Section V is on the ropes

[True Federalist (진정한 연방 주의자)]

http://www.politico.com/story/2013/02/voting-rights-act-under-fire-at-supreme-court-88178.html

Based on their questions and statements Wednesday, Roberts, Scalia, Kennedy and Alito seemed likely to strike down the disputed part of the Voting Rights Act.

I suspect there will be some new fresh redistricting.

Doubtful there will be redistricting resulting from the case.  Section 5 only concerns preclearance. Districting would still be subject to section 2.  Also, I don't think the ultimate decision will strike down the concept of preclearance.  What Kennedy's questioning indicates is that he is troubled, and rightly so, about using antique data to determine which jurisdictions are subject to preclearance.  Hopefully, the court will give some guidance as to how recent the data used needs to be so that Congress doesn't have to play a guessing game when they revise section 4 (which specifies which jurisdictions are presumed to need to seek preclearance) to comply with what I think will be the probable ruling of the court, which is that using data from 1972 and earlier to decide which jurisdictions need be subjected to the hassle of preclearance is data that is too old to form a rational basis for determining the need for preclearance of changes undertaken now.  The court gave fair warning in Northwest Austin about its concerns over the use of old data, probably so as to give Congress a chance to amend the VRA to deal with their concerns.  Now it will do what it hinted at in that prior case since Congress failed to act.

[True Federalist (진정한 연방 주의자)]

Rick Perry is allegedly planning a special session for such redistricting.

Which the outcome of this doesn't really affect.

With Texas having to preclear, the steps that would be required to pass a redistricting plan would be:

1. Pass a plan.
2. Submit it to DoJ for preclearance.
3. If DoJ rejects the plan or sits on it, Texas files a suit.
4. Once past the DoJ hurdle, deal with the suits from various civil rights organizations, if any.

Without preclearance, what would happen is:

1. Pass a plan,
2. Deal with suits from the DoJ and/or civil rights organizations.

No matter the outcome of this case, the protections of the VRA will still be in force.  This suit is all about the process used and how much bureaucracy is kept in place. Any redistricting plan that would pass muster under one process would pass muster under the other.  What this case will actually affect are various minor election rules and regulations. that can be a burden but which no one tends to think are important enough to file suit over.  For those regulations, the removal of DoJ preclearance is potentially a problem, but I don't think it will be.   We're not in a raceless utopia by any means, but we're not stuck in the 1960s either.

[True Federalist (진정한 연방 주의자)]

Is the existing map legislative-drawn or court-drawn?  If they are replacing an existing legislative-drawn map, I think it is quite possible an injunction to use the old map could be issued as part of any case that might be brought against a new map if it has a chance of succeeding.  Also, if Texas times the passage of their map to intentionally hold an election before an S2 case can be resolved, then I could easily see that being used as a justification to change the law so that S2 cases could provide the same level of procedural delay as S5 preclearance does now.

Preclearance is a burden I would like to see gone, but if it struck on either a temporary or permanent basis, then yahoos trying to game the system could well see it being brought back, with their shenanigans being the evidence used to prove there is a rational basis that it is still needed.  Preclearance was included in the VRA precisely because previous civil rights legislation had been playing whack-a-mole.  One abuse would be dealt with and another would be inserted in its place.

[True Federalist (진정한 연방 주의자)]

If the Supreme Court dares to strike it down, this will be the Dred Scott of 21st Century.

Excessive hyperbole?

I seriously doubt the Court will strike down preclearance altogether.  What they will do is like they did with the death penalty in Furman v. Georgia rule that Section 5's implementation is flawed, most particularly in its use of forty-year-old data to determine which jurisdictions are subject to preclearance.  The Court warned Congress about their concerns in Northwest Austin, but Congress ignored them. Once Congress passes a revision to the VRA to use more recent data, I expect Section 5 to be back in business after a brief blip.

[True Federalist (진정한 연방 주의자)]

Once Congress passes a revision to the VRA to use more recent data, I expect Section 5 to be back in business after a brief blip.

That's funny, expecting this Congress to pass something having to do with voting rights.

The VRA is a reasonably popular law and the GOP will not let the Democrats use it as a cudgel to paint them as racist by blocking a fix if the court indicates one can be done.  If the court rules as I expect, that requiring preclearance is fine, but basing the requirement on four decade old data is not, then I expect them to quickly revise section 4 so that instead of using data from 1964, 1968, and 1972, it uses data from 2004, 2008, and 2012.  It's not in the GOP's political interest to block a fix.

[True Federalist (진정한 연방 주의자)]

One thing I've never understood is why Arizona is required to pre-clear. There are barely any black people there to disenfranchise, and there certainly weren't any when the law was passed. Was there some sort of discrimination against Hispanics going on there?

Yes.  The test for whether a jurisdiction would be subject to preclearance was the percentage of the voting age population that was registered to vote.  With a requirement for English language literacy keeping Hispanics from registering, Arizona fell subject to it.  It's also why three of the New York City boroughs are subject to preclearance.  The electoral law in 1964 kept many Puerto Ricans who had moved there from voting in New York.

