We may need a Plan B without Section 5

We’re waiting to learn the fate of the Voting Rights Act. Here is an excellent propublica rundown of the history of the Act and an explanation of how the law works:

Section 5 requires nine mostly Southern states — Alabama, Georgia, Louisiana, Mississippi, South Carolina, Alaska, Virginia, Texas and Arizona — and areas of seven others to preclear any change to a voting law or procedure with the federal government.
This review is conducted by the Civil Rights Division of the Department of Justice or a panel of federal judges on the U.S. District Court for the District of Columbia. If a voting change hasn’t been submitted for review, the change can be legally unenforceable.
Section 5, which was enacted by the original Voting Rights Act, was meant to address the systemic disenfranchisement of African Americans by state lawmakers in the South since the end of Reconstruction.
Under the provision, covered jurisdictions must prove that any proposed voting change doesn’t have a discriminatory purpose or effect or would diminish minorities’ ability to elect a favored candidate.

Do we rely on the Voting Rights Act all that much? Yeah. We do:

In the last year alone, the Justice Department and federal judges have blocked more than more than a dozen electoral changes in covered jurisdictions. The “Section 5 Objection” page on the Justice Department website has detailed information on these cases.

Are states delaying more restrictive voting schemes, waiting for Section 5 to fall so they may avoid review?

In March, Virginia passed a strict photo voter ID law that won’t go into effect until 2014. It’s the second voter ID law they’ve passed in as many years — the first one enacted last year only after a review by the federal government made sure that it would not disenfranchise voters of color, even by mistake. The U.S. Department of Justice reviewed and cleared it just in time for the November elections last year. The much stricter version of Virginia’s voter ID law passed this year may not enjoy the same federal scrutiny given its 2014 start date. Reason being, if the U.S. Supreme Court rules that Section 5 is invalid — and a ruling is expected within weeks — then the voter ID law would go into effect regardless of its impact on people. A report from the Brennan Center for Justice, “If Section 5 Falls: New Voting Implications,” shows that many states have voter ID and other election laws on ice, and could quickly thaw them out for implementation immediately upon a SCOTUS ruling killing Section 5. It is not a foregone conclusion that SCOTUS will do this, but Chief Justice John Roberts, Justice Antonin Scalia and Clarence Thomas have all indicated that they want to strike it.

“There are experts in the field and on the ground who are very concerned that certain [election law] changes that are anticipated are being stalled in moving forward for section five preclearance and the concern is that it is being done with the hopes of section five not being a barrier in the future,” said Myrna Perez, deputy director for the Brennan Center for Justice’s Democracy Program and co-author of the report, in a call with Colorlines this morning.

In other news, today is Juneteenth:

Maj. Gen. Gordon Granger of the Union Army announced to the assembled crowd at Ashton Villa in Galveston, Texas, “In accordance with a proclamation from the Executive of the United States, all slaves are free.”
It was June 19, 1865.
Never mind that President Abraham Lincoln’s Emancipation Proclamation had been written and read more than two years earlier. Juneteenth, named for the June 19 declaration, started as a celebration of emancipation day in Texas and eventually spread to other states. With celebrations dating back to 1866, Juneteenth now commemorates the end of slavery in the United States.

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60 replies
  1. 1
    Brother Machine Gun of Desirable Mindfulness (fka AWS) says:

    Fuck all the neo-confederate motherfuckers. DIAF already.

  2. 2
    MikeJ says:

    One week from tomorrow is probably the last day that the Supremes will hand down opinions. We’ll know about this and all the other cases soon.

  3. 3
    efgoldman says:

    With celebrations dating back to 1866, Juneteenth now commemorates the end of slavery in the United States.

    Why do I think that its not widely celebrated in Texas any longer?

    As for section 5 of the VRA, if its nuked by SCOTUS, voting laws can still be challenged on 14th Amendment grounds, but its a much longer and more cumbersome process, correct? (IANAL)

  4. 4
    Spaghetti Lee says:

    The argument of the anti-Section 5 people is that, hey, we don’t need it anymore. We’re totally beyond that now! It’s an anachronism! Now excuse us while we mercilessly ram this ALEC bill through the statehouse that restricts voting rights to white property-owning Christians over age 50 who make more than $100,000 a year.

  5. 5
    RobertDSC-iPhone 4 says:

    @Brother Machine Gun of Desirable Mindfulness (fka AWS):
    A trillion times this.

