10723

To a degree. This is why the legislating from the Bench from the Supremes regarding the Voting Rights Act was so heinous. These laws would have been plainly illegal before then, and the result is still the same - breaking the 14th Amendment.

10724

The ruling from the scotus wasn’t that the voting rights act was bad due to what it did, but because it was treating different states differently, based on their status on the 1960’s.

I think that was in fact kind of bullshit.

It would have been better if those rules applied to all states, or were at least revaluated on an established period of time.

Unfortunately, Congress currently has no real capacity to pass laws and fix such a thing.

10725

I agree entirely on that- this is the fix that would work, and it was proven to be necessary by actions in non-Southern states such as Wisconsin.

10726

The problem with that system is that it would be hard to implement. Costly and bureaucratic, and while it was going on, the criminal element would be off gutting the voting rights of people.

It’s like knowing the criminals are casing a bank, and in response, you send all your cops to different banks, leaving the one bank unprotected.

10727

This is true, but if the House members in question are saying the election that elected them should not be certified, can they be said to be “duly elected”? I mean, to use last year’s election as an example, we are talking about the very same election that elected both the House Reps in question (who were happy to accept their own certification, swear an oath and start legislating) as well as Joe Biden (to whose certification the House reps objected, 130+ of them.) And not just the same election, but the same ballots. Counted by the same machines, tallied by the same election clerks, vetted by the same election officials, and certified by the same election boards and Secretaries of State.

I mean, if 130+ House members are going to go on record and say the November 2020 election was tainted and suspect and should not be certified, WTF are they doing in that office, to which they were elected by that exact same election?

That’s the issue here - not retaliation but pointing out the ridiculous hypocrisy and also I would say disqualifying “unclean hands” / estoppel from a legal standpoint. You can’t have it both ways. If the House Reps’ own victory in the election of November 2020 was valid, how can they challenge Joe Biden’s victory in the same election, without very specific and detailed evidence, on multiple levels? I mean, if the Joe Biden victory is tainted, then their victory is tainted. If Joe Biden’s win should not be certified, then their win should not be certified. If the November 2020 election was a bad election requiring more investigation and auditing and recounting before seating a winner, then that applies to them as well, right?

No? Why ever not?

Again, we are talking about the exact same election, exact same ballots, exact same procedures and personnel. In fact, in most states the Presidency is the top of the ballot and Congress is right after it, so we are talking about votes that are right fucking next to each other.

Basically the whole “Why I will happily take my win and consider myself a valid election winner but I will object to the opposite party winner who won RIGHT FUCKING NEXT TO ME” just really rubs me the wrong way. Unless of course there is real, credible evidence, on a scale that would effect the election, of which there is… none.

We focus on the violence of the MAGA types on 1/6/21 but in all honesty the depraved, self serving, two-faced, anti-democratic behavior of the GOP House Reps and Senators who voted not to certify Biden’s win was actually worse behavior, more potentially harmful to democracy in the big picture b/c of the vast power wielded by Congress.

Again, if a House Rep takes a position on the record that the November 2020 election should not be certified, and demands further investigation of the election, an election that put them in the House where they are, they should be suspended from the House until the investigation is complete and the result is certified. Not retaliation, but rather equal enforcement. Sauce for the goose, etc.

10728

You can’t just say that some states get to control their own election laws, and other states don’t though.

10729

The problem is that Joe Manchin’s proposed solution of just regulating ALL the states probably won’t pass muster with the current USSC either. The Court originally allowed the restrictions on states as being justified by the findings of fact of de jure racism back in the 60s and the decision that gutted that said those findings of fact basically no longer hold up. So to regulate ALL states Congress would have to make findings of fact of de jure (ie legal and official) racism in all 50 states and the Supreme Court would then have to have find those findings of fact valid and substantial. Basically, under the ruling that gutted the pre-clearance law, I think pre-clearance is actually dead, Jim, until we get a vastly different Supreme Court. (In other words, I think Manchin is going in the wrong direction.)

To clarify, the issue that led to the death of pre-clearance was not treating some states differently than others but rather that the Supreme Court invalidated the findings of fact (or racial discrimination by those states) as being outdated and no longer applicable.

