Thursday, June 27, 2013

"Flag on the Play..." The Voting Rights Act - The Supreme Court Calls a Penalty - On Congress

By Shawn Carter

President Lyndon Johnson signing the Civil Rights Act of 1964
"Supreme Court voids key part of Voting Rights Act"

Ever since the high Court delivered its ruling yesterday in Shelby County v. Holder, I've been trying to figure out how to pen this missive.

There are myriad angles which one could cover, every single one of them a legitimate course.

But the more I read the Opinion, the more one singular point jumps out at me.

The Chief Justice warned America, and Congress, four years ago, that a majority of the Court held serious reservations about the constitutionality of the very "key" part of the Voting Rights Act that they struck down earlier this week.

Let's start there.  Because this decision should not only have not come as a surprise to the advocates of the Voting Rights Act, but forces us to ask some very uncomfortable questions of those we depend on to defend our rights and liberties.

From  Northwest Austin Municipal Utility District One v. Holder, Attorney General, (2009)

The evil that §5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions. 

For example, the racial gap in voter registration and turnout is lower in the States originally covered by §5 than it is nationwide. 

Congress heard warnings from supporters of extending §5 that the evidence in the record did not address “systematic differences between the covered and the non-covered areas of the United States[,] . . . and, in fact, the evidence that is in the record suggests that there is more similarity than difference.” 

(“The most one can say in defense of the [coverage] formula is that it is the best of the politically feasible alternatives or that changing the formula would . . . disrupt settled expectations”).

The parties do not agree on the standard to apply in deciding whether, in light of the foregoing concerns, Congress exceeded its Fifteenth Amendment enforcement power in extending the preclearance requirements. 

The district argues that “‘[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end,’”

The Federal Government asserts that it is enough that the legislation be a “‘rational means to effectuate the constitutional prohibition,’” 

That question has been extensively briefed in this case, but we need not resolve it. The Act’s preclearance requirements and its coverage formula raise serious constitutional questions under either test.

So there you have it.  In clear, and unmistakable terms, the Roberts Court told Congress EXACTLY what would happen as soon as Sections 4 and 5 were properly before the Court.  In 2009.

Pop quiz:  Who exactly controlled the White House and BOTH houses of Congress in 2009?

The Democratic Party.  The party of voting rights.

Even as it reauthorized the Voting Rights Act, in 2006, Congress knew there were problems with it. They just had no readily available means to fix it. The Republicans controlled the White House, the Senate and the House of Representatives. It wouldn't be until January of 2007 that Democrats regained control of Congress and another 2 years before they regained control of the White House.

But in 2009, when Democrats regained control of all three, for the first time since 1993, no efforts were undertaken to cure the Voting Rights Act, even after the Supreme Court's ruling in Northwest Austin Municipal Utility District One v. Holder.

However, we did get ObamaCare and the Stimulus.

That is where we have to begin asking questions.

For sure, there is no immediate way to re-write Sections 4 or 5 of the Voting Rights Act. And from the record of the scholars, there is no easy way to do it even if the votes were there for it.

We would need to reclaim a filibuster-proof majority in the Senate and regain an operative majority in the House, in an upcoming election year where we are unlikely to regain the house, period, and will be fighting for our lives to maintain the majority Democrats have in the Senate.

In the meantime, the previously "covered" states are now free to pass as much legislation which potentially suppresses voters as they like free from the cumbersome leash of the Voting Section of the Civil Rights Division of the Department of Justice.

Because there is no way, on Earth, that the Republicans in Congress allow that formula to be revised and adopted while there are so many voters to intimidate and suppress nearing both the 2014 Midterm and the 2016 Presidential Elections.

Or put another way, had the Supreme Court issued this ruling in 2011 or 2012, almost every state in the South would have passed voter ID laws in advance of the 2012 Presidential Elections, like Pennsylvania did.

So, in the interim, the Attorney General must aggressively use Section 2 of the Voting Rights Act and act as the "Public Advocate" to litigate these issues in the stead of the citizens who will be potentially disenfranchised.

