SCOTUS Catch-all |

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So after striking down sections 4 and 5 of the voting rights act , Roberts said at the time that these decisions "in no way affects the permanent, nationwide ban on racial discrimination in voting found in [Section] 2

and yet it looks like section 2 is next up on the chopping block. I am not a lawyer so I would welcome an opinion from Super and our other board legal beagles :unsure:

www.rawstory.com

'Ominous' Supreme Court order buried in 'obscure' weekend filing: expert

A legal expert flagged an "ominous" order the U.S. Supreme Court slipped into view over a summer weekend that could even further erode voting rights.The court's intentions can be difficult to parse through cryptic orders or offhand comments justices make and the questions they ask during oral...
www.rawstory.com www.rawstory.com
 
heelinhell said:
and yet it looks like section 2 is next up on the chopping block. I am not a lawyer so I would welcome an opinion from Super and our other board legal beagles :unsure:
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I wouldn't be the entirety of section 2, just the part about electing minority candidates. Of course, that's in large measure because they already fucked up section 2 ruthlessly. [BTW, they didn't strike down section 5; it's just that section 5 is useless without a coverage formula, and that's what they struck down.]

Some thoughts:

1. My first instinct when I saw this last week was the same as Rick Hasen's: Citizens United redux. That's the most obvious inference. Why else would they call for briefing on this issue unless they are going to decide the case on that basis, and you wouldn't need briefing to maintain the status quo. Wrinkle: I don't know know whether it requires four or five votes to call for additional briefing. Since it only takes four to grant cert, one might think four is how many needed to call for additional briefing. But I suspect the difference between four and five isn't going to be part of this story.

2. The weird twist is that they just decided this very issue, on almost this exact same case, just two years ago. And for them to now hold that majority minority districts are unconstitutional would be to say that what they did two years ago was unconstitutional. That is, that they fucked up. I mean, I wouldn't put it past them and of course they will blame something else, but still -- why now?

3. In the case two years ago, Allen v. Milligan, Kavanaugh concurred. It was a 5-4 judgment that he joined almost all of, but not quite all. And here's how he closed that opinion:

the authority to conduct race-based redistricting cannot extend indefinitely into the future. But Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.

So the plaintiffs in this case (who are not the state of Louisiana -- it's the defendant!) raised that temporal argument, so now Kav has to consider it? I don't know, he could have considered it last time around. They are very selective as to when they decide issues not raised by the parties. He could also have asked for additional briefing them (I'm sure the four dissenters would have gone along with it). So why now?

4. Here's the best explanation I have: in 2023, the conventional wisdom was that minorities vote Dem. And so the majority-minority district requirement was actually a form of legally required gerrymandering that hurt Dems, because it required that black voters be packed into districts. I don't know the extent to which the racial gerrymanders still hurt Dems. It did once upon a time for sure; it might be possible now that with such surgical precision, creating majority black districts mostly overlaps with political gerrymandering. I don't know.

But if we go with the conventional wisdom, then in 2023, undoing racial gerrymanders would have helped the Dems.

Now? Well, the GOP did well with Latino voters, and Latinos also have protections against vote dilution in the form of majority-minority districts. And if Latinos are more or less a swing constituency, then undoing the gerrymander doesn't help the Dems.

AND, the place where the majority-minority district fucks up the most stuff is, by far, Texas. Nevada's districts would look the same with or without the Voting Rights Act. Same with New Mexico and I think Arizona. The Latino population is diffuse in those states and they don't have enough districts to pack and crack too much. Calheel knows way about the districting in CA than I do, so he can speak better to the issue there. But in terms of activity in court, it's Texas where this rule as applied to Latinos makes the most difference.

Anyway, so Texas is trying to redistrict again, right? And a thorn in the GOP's side is the need for majority-minority Latino districts. It interferes with their packing and cracking if they have to keep Latinos together. It would be a wash with regular districting, but this extreme redistricting is cutting so close to the bone that they need a sharper bone saw.

5. Is it a coincidence that Texas is doing this redistricting now, and the court decides now is the time to decide whether the VRA can impose requirements on redistricting? You be the judge. I wouldn't say the evidence is overwhelming for it being intentional as opposed to coincidental, so if I were dealing with an ordinary court, I would say, "eh, can't rule out coincidence." Which remains true, except the default has changed. The question is no longer whether you can rule out coincidence: rather, it's whether you can rule it in. Intentional fuckery should be considered the default baseline with this court, in my opinion.
 
superrific said:
I wouldn't be the entirety of section 2, just the part about electing minority candidates. Of course, that's in large measure because they already fucked up section 2 ruthlessly. [BTW, they didn't strike down section 5; it's just that section 5 is useless without a coverage formula, and that's what they struck down.]

Some thoughts:

1. My first instinct when I saw this last week was the same as Rick Hasen's: Citizens United redux. That's the most obvious inference. Why else would they call for briefing on this issue unless they are going to decide the case on that basis, and you wouldn't need briefing to maintain the status quo. Wrinkle: I don't know know whether it requires four or five votes to call for additional briefing. Since it only takes four to grant cert, one might think four is how many needed to call for additional briefing. But I suspect the difference between four and five isn't going to be part of this story.