  6. 6
    Baud says:

    Voter suppression laws woke a lot of people up. If the conservatives strike down section 5, hopefully even more will wake up.

  7. 7
  8. 8
    Roger Moore says:

    @efgoldman:

    As for section 5 of the VRA, if its nuked by SCOTUS, voting laws can still be challenged on 14th Amendment grounds, but its a much longer and more cumbersome process, correct?

    If Section V is nuked, voting changes can still be challenged under Section II, which covers the whole country. But that assumes that all changes are OK unless specifically objected to, and it requires proof of discriminatory intent rather than just discriminatory effect.

  9. 9
    Omnes Omnibus says:

    I am still hopeful that it won’t get overturned. I can offer no analysis or anything else to back up it up, but I still have hope.

  10. 10
    Kay says:

    @efgoldman:

    Right, but it also my birthday, so I always remember it :)

  11. 11
    efgoldman says:

    @Roger Moore:

    … and it requires proof of discriminatory intent rather than just discriminatory effect.

    Crap. This SCOTUS believes “discriminatory intent” is as real as the tooth fairy.

  12. 12
    Kay says:

    @Baud:

    Agreed. Politics is part of it. I’m serious about the Plan B. My concern is that there will be very localized changes, all the way down to the precinct level, and those will go unnoticed by national media.
    I don’t think they’re dumb enough to do a full bore assault the second it goes down. I think they take it local.

  13. 13
    efgoldman says:

    @Kay:

    Right, but it also my birthday, so I always remember it :)

    Well, happy birthday then, Kay. Also too, yes I checked you’re not in Texas.

  14. 14
    Violet says:

    @efgoldman: Juneteenth is celebrated in Texas every year. Parades and other celebrations attended by elected officials. It’s not ignored.

  15. 15
    efgoldman says:

    @Violet:

    Juneteenth is celebrated in Texas every year. Parades and other celebrations attended by elected officials.

    Do Tailgunner Ted Cruz and other TeaHadis make appearances and give speeches?

  16. 16
    Chris says:

    Never mind that President Abraham Lincoln’s Emancipation Proclamation had been written and read more than two years earlier. Juneteenth, named for the June 19 declaration, started as a celebration of emancipation day in Texas and eventually spread to other states. With celebrations dating back to 1866, Juneteenth now commemorates the end of slavery in the United States.

    Wouldn’t the appropriate day to celebrate emancipation be the day slavery was abolished in the entire country (e.g. in the four Southern/Union states that the Emancipation Proclamation intentionally left out), whenever that was? That would, after all, be the day that slavery was legally abolished in the entire United States, and not just in a region of it like the North (pre-Civil War) or the states in secession (post-Emancipation Proclamation).

  17. 17
    Roger Moore says:

    @Omnes Omnibus:

    I am still hopeful that it won’t get overturned. I can offer no analysis or anything else to back up it up, but I still have hope.

    The one hope I have is that Scalia has been acting like a gigantic dick about it exactly the same way he was over Obamacare. I like to think that if he had won, he’d be acting smug about it rather than bitter. Take it for what it’s worth.

  18. 18
    raven says:

    @Chris: Wouldn’t it be appropriate to celebrate something Mexican on a day other than one that the MEXICANS don’t really celebrate?

  19. 19
    Patricia Kayden says:

    @Baud: That’s what I gather will happen. There will be a backlash among minority voters if the Supremes do anything silly. Repubs are going to have to figure out a way to win elections without suppressing the minority vote.

  20. 20
    Baud says:

    @Kay:

    Happy Birthday Kay! What are you doing here? Go out and celebrate with real people.

  21. 21
    Mnemosyne says:

    @Chris:

    Meh. The Declaration of Independence wasn’t signed on July 4th, but we celebrate it on that day anyway. And don’t get me started on Jesus’s birthday, aka Christmas, being celebrated in the middle of winter when the existing New Testaments account clearly place it in the spring. Shepherds don’t watch their flocks by night in the middle of December, they only do it during lambing season, i.e. the spring.

  22. 22
    Mnemosyne says:

    @raven:

    Wouldn’t it be appropriate to celebrate something Mexican on a day other than one that the MEXICANS don’t really celebrate?

    They don’t celebrate St. Patrick’s Day in Ireland, either, or at least didn’t do it until American tourists demanded it. Cinco de Mayo is a holiday for Americans of Mexican descent the same way St. Patrick’s Day is a holiday for Americans of Irish descent. So, once again, meh.

