.

I know you're being sarcastic, but it's important to remember that the current interpretation of VRA districts has absolutely nothing to say about the race of the person elected, only if that person is the candidate of the community's choice.

Corrected:

"I know you're being sarcastic, but it's important to remember that the current interpretation of VRA districts has absolutely nothing to say about the race of the person elected, only if that person is that race's choice."

Since when did the Constitution allow the government to decide which races, in what places, shall dictate the results of an election?

Amendment XV, Section 2

Section allows Congress to enforce section #1, which reads

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Sorry, the Fifteenth Amendment enshrines the right of citizens to vote in elections, not a right to win. The candidate of choice of the majority of voters is the candidate elected per the Constitution.

[BigSkyBob]

We might as well start hiving out separate ballots based on race. Apparently one can only be represented by someone who looks like him or her.

I know you're being sarcastic, but it's important to remember that the current interpretation of VRA districts has absolutely nothing to say about the race of the person elected, only if that person is the candidate of the community's choice.

Corrected:

"I know you're being sarcastic, but it's important to remember that the current interpretation of VRA districts has absolutely nothing to say about the race of the person elected, only if that person is that race's choice."

Since when did the Constitution allow the government to decide which races, in what places, shall dictate the results of an election?

Amendment XV, Section 2

Section allows Congress to enforce section #1, which reads

You must be logged in to read this quote.

Sorry, the Fifteenth Amendment enshrines the right of citizens to vote in elections, not a right to win. The candidate of choice of the majority of voters is the candidate elected per the Constitution.

I know that you (and many others) would like a narrow reading of the text of Amend XV Sect 1 to refer to only the act of voting. Whether anyone likes it or not, politicians have shown since the earliest years of the republic that they could very effectively make that act of voting meaningless for specific groups of individuals by diluting their voting strength through the drawing of districts.

Again, I will note that this is equally the product of democracy. Communists don't win. Mormons, Jehovah Witnesses, and Seventh Day Adventists have really problems winning. Majorities win elections at a great rate greater than their share of the population, and minorities win elections at a lower rate than their share. I don't think that means Jehovah Witnesses are entitled to relief for discrimination against their religion, or Communists for discrimination against their creed. I sure hope the average communist casts a "meaningless" ballot for the balance of his natural life.

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Well, there was that bit about poll taxes and literacy tests.

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Wait. The VRA was a Congressional statute, not a judicial act. The poll tax was eliminated by the Constitutional amendment process.

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This assumes that none of the challenges the VRA faces ever end in the act being further declared unconstitutional. Certainly, that is my preference.

There really are serious problems with the VRA.

1) Individuals have rights, not races.

2) It is unacceptable for the legislature to dictate partisan outcomes to the states. Nor, is it acceptable for the government to question the voting patterns of the electorate.

3) The act is based on the model of Blacks being overwhelmingly Democrat. Hispanics and Asians aren't. When the Justice Department demanded that the only Hispanic Republican in Texas be gerrymandered out of his seat, that, following your reasoning, was the complete "abridgement" of the rights of Hispanic Republicans.

4) It doesn't eliminate racially-motivated gerrymandering against minority Republicans. There really are prejudicial attitudes towards minority Republicans by many Democrats. Often, if a minority is conservative and Republican, they are smeared for being an "Oreo," "banana" or such. That animus could result in such Republicans being disproportionately targeted for elimination by gerrymandering. If we are going to outlaw racial motivations in redistricting then every racial motivation should be outlawed.

5) Interpretations of the VRA are being put forward that are blatantly unconstitutional, rather than merely being Constitutionally suspect. Claims that the preferences of the majority of a minority carry more weight than the preferences of the electorate are clear violations of equal protection before the law. There is a large element of partisan hypocrisy in this regard. A bifurcated standard is being put forward that focuses on minorities being decisive in the general election, but, not in the primary. In case anyone has forgotten, the VRA was passed to protect Black Democrats in the Democratic primary. That seems to have been conveniently forgotten.
If the VRA goes down in whole, it will be much as an act of suicide as homicide.