2. The weird twist is that they just decided this very issue, on almost this exact same case, just two years ago. And for them to now hold that majority minority districts are unconstitutional would be to say that what they did two years ago was unconstitutional. That is, that they fucked up. I mean, I wouldn't put it past them and of course they will blame something else, but still -- why now?

3. In the case two years ago, Allen v. Milligan, Kavanaugh concurred. It was a 5-4 judgment that he joined almost all of, but not quite all. And here's how he closed that opinion:

the authority to conduct race-based redistricting cannot extend indefinitely into the future. But Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.

So the plaintiffs in this case (who are not the state of Louisiana -- it's the defendant!) raised that temporal argument, so now Kav has to consider it? I don't know, he could have considered it last time around. They are very selective as to when they decide issues not raised by the parties. He could also have asked for additional briefing them (I'm sure the four dissenters would have gone along with it). So why now?

4. Here's the best explanation I have: in 2023, the conventional wisdom was that minorities vote Dem. And so the majority-minority district requirement was actually a form of legally required gerrymandering that hurt Dems, because it required that black voters be packed into districts. I don't know the extent to which the racial gerrymanders still hurt Dems. It did once upon a time for sure; it might be possible now that with such surgical precision, creating majority black districts mostly overlaps with political gerrymandering. I don't know.

But if we go with the conventional wisdom, then in 2023, undoing racial gerrymanders would have helped the Dems.

Now? Well, the GOP did well with Latino voters, and Latinos also have protections against vote dilution in the form of majority-minority districts. And if Latinos are more or less a swing constituency, then undoing the gerrymander doesn't help the Dems.

AND, the place where the majority-minority district fucks up the most stuff is, by far, Texas. Nevada's districts would look the same with or without the Voting Rights Act. Same with New Mexico and I think Arizona. The Latino population is diffuse in those states and they don't have enough districts to pack and crack too much. Calheel knows way about the districting in CA than I do, so he can speak better to the issue there. But in terms of activity in court, it's Texas where this rule as applied to Latinos makes the most difference.

Anyway, so Texas is trying to redistrict again, right? And a thorn in the GOP's side is the need for majority-minority Latino districts. It interferes with their packing and cracking if they have to keep Latinos together. It would be a wash with regular districting, but this extreme redistricting is cutting so close to the bone that they need a sharper bone saw.

5. Is it a coincidence that Texas is doing this redistricting now, and the court decides now is the time to decide whether the VRA can impose requirements on redistricting? You be the judge. I wouldn't say the evidence is overwhelming for it being intentional as opposed to coincidental, so if I were dealing with an ordinary court, I would say, "eh, can't rule out coincidence." Which remains true, except the default has changed. The question is no longer whether you can rule out coincidence: rather, it's whether you can rule it in. Intentional fuckery should be considered the default baseline with this court, in my opinion.
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Thank you for weighing in:)

So should I be worried that SCOTUS may be taking up and deciding this case in 2026 ? Am I off base worrying that their decision may further weaken the VRA ?
 
heelinhell said:
Thank you for weighing in:)

So should I be worried that SCOTUS may be taking up and deciding this case in 2026 ? Am I off base worrying that their decision may further weaken the VRA ?
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Depends on what you mean by worried. I mean, it's almost a certainty that they will weaken it in some fashion. There's a very good chance they wipe it out. There's perhaps even more of a chance that they wipe it out when doing so benefits the GOP (which is to say that they might find some Louisiana-specific factor on which to rest their holding, and then later expand it in another GOP-favored case).

There's also something of a weird timing here. There's something called the Purcell principle, which counsels federal courts against changing election rules close to an election. Kav is a big fan, and also the swing vote here. So one would think that the Purcell principle would caution against requiring wholesale changes to voting district maps in an election year, given how much chaos that would create. Kav is the one conservative who sometimes cares about the disruptive effect of his decisions. Not that it necessarily stops him, but he has based opinions -- at least a couple -- on real-world consequences.

So it would not surprise me if the Court decimates the voting rights act but doesn't require new maps to be drawn until most redistricting is done in 2030.

But really, predicting what the Supreme Court is going to do has become impossible. At least for me. I have trouble imaginatively stooping that low.
 
superrific said:
Depends on what you mean by worried. I mean, it's almost a certainty that they will weaken it in some fashion. There's a very good chance they wipe it out. There's perhaps even more of a chance that they wipe it out when doing so benefits the GOP (which is to say that they might find some Louisiana-specific factor on which to rest their holding, and then later expand it in another GOP-favored case).

There's also something of a weird timing here. There's something called the Purcell principle, which counsels federal courts against changing election rules close to an election. Kav is a big fan, and also the swing vote here. So one would think that the Purcell principle would caution against requiring wholesale changes to voting district maps in an election year, given how much chaos that would create. Kav is the one conservative who sometimes cares about the disruptive effect of his decisions. Not that it necessarily stops him, but he has based opinions -- at least a couple -- on real-world consequences.

So it would not surprise me if the Court decimates the voting rights act but doesn't require new maps to be drawn until most redistricting is done in 2030.

But really, predicting what the Supreme Court is going to do has become impossible. At least for me. I have trouble imaginatively stooping that low.
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I was reluctant to speculate that the entire VRA could be wiped out down a short road. I feared I would be considered a chicken little.

Your post does not reassure me :eek: but it does reassure me that my fear has not veered into crazy town.

Thanks Super for your feedback and hope you and your family are doing well(y)
 
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