[True Federalist (진정한 연방 주의자)]

Would such a Republican gerrymander even be doable if they had the votes to do it?

[True Federalist (진정한 연방 주의자)]

Once Congress passes a revision to the VRA to use more recent data, I expect Section 5 to be back in business after a brief blip.

That's funny, expecting this Congress to pass something having to do with voting rights.

The VRA is a reasonably popular law and the GOP will not let the Democrats use it as a cudgel to paint them as racist by blocking a fix if the court indicates one can be done.  If the court rules as I expect, that requiring preclearance is fine, but basing the requirement on four decade old data is not, then I expect them to quickly revise section 4 so that instead of using data from 1964, 1968, and 1972, it uses data from 2004, 2008, and 2012.  It's not in the GOP's political interest to block a fix.

Developing a formula from that data could be contentious though, right?  Back in 1965, the formula used seemed to coincide relatively well as a proxy for those places considered most discriminatory anyway.  Now it's less clear which parts of the country are most susceptible to discriminatory practices and whether there is a formula that can reflect it accurately. 

Yes it would be tricky, and attempting to update the formula when the VRA was up for renewal would have likely left the GOP open to charges of being soft on racism, which is likely why the leadership didn't push for an update then,

[True Federalist (진정한 연방 주의자)]

You can't predict SCOTUS cases based on the questions asked.

All the questions did was confirm that a majority of the court hadn't changed their mind since Northwest Austin.  The court made it clear then that they were troubled by the basis used to determine which jurisdictions would be subjected to preclearance, but they found a procedural out so as to avoid a period of time in which preclearance would not be required and warned Congress to mend its ways and update the VRA to use relevant data.

[True Federalist (진정한 연방 주의자)]

To me, it seems like the VRA is entirely consistent with the Constitution, as read through the 15th Amendment. As it states: "The Congress shall have power to enforce this article by appropriate legislation." This should easily afford Congress broad latitude to pass laws relating to the first section of the amendment (i.e. race and color). Without preclearance, it's almost a guarantee that several states will go back to the whack-a-mole strategy of the pre-VRA era.

It'd be far easier for the Court to reject this suit considering that Shelby County, Alabama is not the proper plaintiff. As it was mentioned during oral arguments, even the most basic regulations would take in Alabama (and most definitely Shelby County). If Section 5 is to survive this case intact, I could possibly see Justice Kennedy taking that route. It seems like he's uncomfortable with Section 5, but perhaps not enough so to essentially eradicate it.

I can't speak to Shelby County in particular, but if one were to apply the standards in the VRA, but replace 1964, 1968, and 1972 with 2000, 2004, and 2008, Alabama would not be subject to statewide preclearance.  They had over 50% of the voting age population vote in all three of those elections.  [The atlas does not yet have the 2012 numbers.]

2000 had by far the lowest turnout of those three elections.  Here's a map with the states in green having below 50% of the VAP voting in 2000, but over 50% in both 2004 and 2008 while the states in yellow were below 50% in 2000 and at least one of 2004 or 2008.

[True Federalist (진정한 연방 주의자)]

Is that the actual test required by Section 4? I haven't really dug through the oral arguments, but I do recall it being mentioned that almost any standard would capture Alabama (and thus, force any possible constitutional issue to be settled on preclearance itself). I'll agree that that the areas captured by Section 5 do seem to be somewhat arbitrary and antiquated. However, I don't think looking at that data takes in the whole picture. You might have to take into account any possible prophylactic effect that the VRA creates through Section 5. The standards may be flawed, but I don't see that as reason enough to render Section 5 essentially unenforceable in the absence of Congressional action. Section 5 simply places the burden of proof upon the state or local jurisdiction, which I think should be found entirely consistent with the enforcement provision of the 15th Amendment (not to mention the Elections Clause).

From a policy standpoint, I think it would be preferable if Section 5 applied to all 50 states.

Yeah, the VRA uses a 50% threshold, tho jimrtex indicates that I used the wrong dataset and that with the correct one, only Hawaii would not pass that level.  Of course 50% is fairly arbitrary and could be raised in a Congressional rewrite.  Indeed, because the Court should not be second-guessing how Congress would rewrite the bill if it is forced to, rather than whether Shelby County itself would be covered under a rewrite, I see the relevant questions as being:

1) Is preclearance constitutional, provided a rational basis for determining which jurisdictions are subject to it is given?

and

2) Is how the 2006 renewal of the VRA decides which jurisdictions are subject to preclearance done in a manner that has a rational basis?

Other than maybe Thomas, I don't think any of the justices would deny the constitutionality of preclearance per se.  Maybe Scalia or Alito would hold that there is no possible rational basis for imposing it now but I doubt that even if they think that to be the case that either would put it in an opinion.  However, I think it probable that the court will tell Congress to update how preclearance is determined and might even stay striking the current method of determining until the end of the 113th.  That the court did not want a period in which preclearance was not in force was no doubt part of the reason they used Northwest Austin to send Congress a signal, which Congress of course ignored.

I don't think preclearance for all would pass constitutional muster, tho a standard so tough it had that effect might.