More thoughts on the VRA

[muon2]

We might as well start hiving out separate ballots based on race. Apparently one can only be represented by someone who looks like him or her.

I know you're being sarcastic, but it's important to remember that the current interpretation of VRA districts has absolutely nothing to say about the race of the person elected, only if that person is the candidate of the community's choice.

Corrected:

"I know you're being sarcastic, but it's important to remember that the current interpretation of VRA districts has absolutely nothing to say about the race of the person elected, only if that person is that race's choice."

Since when did the Constitution allow the government to decide which races, in what places, shall dictate the results of an election?

Amendment XV, Section 2

Section allows Congress to enforce section #1, which reads

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Sorry, the Fifteenth Amendment enshrines the right of citizens to vote in elections, not a right to win. The candidate of choice of the majority of voters is the candidate elected per the Constitution.

I know that you (and many others) would like a narrow reading of the text of Amend XV Sect 1 to refer to only the act of voting. Whether anyone likes it or not, politicians have shown since the earliest years of the republic that they could very effectively make that act of voting meaningless for specific groups of individuals by diluting their voting strength through the drawing of districts. Elbridge Gerry gave us the gerrymander doing this to his political opponents.

In the case of race, southern states were very effective at negating black votes long after the Civil War by fracturing communities to dilute their power through racial gerrymandering. Congress and the courts both agreed that this is just as much an abridgement of the right to vote as a poll tax. So by the power conferred by the fifteenth amendment, this the law.

I get your ranting at what seems to be an anachronistic remedy from a bygone era. However, the art of gerrymandering is still very much at work, and would touch on any group that shows voting patterns to take advantage of. Note that there are areas of the country where there have been findings that racially polarized voting is not a factor, and in that case section 2 of the VRA need not apply. I think most people would like to see the day when section 2 would be inapplicable throughout the country. The data shows that such a day is not yet here.

[muon2]

I know that you (and many others) would like a narrow reading of the text of Amend XV Sect 1 to refer to only the act of voting. Whether anyone likes it or not, politicians have shown since the earliest years of the republic that they could very effectively make that act of voting meaningless for specific groups of individuals by diluting their voting strength through the drawing of districts.

Again, I will note that this is equally the product of democracy. Communists don't win. Mormons, Jehovah Witnesses, and Seventh Day Adventists have really problems winning. Majorities win elections at a great rate greater than their share of the population, and minorities win elections at a lower rate than their share. I don't think that means Jehovah Witnesses are entitled to relief for discrimination against their religion, or Communists for discrimination against their creed. I sure hope the average communist casts a "meaningless" ballot for the balance of his natural life.

I agree that the groups you mention would not be entitled to special treatment with respect to elections since they are not singled out in the fifteenth amendment. Religious groups could seek a remedy if the government actions resulted in an infringement of their first amendment rights.

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Well, there was that bit about poll taxes and literacy tests.

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Wait. The VRA was a Congressional statute, not a judicial act. The poll tax was eliminated by the Constitutional amendment process.
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SCOTUS had indicated that it wouldn't accept a legislative remedy to bar the poll tax, so an amendment was the only recourse. SCOTUS has accepted the VRA as a legislative remedy, so Congress did not need to pursue an amendment. This seems consistent with proper constitutional function to me.

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This assumes that none of the challenges the VRA faces ever end in the act being further declared unconstitutional. Certainly, that is my preference.

There really are serious problems with the VRA.

1) Individuals have rights, not races.

2) It is unacceptable for the legislature to dictate partisan outcomes to the states. Nor, is it acceptable for the government to question the voting patterns of the electorate.

3) The act is based on the model of Blacks being overwhelmingly Democrat. Hispanics and Asians aren't. When the Justice Department demanded that the only Hispanic Republican in Texas be gerrymandered out of his seat, that, following your reasoning, was the complete "abridgement" of the rights of Hispanic Republicans.

4) It doesn't eliminate racially-motivated gerrymandering against minority Republicans. There really are prejudicial attitudes towards minority Republicans by many Democrats. Often, if a minority is conservative and Republican, they are smeared for being an "Oreo," "banana" or such. That animus could result in such Republicans being disproportionately targeted for elimination by gerrymandering. If we are going to outlaw racial motivations in redistricting then every racial motivation should be outlawed.

5) Interpretations of the VRA are being put forward that are blatantly unconstitutional, rather than merely being Constitutionally suspect. Claims that the preferences of the majority of a minority carry more weight than the preferences of the electorate are clear violations of equal protection before the law. There is a large element of partisan hypocrisy in this regard. A bifurcated standard is being put forward that focuses on minorities being decisive in the general election, but, not in the primary. In case anyone has forgotten, the VRA was passed to protect Black Democrats in the Democratic primary. That seems to have been conveniently forgotten.
If the VRA goes down in whole, it will be much as an act of suicide as homicide.

