[LowKarmaAccount]

Tuesday's Shelby County v. Holder decision, which struck down part of the Voting Rights Act, was a power grab by the court majority that strayed wildly from precedent. From SCOTUS blog:

"Regarding deference, not that long ago, the Justices believed Congress held something close to plenary power when it crafted remedies addressing racial discrimination in voting. In case after case, the Justices made clear that they would not second-guess congressional judgments on the subject. Even as the Justices began looking more rigorously at particular types of congressional remedial action elsewhere, they repeatedly distinguished the invalidated laws from the VRA and celebrated provisions like preclearance as paradigmatic examples of permissible congressional action...

"The decision significantly diminishes Congress’s ability to craft future remedies for racial discrimination in voting and beyond. Indeed, after today, an administrative agency acting within the sphere of its expertise enjoys more discretion than does Congress when acting in the realm in which its power was once viewed to be at its apogee.

"At oral argument last winter, Justice Kagan bristled at the notion that the Court, rather than Congress, was the proper institution to decide when remedial action in this realm was needed. Justice Scalia was nevertheless convinced that “[t]his is not the kind of question you can leave to Congress.” Today’s decision makes clear that a majority of the Court shares this view. Earl Warren would have been astounded. William Rehnquist, too."

http://www.scotusblog.com/2013/06/how-big-is-shelby-county/#...

[tmuir]

"The formula that was struck down identified jurisdictions subject to preclearance as those with a history of a voting test or device and less than 50 percent voter registration or turnout as of 1964, 1968 or 1972."

http://www.brookings.edu/blogs/up-front/posts/2013/06/25-sup...

The decision hinged upon this very narrow point. Congress' decision to require preclearance was not declared unconstitutional on its own. The problem was that the formula for deciding who required preclearance is a static rule that does not allow for the evaluation of any events after 1972. Therefore, regardless of how much a state or other jurisdiction changes, they could not change their status under this law. If they were originally on the preclearance list, never had another voting anomaly, elected minorities to every position in the state, and had 100% minority turnout, for decades on end, they would remain on the preclearance list, because of what happened 40 years ago.

Chief Justice John Roberts even wrote in his opinion that congress is free to make new legislation that has the same consequences. But it must rely on current data to evaluate jurisdictions.

[LowKarmaAccount]

> The problem was that the formula for deciding who required preclearance is a static rule that does not allow for the evaluation of any events after 1972. Therefore, regardless of how much a state or other jurisdiction changes, they could not change their status under this law. If they were originally on the preclearance list, never had another voting anomaly, elected minorities to every position in the state, and had 100% minority turnout, for decades on end, they would remain on the preclearance list, because of what happened 40 years ago.

That's simply not true. You can seek exemption from section 5. It's called "bailing out". A county or state on the preclearance list that has not been discriminatory for 10 years (see [1] for criteria) may sue to be exempt from Section 5. Many counties have done this successfully; the state of New Hampshire successfully bailed out as recently as this March.

States or counties that were found to be discriminatory could also be "bailed in." Arkansas and New Mexico, LA County in California, as well as several other counties were bailed in.

In other words, the Voting Rights Act was built with a mechanism to self-destruct when it was no longer necessary. Congress overwhelmingly approved an extension of the VRA in 2006 after extensive research and testimony. If a state or county was still covered in 2013, then it had a problem with discrimination within the past ten years, which is the minority thought the opinion that "things have changed" was foolish.

http://www.justice.gov/crt/about/vot/misc/sec_4.php

[pessimizer]

The problem for me with this is that SCOTUS is defining "current," and additionally defining it in a nebulous way.

If they were originally on the preclearance list, never had another voting anomaly, elected minorities to every position in the state, and had 100% minority turnout, for decades on end, they could introduce a bill in Congress to end preclearance in their specific case. Of course, the current data from those jurisdictions is probably nearly as dismal as it was in 1972, so this wouldn't happen. Instead, the requirement for preclearance has been removed by dictate, with no evidence that the situation has significantly changed.