6) It has been 46 years since the VRA was passed. I don't think there is a single legislator in the country that was serving in 1965. A some point it is not acceptable to target the members of some legislatures because of their geographical location, or the acts of their predecessors.

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Pejorative buzzwords ["ranting" "anachronistic" "bygone era."] strung together that have absolutely nothing to do with my position.

My position rests in fidelity to the Constitution. The Constitution is not "an anachronistic" document from "a bygone era." It is the basis of our Republican form of government.

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I submit that this is a false alternative. Witness the filibuster of "conservative" Bush II judicial nominees by the Democrats in the Senate. There simply was a lower threshold for filibustering a minority nominees than there was for White nominees. That is, there was clear-cut discrimination against folks like Miguel Estrada become of their race. Presumably, somewhere in the Reconstruction Amendments there is a right for the Congress to protect the right of a Japanese-Hispanic not to be disqualified from serving on the Federal Courts simply because of his race. They don't seem to have passed that law. You don't see filibuster requests submitted to the Justice Department for pre-clearance.

Frankly, what happened to Estrada was racist, and odious, but, I don't see any Constitutionally acceptable recourse. If racism can inject itself into the Senate, if Senators are free to be as racist as they choose, then, in the privacy of voting booth, every individual should be free to be their potty little selves. I reject as false the premise that the world has to be perfect before people are entitled to be free.

[BigSkyBob]

Breaking up the thread into topics:

Muon2 wrote about my noting my opposition to the VRA was based on it being Unconstitutional, not an "anachronistic:"

"My statement was directed at your statements towards the VRA, not the constitution. Your analysis ahead of this (see point 6) would indicate that you do find the VRA anachronistic."

My opposition to the pre-clearance provisions dates back to 1965.

The Constitution has provisions against Bills of Attainers, Ex Post Facto Laws, and Corruption of Blood. It, also, has general provisions concerning the presumption of innocence, and equal protection before the law.

If the Congress exercised power under the Fifteenth Amendment section 2, to outlaw certain forms of reapportionment then those forms of apportionment became illegal in 1965. In 1964, they were perfectly legal. Deeming certain states as having a pattern of violating a law not yet in effect is ex post facto. If smoking were outlawed tomorrow, would we deem current smokers automatic suspects because they had a pattern of smoking when it was perfectly legal?

The presumption of innocence ought to have been granted to legislators. Having been informed in 1965 that certain forms of redistricting were illegal, the presumption ought to have been that they are law-abidding citizens. Instead, they were presumed to be criminals whom had to prove their innocence.

Individuals have rights, not races. If each White person has the right to vote for the White candidate, then, every White person has the right to vote for the White candidate at the same time. The same is True for Blacks. If the results are "racially polarized voting," so be it.  That fact may be unfortunate, or odious, but, then again so is flag burning. The Congress has no authority to second-guess, or pass judgment on, the motives of the voters. It certainly doesn't have the authority to direct punishment against individual states based on how their electorate vote.
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I am not aware of a single state legislator whom was serving in 1964. Whatever guilt they had, there is no basis for assigning it to their successors.

Finally, if the Congress wants to mandate principles of redistricting regarding race to the states, it should apply to every state equally, no matter how their voters vote. If Congress wants to mandate the principle that if a majority minority district can reasonably be drawn, then it must, then that principle ought to be enforced in all fifty states.  Either pre-clear all fifty states, or none.

As you can see, the only objection to pre-clearance I have stated that has changed since 1965 is the turnover in state legislatures.

In general, my opposition to certain elements of the VRA are not the result of it being "anachronistic," but rather, it being increasingly being subjected to reinterpretations that have moved it further and further from its intended purpose. Principles of "no regression" have been changed to allow for Democrats to exploit racially polarized voting patterns through gerrymandering to target minority Republican office holders for defeat by a White Democrat. Stopping the cracking of Blacks in the South to elect White Democrats has been substituted with the deliberate cracking of Blacks in the South to elect the maximum numbers of Democrats, whom might very well all be Whites. 