  23. 23
    efgoldman says:

    @Mnemosyne:

    Shepherds don’t watch their flocks by night in the middle of December, they only do it during lambing season, i.e. the spring.

    Blasphemer! You probably deny the part of the Holy Gospels where it says the rich will inherit the earth, also too.

  24. 24
    dollared says:

    Kay, isn’t Plan B a national voter’s bill of rights law that is specifically tied to the loss of the Voting Rights Act? Make it all about “we understand you southerners felt stigmatized (by your own racist behavior), so we’ll have a national act that sets standards for poll access, early voting, etc., and prohibits certain activities (e.g. caging,), and then make sure it applies equally to all 50 states?” And then dare the Republicans to block it.

  25. 25
    Kay says:

    @Baud:

    I had a really nice day. I’m going on a 5 day hiking trip in September to Lake Superior and I’ve never been on a “real” hike, so I’m getting ready. I don’t like surprises.
    BJ commenters who are real hikers told me to practice, so I’m doing that. I’m at Lake Michigan and I went 5 miles today and it was easy. Piece of cake. I’m going to be fine.

  26. 26
    dollared says:

    And happy birthday!

  27. 27
    Baud says:

    @Kay:

    You’ll be great. And be sure to register some Democratic voters while you’re on the hike. :)

  28. 28
    Kay says:

    @dollared:

    I agree! I think a good strong federal law is great politics and good policy. I would love to go off defense. We could also use it to educate voters, so it isn’t a waste of time if it fails. That works, education. When we did the petitions to block the OH law in 2011 we really got people going on voting rights. It’s either get people to pay attention to their own right to vote or assign a lawyer to each voter :)
    It’s a big country.

  29. 29
    LesGS says:

    @Mnemosyne: My daughter, who works in an Irish pub in SoCal calls Cinco de Mayo, Drinko de Mayo. (Also, she hates St. Patrick’s Day ‘cuz it’s all-hands-on-deck to deal with the stupendously inebriated green-tongued clientele. This last time she wore orange socks to work on that holiday.)

  30. 30
    burnspbesq says:

    Can we stop already with the ignorant crap about “the loss of the Voting Rights Act?”

    There is a lot more to the Voting Rights Act than the Section 5 pre-clearance process, and there is very little reason to believe that pre-clearance is the only viable way of enforcing the Act. Republican state legislators, by and large, are too damn stupid to effectively hide the discriminatory intent behind their proposals (in fact, they have strong incentives to talk about said discriminatory intent, so that the base knows that its concerns are being heard and acted on), so it shouldn’t be all that hard for DOJ to demonstrate probability of success on the merits and get TROs to prevent new laws from going into effect.

  31. 31
    Baud says:

    @burnspbesq:

    Republican state legislators, by and large, are too damn stupid to effectively hide the discriminatory intent behind their proposals

    I kind of agree with this. These are people who can’t stop debating rape. I can see them getting all excited and talking openly about how the Supreme Court allowed them to reenact Jim Crow.

  32. 32
    Omnes Omnibus says:

    @Kay: Well, happy birthday to you!

  33. 33
    Roger Moore says:

    @dollared:

    Kay, isn’t Plan B a national voter’s bill of rights law that is specifically tied to the loss of the Voting Rights Act?

    Good luck getting it through Congress. We need a practical Plan B that doesn’t rely on new legislation.

  34. 34
    dollared says:

    @Baud: Ignore Burns. We’ll lose every court challenge. Lo0se statements to the press by right wingers are not evidence of legislative intent, much less discriminatory effect. We lose Section 5 and the next10 years will see a massive wave of September changes to the voting laws in even numbered years. And they will successfully reduce the vote.

  35. 35
    ruemara says:

    Funny, this topic. I just got the judgement against me on my traffic citation. If I won, I’d have my financial reserve back and I could probably stretch it a bit and buy a new camera. Not only did I lose, but they’re also not crediting me for the fact that I paid the traffic school fee up front. If there’s a deity, an animus to this universe, it fucking hates me and enjoys causing pain and suffering.

    ruemara +whatever half a bottle of merlot is and if wine makes for a happy heart, this shit is goddamn defective.

  36. 36
    Roger Moore says:

    @Kay:

    I’m at Lake Michigan and I went 5 miles today and it was easy.