This all comes down to the powers of Congress to regulate elections. Under the Constitution, the Congress can regulate the election of its own members, but to regulate elections for state and local officials, as well as the President, the Congress needs to assert another source of power. In the case of the Civil Rights Act of 1965, that was based on the interstate commerce clause and the 15th Amendment, and was justified by findings of fact that the Jim Crow states had enforced actual legal segregation (de jure discrimination).

I mean the law is complex and the Supreme Court could do a lot of things, but people who assume Manchin’s solution would work are IMO assuming a LOT. Right now, I’m not real sanguine about any meaningful voter protection being held up at the Supreme Court level, but we’ll see.

10730

Raa71284d0ef9b6c5ebcb2cdb00db70b4

10731

More on point

image
image406×628 71.9 KB

10732

I get the first pic but what’s this one?

10733

Earl Warren? Doesn’t really look like him though…

10734

Under the Supreme Court rulings prior to Shelby, you could in fact do that, so long as it was supported by valid factual findings that the states had engaged in de jure discrimination in violation of the 15th Amendment (that is actual racial discrimination by the state government such as Jim Crow voting or segregation laws). Shelby said the old findings from the 60s and 70s were no longer good. Basically to reinstate pre-clearance Congress would need to make new findings and the Supreme would have to consider them valid. I do think a lot of the recent voting laws in places like Georgia and Texas qualify but I’m not sure the Supreme Court would agree. And the Supreme Court is certainly not going to validate findings of de jure racism in all 50 states.

To clarify, Manchin interpreted Shelby County as being about picking on certain states but it was not. Shelby County was about the validity of the findings used to justify federal intervention into state and local elections. The reason only certain states had been targeted is that only certain states met the factual criteria laid out in the Civil Rights Act. Extending that to all 50 states doesn’t help, it actually increases the odds of the Supreme Court throwing the whole thing out, not on a theory of discrimination as between states, but as a lack of authority by Congress to interfere with state and local elections without the backing of the 15th Amendment (which requires that the state be discriminating racially).

10735

Let me try to clarify this a bit b/c Manchin’s muddled thinking has confused a lot of people and the media discussions haven’t helped.

Congress only has certain powers under the Constitution. It does have the power to regulate elections for Congress under the Elections clause, but that does NOT give Congress the power to regulate state and local elections or Presidential elections.

To regulate non-Congressional elections, Congress needs another source of power from another part of the Constitution. For the Civil Rights Act Congress invoked the 15th Amendment which says:

Section 1

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2

The Congress shall have the power to enforce this article by appropriate legislation.

In addition the Civil Rights Act also prohibited racial discrimination in private business under the interstate commerce clause. But for the election part, the power comes from the 15th Amendment. The 15th Amendment applies when a state tries to “deny or abridge” the right to vote on account of race. Congress set up criteria under the Voting Rights Act to determine which states the strongest part of the Act (pre-clearance) applied to back in the 60s, renewed in the 70s. Only some states were found to have denied or abridged voting on account of race, and thus only some states were subject to pre-clearance.

Shelby County (the Supreme Court case from a few years ago that threw out the pre-clearance part of the Voting Rights Act) held that those old factual criteria were no longer valid. A lot of people including the media have read that and think that Shelby County stood for the idea you couldn’t pick on some states but not others. Manchin has taken that really far to say “let’s do pre-clearance for ALL the states!” (Andy Rooney voice optional). But that’s wrong. To extend pre-clearance to ALL the states, Shelby County’s rationale would require Congress to create factual criteria that would show all 50 states have abridged or denied voting based on race. It’s not a matter of discriminating between states. It’s a matter of Congress having the power to do this at all. Congress gets the power from the 15th Amendment but that only applies if a state is actively denying or abridging voting races on the basis of race.

So, basically, since race-based voter discrimination has gotten way more subtle and also gotten entangled with party-based voter discrimination (which the Supreme Court under the shitty Rucho case allows) there’s really no way to have the kind of factual evidence of actual state-level racially biased voter discrimination that Shelby County would require. Keep in mind I reject huge portions of the legal reasoning in both Shelby County and Rucho but both were written by Chief Justice Roberts and with him backed by a 6-3 majority they are problem written in stone until major change happens to the Supreme Court.