[BigSkyBob]

The Constitution has provisions against Bills of Attainers, Ex Post Facto Laws, and Corruption of Blood. It, also, has general provisions concerning the presumption of innocence, and equal protection before the law.

If the Congress exercised power under the Fifteenth Amendment section 2, to outlaw certain forms of reapportionment then those forms of apportionment became illegal in 1965. In 1964, they were perfectly legal. Deeming certain states as having a pattern of violating a law not yet in effect is ex post facto.

No it isn't. Passing the law with the intent to punish those who had drawn the maps that were in effect in 1964 would have been.

Well, that is what happened. People whom are presumed innocent don't have to prove their innocence. It is the obligation of the state to prove their guilt. That presumption was taken away from states that were not guilty of any crime.

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I refer you to Smith v. Doe, where the requirements for sex offenders in Alaska to register themselves with the Department of Corrections even if their crimes were committed before the Act was passed were upheld. There is a difference between suspecting people of crimes based on their previous acts and punishing them for those acts. Ex post facto only applies to punishment.
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The analogy to Smith vs Doe would be, "If smoking were made a felony tomorrow, while smoking tobacco today was merely a misdemeanor, would we deem people convicted of the misdemeanor of smoking to have had a pattern of smoking illegally?" People should be presumed to be law abiding of both misdemeanors and felonies. When they fail to abide by the law that presumption weakens.

[BigSkyBob]

Well, that is what happened. People whom are presumed innocent don't have to prove their innocence. It is the obligation of the state to prove their guilt. That presumption was taken away from states that were not guilty of any crime.

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Your argument seems to be based on the premise that "presumption of guilt" based on actions made before the VRA was passed constitutes a punishment, and therefore violates the ex post facto clause. I contend that the Alaska law that was disputed in Smith v. Doe effectively does the same thing by presuming that past sex offenders are more likely to repeat those acts,

Wait, in the case of the VRA the presumption of guilt was based on past legal behavior, while in the case of child molesters in Alaska, it was based on past illegal behavior. There is no basis whatsoever to conflate legal and illegal behavior.

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Wait, child molesting was illegal when those folks were convicted of molesting children. A new law was passed that treated convicted child molesters as suspect. Their status as suspects was based on their illegal behavior. Illegal acts foreited, rightly or wrongly, their presumption of innocence.

Southern legislatures did not engage in any illegal redistricting act. None, zero, zip, nada.

[BigSkyBob]

Well, that is what happened. People whom are presumed innocent don't have to prove their innocence. It is the obligation of the state to prove their guilt. That presumption was taken away from states that were not guilty of any crime.

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Your argument seems to be based on the premise that "presumption of guilt" based on actions made before the VRA was passed constitutes a punishment, and therefore violates the ex post facto clause. I contend that the Alaska law that was disputed in Smith v. Doe effectively does the same thing by presuming that past sex offenders are more likely to repeat those acts, and the court in that case ruled that such a presumption is not a punishment, and therefore not a violation of the ex post facto clause. The courts have consistently ruled that there is no violation of the ex post facto clause unless there is retroactive punishment.

A sex offender is a sex offender. If you want to make the analogy find a law that burdens the children and grandchildren of sex offenders.

I am specifically making the analogy in reference to the ex post facto argument.

You made an apples and oranges comparison between laws that presume someone duly convicted of a crime is suspect to offend again, with a law that presumes someone who did something perfectly legal is suspect to do the same thing now that it has been criminalized.

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That's a fancy way to say that once a law is passed people have an obligation to obey that law.

That wasn't the question raised. The question raised, is why are some states presumed to be offenders, while other states are not?

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And, suspecting people based on past lawful behavior is applying a law retroactively rather than proactively.

Had the Congress wish to enforce the VRA proactively, they could have chosen all fifty states to submit their plans for pre-clearance.