    Was that with or without the full kit for your 5 day hike? A pack slows you a lot more than just the weight would make you think. The bulk and change in balance has a surprisingly large effect.

  37. 37
    Kay says:

    @Roger Moore:

    Without. It’s great advice, though. I’ve been trying it with a pack when I’m closer to home and it is much harder. I was a little shocked at how much different it is. It’s like carrying a toddler on your back.

  38. 38
    efgoldman says:

    @burnspbesq:

    …so it shouldn’t be all that hard for DOJ to demonstrate probability of success on the merits

    I think you’re probably right on the logic and the law, but you know the TeaHadis will use their ALEC money to appeal all the way to SCOTUS. If we assume, for this scenario, that the supremes have already croaked section 5, what’s to prevent them from killing the rest?
    For that matter, what’s to keep them from killing all of the VRA now?

  39. 39
  40. 40
    Kay says:

    @burnspbesq:

    I disagree with you burns, as you know. Section 2 is not the same as 5, and you know it.

  41. 41
    Linnaeus says:

    @Kay:

    Awesome. The Lakes are the best.

  42. 42
    Violet says:

    @efgoldman: Ted Cruz and the Teabaggers have only been either elected officials or in existence as a group, respectively, for a short time. Juneteenth has been celebrated for a long time. It’s primarily celebrated by the African American community, as you’d expect.

    I get the impression you are trying to make a point that white, teabagger types and Republicans (overlap there, of course) don’t attend those celebrations. You’d probably be right. Hardly a surprise. What does that say about anything? Do white teabagger types in California or Boston or wherever some liberal bastion is attend similar events? They’re largely defined by being racists. Why would they attend except to cause trouble?

  43. 43
    Kay says:

    @burnspbesq:

    I know you care as much about voting rights as I do, so it’s not a slam. We just disagree. I think 5 is vital. Really important.

  44. 44
    Violet says:

    @Kay: Happy Birthday, Kay! Hope you are doing something nice for yourself today.

  45. 45
    LesGS says:

    @Kay: Keep as much of the weight on your hips as you can. A pack with a good hip belt equals doubleplusgood. As I know from carrying a toddler many miles in a baby backpack.

    ETA: Happy birthday!

  46. 46
    Kay says:

    @Violet:

    Thanks so much. It was really nice. I went hiking and then to the beach. It’s gorgeous at Lake Michigan, but not really beach weather. It’s cooler than normal.

  47. 47
    LesGS says:

    @muddy: Tim Wise. Awesome.

  48. 48
    dollared says:

    @Kay: oh, and Lake Superior? Please bring strong bug repellent, and account for the possibility of wet and cold weather. I’ve had great weather in the UP, and I’ve had miserable weather. But it’s always beautiful. It’s America’s original post-industrial wilderness.

  49. 49
    Violet says:

    @Kay: Sounds lovely! I didn’t know you were going on a backpacking trip in September. Sounds like you have good advice. I’ve got a fair amount of experience backpacking, so my suggestions would be to make sure you have a good pair of boots. Use liner socks and then your hiking socks–or at least try that. It has made a big difference to me. Wear your boots before you go on the trip to make sure they work for you.

    The advice on a good backpack is sound. Get one from a quality store and get it fitted to you. Good backpacks adjust to fit each person and some are even sized. (I used to sell them, and had to fit them, so plenty of experience.) A good store will help you weight the pack and explain how to pack it and let you come back from additional fittings if necessary.

    Water is HEAVY. Keep that in mind for however much you plan to carry. Know your water sources and only carry what you need. Have a good filter so you don’t have to lug as much around with you.

    Lastly, if you can lose any weight before you go, do it. Every pound you lose is a pound you don’t have to lug up and down with you on the trail. You’d be astonished what a ten pound weight loss will do for your trip.

    Have fun!

  50. 50
    a hip hop artist from Idaho (fka Bella Q) says:

    @Kay: Happy Birthday! I agree that there will be lots local changes in hopes of staying under the radar. Sadly, these folks have a long game and a pretty slick ground operation. It will not be pretty. I don’t have the same level of hope that Omnes has. I hope I’m wrong.

  51. 51
    Mnemosyne says:

    @LesGS:

    This last time she wore orange socks to work on that holiday.