So Manchin misunderstood Shelby County, and proposed a silly idea that won’t actually work.

10736

Ya, I get that, it’s that combination of treating some states differently, but only so based on what they did decades previously, which just seems inherently problematic, regardless of your politics.

Under that system, if I understood it, those restrictions on those states just existed forever, regardless of how those states changed, unless the Congress decided to not renew the law… But in that case the whole thing would go away.

Making that kind of restriction bad on a snapshot in time doesn’t make a lot of sense.

10737

Mike Mansfield. The Senate majority leader who introduced and shepherded through the Senate the voting rights act (and other great society programs).

10738

Keep in mind, there is an alternate theory, based on the 14th Amendment “Equal Protection Clause” that would allow Congress to intervene in state and local elections. Pre-clearance (which means the states can’t change the voting laws unless the feds approve ahead of time) is in fact a pretty massive federal extension of power and should only be used in limited circumstances.

In an ideal world, I would probably have a federal law, based on Equal Protection, that would not impose pre-clearance but that would establish a bunch of minimum standards for voting access, etc., along with making the legal standards for federal court review clear and simple. As a small example of what I mean, there is a joke in election law circles that goes “The Federal Courts view any election lawsuit that is not too early as too late”. Right now, trying to bring a federal suit against an election law is a minefield of timing and other procedural issues. If the court thinks you filed too soon, the court can reject the suit lack of “ripeness” and other considerations. If you file any time later than that, since election clocks are always ticking and court is slow, you run the risk of your dispute becoming legally moot since the election already happened. That’s just one example of why trying to prevent voter restrictions via the court is a rough road right now.

Congress could actually improve that side of things by mandating some clear federal procedures, minimum standards, standardization of certain rights to vote and access to the ballot and so on. This would be allowed in my view under a combination of Congress own power to regulate their own elections, interstate commerce, and Equal Protection.

In addition, under Equal Protection and the Elections Clause, Congress could overrule the Rucho case and impose some neutral standards for redistricting. (And when I say overrule Rucho I don’t mean Congress is overruling the courts but I mean Congress could address the lack of power and standards that Rucho is based on - Congress could, under Equal Protection, give voters a right not to be discriminated against on the basis of party, and also give the courts standards of “justiciability” to resolve gerrymandering cases - Rucho was based on what Roberts saw as a lack of those things - Congress can fill that gap, which would not overrule Rucho legally but would overrule it as a practical matter.)

Those are things Congress can do that would likely pass muster and is what we should be focusing on. The super-broad provisions of HR1 are likely a bridge too far (both politically and legally), and the whole pre-clearance thing / John Lewis Act is likely dead until the Supreme Court improves. Also, the whole Manchin “let’s drive the federal bulldozer deep into EVERY state!!!” idea is just… dumb, bad, and not going to happen. (I shake my head at this. Some folks misread Shelby County or didn’t understand it, and it leads to this, but this is all wrong.)

10739

Except, of course, that it didn’t. The VRA was amended:

1970 - Congress re-examined the law and modified the coverage formula to use 1968 as the baseline, and changed the bailout period to 10 years
1975 - Congress re-examined the law yet again and modified the coverage formula to use 1972 as the baseline, and changed the bailout period to 17 years
1982 - Congress re-examined the law yet again and found the coverage formula appropriate
2006 - Congress re-examined the law yet again and found the coverage formula appropriate

Note that each of the times Congress took it up again were because the previous time there were time limits enacted on the special provisions, which included the preclearance requirements. And then there’s the bailout provision that allowed a state to, upon showing they hadn’t done the things pre-clearance sought to prevent over the previous X years, could get out from under the special provisions.

So the whole "omg states are under the oppressive regime set in 1965 for evar!!!1!’ is, to put it mildly, bullshit. The fact the Supreme Court could articulate no Constitutional provision it violated, and ignoring the 15th amendment, is just icing on the cake.

10740
10741

You hate to see it.

10742