Better start calling your Congressperson and demanding nothing less. Some of the previously covered states couldn't wait a full day before announcing their immediate intention to write new laws, laws they dare not have attempted just one day prior.

Better yet, take the time between now and the November 2014 midterm elections to obtain photo ID and VOTE!

Voter intimidation and voter suppression only work because so few of us actually vote.

These laws, regardless of what they look like, are only designed to curtail the voting behavior of a very small portion of the nation's registered voters.  In 1870, when the 15th Amendment was ratified, many States used these laws to keep Blacks from voting at all.  Nowadays it is far more difficult to just deny minorities access to the franchise.  But they no longer have to, as we largely remove ourselves from the democratic process by just not showing up.  And because voter turnout, nationwide, is so low, all those who wish to keep their power (and keep many other people down) have to do is just shave off another few percentage points from the margins, because elections are largely won and/or lost within the margins.

Wednesday, June 26, 2013

DOMA, §3, falls to "States' Rights" argument


By Shawn Carter

As the title of this post indicates, the United States Supreme Court, by a vote of 5-4, ruled that Section 3 of the federal Defense of Marriage Act ("DOMA") is unconstitutional.

What specifically?

“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” 1 U.S.C. §7.

What does this mean?  If you marry in a State where same-sex marriage is legal, then the federal Government must recognize it for legal purposes.

Associate Justice Anthony Kennedy, writing for the majority, said the following:

The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage. 

The Federal Government uses this state-defined class for the opposite purpose—to impose restrictions and dis- abilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment. What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.

Justice Kennedy goes further to say:

"While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved."

Straight Dope
Essentially after years of seeing states' rights, long a code word for segregation and prejudices of all types, finally used to vindicate the constitutional rights of many, I chuckled as I hearken back to a very long conversation I had with someone on this very subject three years ago today.

We were talking about same-sex marriage and marriage equality under the Law.

But first, this from the dissent filed by his Honor, the Chief Justice of the Supreme Court of the United States:

The Court does not have before it, and the logic of its opinion does not decide, the distinct question of whether the States, in the exercise of their “historic and essential authority to define the marital relation,” may continue to utilize the traditional definition of marriage.

This is an important distinction for reasons upon which the Chief Justice subsequently elaborated:

The majority extensively chronicles DOMA’s departure from the normal allocation of responsibility between State and Federal Governments, emphasizing that DOMA “rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State.”

But there is no such departure when one State adopts or keeps a definition of marriage that differs from that of its neighbor,for it is entirely expected that state definitions would “vary, subject to constitutional guarantees, from one State to the next.”

Which brings me to the central point the Chief Justice is making here on this topic:

Thus, while “[t]he State’s power in defining the marital relation is of central relevance” to the majority’s decision to strike down DOMA here, that power will come into play on the other side of the board in future cases about the constitutionality of state marriage definitions. So too will the concerns for state diversity and sovereignty that weigh against DOMA’s constitutionality in this case.

In other words:

We may in the future have to resolve challenges to state marriage definitions affecting same-sex couples.

You better believe it.

Three years ago, I suggested that if properly challenged, there can't possibly be a way for the government (state or federal) to justify the constitutionality of prohibiting any two adults the right to marry based on a definition of marriage so deeply rooted in "tradition."

Associate Justice Alito opines in his dissent:

In asking the Court to determine that §3 of DOMA is subject to and violates heightened scrutiny, Windsor and the United States thus ask us to rule that the presence of two members of the opposite sex is as rationally related to marriage as white skin is to voting or a Y-chromosome is to the ability to administer an estate. That is a striking request and one that unelected judges should pause before granting. Acceptance of the argument would cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools.

That is precisely what America is asking.  It is precisely what the issue here is.  And it took some time for me to fully understand and appreciate that point as well.