    I hope she doesn’t work in Santa Monica. There are a lot of Irish Irish there (as in, first generation immigrants) from nasty places like Belfast and she could get the crap beaten out of her for that. :-(

    ETA: I’ve always heard bartenders and waitresses refer to 3/17 as “Amateur Night.”

  52. 52
    Plantsmantx says:

    @efgoldman:

    It’s more widely celebrated now than it was years ago. That’s especially true now that it’s become sort of a national holiday.

  53. 53

    Kay- Superior Hiking Trail by any chance? Hilly, rugged and beautiful and Violet has great advice. September is wonderful here but if it is leaf season you will have a lot of company (but there is still plenty of room to get away from them).

  54. 54

    @Kay: Happy Birthday Kay!

  55. 55
    Kay says:

    @dollared:

    Thanks. We go there a fair amount so I’ll expect it to get cold. I don’t mind anything above 30 degrees. It’s my favorite lake so that was really the “hook” to get me to try 5 days. I love Erie and Michigan too, but I don’t know that either of those would be as much of a draw for me.

  56. 56
    cmorenc says:

    The Fourteenth Amendment (equal protection) was passed by Congress on 3/2/1867, and ratified by enough states (3/4) to be adopted on 7/9/1868.

    The Fifteenth Amendment (right to vote) that the Voting Rights Act is based in substantial part upon, was passed by Congress on 2/26/1869 and ratified by enough states (3/4) to be adopted on 2/3/1870, both AFTER the 14th Amendment was already adopted. Plainly, the Fifteenth Amendment was adopted in substantial part because adopters did not regard the Fourteenth Amendment’s “equal protection” clause as adequate of itself to guarantee against measures designed to discriminate against or suppress minority (particularly black) rights to vote.

    In particular, the Fifteenth Amendment applies explicitly to states, and not just the federal government (section one) and section two speciically empowers congress to enforce the fifteenth amendment by “appropriate legislation”.

    With that unambiguous, inarguable historical background, there is no plausible constitutional basis whatever to sustain a judicial challenge to section five of the voting rights act, especially when they apply to the very states whose laws and practices the Fifteenth Amendment was most especially designed to address. Where in the Hell does “originalist” Justice Scalia pull the notion that SCOTUS has any power to second-guess the politics or wisdom of a section of the VRA that was renewed only seven years ago by a 98-0 vote in the Senate? Answer: completely from his ass, cause there is none.

    If a 5-4 conservative majority purports to overturn section 5 of the VRA, that majority has gone completely, illegitimately rogue with raw political activism, and has absolutely no right to any further respect for their integrity. They will be as much raw partisan as Karl Rove.

  57. 57
    efgoldman says:

    @cmorenc:

    Where in the Hell does “originalist” Justice Scalia pull the notion that SCOTUS has any power to second-guess the politics or wisdom of a section of the VRA that was renewed only seven years ago by a 98-0 vote in the Senate? Answer: completely from his ass, cause there is none.

    And when the team of Scalia, Roberts, Alito, Thomas, and Kennedy throw it out anyway, what’s the recourse? Neither this congress, nor likely the next one, will do a Lily Ledbetter for voting.

  58. 58
    Yatsuno says:

    @cmorenc:

    If a 5-4 conservative majority purports to overturn section 5 of the VRA, that majority has gone completely, illegitimately rogue with raw political activism, and has absolutely no right to any further respect for their integrity. They will be as much raw partisan as Karl Rove.

    Feature, not bug.

  59. 59
    lojasmo says:

    @Kay:

    You’ll probably be hiking 25 miles a day, remember. Good luck. Dip in the Gitchi Gumi for me. (hometown Duluth boy)

  60. 60
    e.a.f. says:

    It just never ceases to amaze me why people would want to disenfranchise others. Of course if they do, only they and theirs could vote and then “their” candidate would win. Just another version of keeping control like some of those dictatorships. Now some of those advocates for “identification” so only “real” voters get to vote, really must be nuts. Who the hell gets in a line up to vote, when they know they will be hasselled, unless they are genuine voters.

    In British Columbia, Canada, in our last provincial (state equivlent) election, in areas where people had difficulty having identification, (usually economcially and socially deprived areas) people were permitted to use a recent prescription bottle as secondary I.D.
    We didn’t have fraudulent voters. There weren’t any problems with voting.

    The more time goes by, the more the U.S.A. seems to be returning to its old habits. Not good optics and not good for the country.

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