6) It has been 46 years since the VRA was passed. I don't think there is a single legislator in the country that was serving in 1965. A some point it is not acceptable to target the members of some legislatures because of their geographical location, or the acts of their predecessors.
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I agree that there are provisions of the VRA that should be amended, precisely because this is no longer 1965. Section 5 preclearance is one of the most obvious ones to me. I think that SCOTUS recognizes some of what you note as well in its decisions to date. For instance the Gingles test clearly points at a restriction in the scope of the VRA as jurisdictions show that race-based behavior in that jurisdiction have diminished.

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Pejorative buzzwords ["ranting" "anachronistic" "bygone era."] strung together that have absolutely nothing to do with my position.

My position rests in fidelity to the Constitution. The Constitution is not "an anachronistic" document from "a bygone era." It is the basis of our Republican form of government.
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My statement was directed at your statements towards the VRA, not the constitution. Your analysis ahead of this (see point 6) would indicate that you do find the VRA anachronistic.

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I submit that this is a false alternative. Witness the filibuster of "conservative" Bush II judicial nominees by the Democrats in the Senate. There simply was a lower threshold for filibustering a minority nominees than there was for White nominees. That is, there was clear-cut discrimination against folks like Miguel Estrada become of their race. Presumably, somewhere in the Reconstruction Amendments there is a right for the Congress to protect the right of a Japanese-Hispanic not to be disqualified from serving on the Federal Courts simply because of his race. They don't seem to have passed that law. You don't see filibuster requests submitted to the Justice Department for pre-clearance.

Frankly, what happened to Estrada was racist, and odious, but, I don't see any Constitutionally acceptable recourse. If racism can inject itself into the Senate, if Senators are free to be as racist as they choose, then, in the privacy of voting booth, every individual should be free to be their potty little selves. I reject as false the premise that the world has to be perfect before people are entitled to be free.
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I submit that this particular response doesn't follow my statement. The VRA does not regulate racially-motivated behavior by Congress. Congress has the power to regulate themselves, but haven't done so. Clearly that is the case you describe, odious as it may be. One can view that as a double standard on the part of Congress, but the Constitution permits that.

[muon2]

Section allows Congress to enforce section #1, which reads

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I know that you (and many others) would like a narrow reading of the text of Amend XV Sect 1 to refer to only the act of voting. Whether anyone likes it or not, politicians have shown since the earliest years of the republic that they could very effectively make that act of voting meaningless for specific groups of individuals by diluting their voting strength through the drawing of districts. Elbridge Gerry gave us the gerrymander doing this to his political opponents.

In the case of race, southern states were very effective at negating black votes long after the Civil War by fracturing communities to dilute their power through racial gerrymandering. Congress and the courts both agreed that this is just as much an abridgement of the right to vote as a poll tax. So by the power conferred by the fifteenth amendment, this the law.
e inapplicable throughout the country. The data shows that such a day is not yet here.

Fundamental to citizenship is the right of self-identity and self-expression.  Race-based classification of individuals deprives them of their self-identity and self-expression, and effectively their citizenship.

"citizen" is reduced to "person born in the United States or naturalized" and the granting of any rights a matter of law by the government.

I ask you once again.  What if the Congress wished to actually enforce the 14th Amendment, and 2 U.S.C. § 6, how would you calculate the number of citizens whose right to vote was abridged?   What if Congress decided to levy civil fines based on the abridgement of the right to vote, and distribute the money to the supposed victims.  How would you determine who and how many were victimized?

I think it would be difficult to come up with a number. If Congress did pass such a law in a constitutional form I would expect a number of court-directed clarifications. Probably not unlike the string of VRA decisions.

[muon2]

I am not aware of a single state legislator whom was serving in 1964. Whatever guilt they had, there is no basis for assigning it to their successors.

This is a point on which we agree. Whether you object to it as a matter of the initial passage in 1965 seems moot to me, the courts have decided that question. The question as to whether section 5 pre-clearance should remain in law is not moot, and I expect it to be litigated based on the current round of maps and Congress' insistence on leaving section 5 in the VRA when it was last renewed in 2006.

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Here we will disagree. I find recent decisions on the VRA moving it away from the broad interpretation given in its early years. Consider as examples the 2009 SCOTUS decisions of Bartlett and Northwest Austin Municipal Utility District. Both gave greater freedom to the mapping jurisdictions.