Justice Alito delves further:

The first and older view, which I will call the “traditional” or “conjugal” view, sees marriage as an intrinsically opposite-sex institution. Bipartisan Legal Advisory Group ("BLAG") notes that virtually every culture, including many not influenced by the Abrahamic religions, has limited marriage to people of the opposite sex.

Except that here in America, we are a nation explicitly founded by a bunch of white men who revered their sovereign right to practice their Abrahamic religion(s) free from intrusion by the government and then established States where many of the laws and customs were based on a morality that could come from no place other than those very Abrahamic religious beliefs.

Ask MOST defenders of opposite-sex-only-marriage why they are right, and they can cling, only desperately, to religion.

TCPalm; Christopher Arnold
 And I thought to myself three years ago today, "At what point does that not violate the Establishment Clause of the First Amendment to the Constitution of the United States?"

Because if not inherently violative, this peeks awfully close to a near-naked violation of the separation of church and state envisioned by the First Amendment.

But back to the Chief Justice for a minute, because his dissent, I believe, was measured, and stands as a warning to those celebrating in the streets and to those who would let loose the dogs of the culture war on them:

We're a long way from home on marriage equality.  Today's decision merely reaffirmed that the federal government was constitutionally constrained to respect the definitions of marriage as defined by the many States.

It won't be long before that creates conflicts between States, as citizens of this Republic also have the Constitutional right to Interstate travel.

The Supreme Court will eventually, and likely sooner than later, have to resolve, to re-quote the Chief Justice:

We may in the future have to resolve challenges to state marriage definitions affecting same-sex couples.

But progress is progress, nonetheless.

And to those who fight the often thankless fight for the rights of Citizens in our Nation, I salute you.

Now, let's get Congress to re-write Section 4 of the Voting Rights Act.

Monday, June 24, 2013

House Republicans attempt to gut our public transit system

By Helen Gerhardt: Community Organizer for Pittsburghers for Public Transit
(This post does not reflect the official position of the organization.)

Rep. Dick Hess (R), majority chairman of the PA  House Transportation Committee, has introduced amendments to the transportation funding legislation which, if passed, would gut most of the funding sources for public transit originally proposed in Senate Bill 1. Required local matches for state funding would be significantly increased, most probably requiring various tax hikes on working people here on the home front, with no mention of local corporate and "charity" giants such as UPMC as possible contributors to the infrastructure they profit so handsomely from. Instead, the amendments would mandate that 10% of public transit routes in both Philadelphia and Pittsburgh would be put up on the block for private companies to bid on for their own profit. 

Without the very basic life-support funding that SB1 seemed to provide for our own region's public transit, Port Authority will, as Republican Senator Randy Vulakovich emphatically stated to PPT representatives just over a week ago, "enter a death spiral." If these new amendments pass, we would almost surely see cuts in service starting in September of 2014. Many communities and working families in the greater Pittsburgh metro region have already been terribly damaged by the 30% cuts over the last ten years.

And privatization has been tried around the country again and again, with mostly seriously negative results for the riders, drivers and regional economies that depend on a healthy, well integrated mass transit system. An in-depth review by Lynn Scholl of studies of such private contracting from across the nation showed that turning over transit systems to for-profit companies,
often results in under-insurance; substandard vehicle maintenance; higher levels of pollution, congestion, and accident rates; as well as inadequate coordination and integration of routes and fares….private transit operators may leave the less profitable routes underserved. The lower wages and benefits paid by private bus companies has often resulted in higher labor turnover, less qualified drivers, and lower productivity, leading in turn to declines in the safety and quality of service.

The Republican amendments have not yet been posted at the General Assembly website but the current word is that House Republicans will try to pass them by Tuesday. The bill would then go back to the Senate. 

So there's time yet to raise a ruckus over this great transit wreck. Recent ruckuses by riders in Brazil caused their government to reverse bus fare hikes. Such examples may provide some inspiration for some public transit supporters whose hopes have been crashed by the failures of more traditional forms of democratic communication with their elected officials. 

I'll be commenting far more extensively on current developments when I have direct access to the text of the new draft of SB 1. Previous drafts can be found here.