Supreme Court: Section 4 of Voting Rights Act Unconstitutional

[The Minsky Moment]

I thought you were saying in Voting Rights they deferred to states's rights but in DOMA they did not.

I did suggest that but I still don't know what has you puzzled. 
I am referring to the 4 justices who as majority in the VRA case emphasized the rights of the states to enact their own voting laws, but dissented in the DOMA case despite the apparent federal intrusion on the traditional state sphere to define the law of family relations.

[Admiral Yi]

Gotcha.

[Kleves]

I am referring to the 4 justices who as majority in the VRA case emphasized the rights of the states to enact their own voting laws, but dissented in the DOMA case despite the apparent federal intrusion on the traditional state sphere to define the law of family relations.

Doesn't that kind of cut both ways? I mean yesterday the dissenters were willing to defer to the learned judgment of Congress that the south in 2013 had precisely the same problems as the south in 1965, but in the majority today they said that Congress' action deserved no deference because they have suspicions about Congress' judgment and motivation.

[derspiess]

I am referring to the 4 justices who as majority in the VRA case emphasized the rights of the states to enact their own voting laws, but dissented in the DOMA case despite the apparent federal intrusion on the traditional state sphere to define the law of family relations.

Doesn't that kind of cut both ways? I mean yesterday the dissenters were willing to defer to the learned judgment of Congress that the south in 2013 had precisely the same problems as the south in 1965, but in the majority today they said that Congress' action deserved no deference because they have suspicions about Congress' judgment and motivation.

This is Languish, so you're supposed to ignore that.

[Razgovory]

That's okay, I have no idea what you were on about with "original sin".

The people who suppressed minority voters prior to 1965 are mostly dead and gone. The current leadership/citizenry of those states have inherited their sins, much like we all inherited Adam & Eve's partaking of the forbidden fruit.

But the law doesn't alter what people can do, only state governments.  And those are the same states.

[Admiral Yi]

Doesn't that kind of cut both ways? I mean yesterday the dissenters were willing to defer to the learned judgment of Congress that the south in 2013 had precisely the same problems as the south in 1965, but in the majority today they said that Congress' action deserved no deference because they have suspicions about Congress' judgment and motivation.

So Kennedy is the one honorable justice?

[Eddie Teach]

But the law doesn't alter what people can do, only state governments.  And those are the same states.

Governors and members of state legislatures are people. Politicians, granted, but still people.

[The Minsky Moment]

There's an interesting passage in the DOMA dissent that really shows how tangled up the Justices are in the various tensions in their positions:

But no one questions the power of the States to define marriage (with the concomitant conferral of dignity and status), so what is thepoint of devoting seven pages to describing how long and well established that power is? Even after the opinion hasformally disclaimed reliance upon principles of federalism,mentions of "the usual tradition of recognizing and accepting state definitions of marriage" continue. See, e.g., ante,at 20. What to make of this? The opinion never explains.My guess is that the majority, while reluctant to suggest that defining the meaning of "marriage" in federal statutes is unsupported by any of the Federal Government'senumerated powers,4 nonetheless needs some rhetorical basis to support its pretense that today's prohibition of laws excluding same-sex marriage is confined to the Federal Government (leaving the second, state-law shoe to bedropped later, maybe next Term).

Scalia is onto something here.  The phrase that not explicitly mentioned but implicity here is "commerce power."  Scalia knows that most of the majority doesn't want to say that Congress lacks authority over marriage laws because that would imply a diminution of the commerce power and its subordination to traditional spheres of authority between the feds and states.  He is highlighting a tension in the majority's reasoning that is just a little embarrassing.

Problem is - it is also embarrassing to Scalia, the originalist.  Because for the purposes of his dissent, he has to conclude that the federal government DOES have the power to enact marriage regulations.  And where exactly does that come from?  Scalia, who also doesn't want to say the magic word "commerce," relegates his answer to that knotty question to a very curious footnote:

4 Such a suggestion [no federal power over marriage regs] would be impossible, given the Federal Government's long history of making pronouncements regarding marriage—for example, conditioning Utah's entry into the Union upon its prohibition of polygamy. See Act of July 16, 1894, ch. 138, §3, 28 Stat. 108 ("Theconstitution [of Utah]" must provide "perfect toleration of religioussentiment," "Provided, That polygamous or plural marriages are forever prohibited").

My reaction:   
Utah's territorial status and admission as state were governed by Article IV Section 3 of the constitution, which vests in the Congress very extensive powers to make rules for the territories and to establish the terms, conditions for admission as state.  The Act for admission of Utah stems from that extensive authority.  The New States clause has been interpreted as giving Congress the power to vet proposed state constitutions - exactly what it did with Utah.  But that doesn't imply in way that Congress otherwise has plenary authority to make rules about marriage.  There must be some other source of authority for that.  And Scalia is silent what that authority is.

[The Minsky Moment]

[Doesn't that kind of cut both ways? I mean yesterday the dissenters were willing to defer to the learned judgment of Congress that the south in 2013 had precisely the same problems as the south in 1965, but in the majority today they said that Congress' action deserved no deference because they have suspicions about Congress' judgment and motivation.

Yes there is some tension both ways.  But I think it is a bigger problem for the anti-VRA pro-DOMA side.  In DOMA, Congress actually stated that a purpose of the law was to express moral disapproval for homosexuality.  And the act itself does nothing more than single out a particular subgroup for unequal treatment under law.  So there doesn't need to be a lot of analytical digging to reach conclusions about motivation - they are apparent on the face of the legislation.  But in VRA, the question was an empirical one: had the "covered" jurisdictions so significantly improved as to render the categorization irrational.  That is the kind of data-driven analysis that the Court tends to shy away from (well maybe not Breyer but I suspect he would read the data differently).  Indeed, I did a double take seeing Scalia and Thomas sign on to a VRA opinion that among other things, contains a spreadsheet and an analytical section interpeting the data.

[11B4V]

But why have it?

Because 11B4V thinks that having the outrageously high turnout of 49% means there must be tons of voter fraud going on I guess.

I did. How did you come up with that?

Dang you do?  I was trying to use sarcasm to attack you, I guess sometimes you just get lucky

No. Should have been a question mark. I sse you werent serious so no foul. 

[Siege]

There are times when I have patience for your hysteria and times when I don't.

Two questions for you, Yi:

Do you genuinely think that there's a significant issue with voter fraud that requires action to correct in the short term?

Do you genuinely think that these voter ID laws are not motivated by a desire to keep traditionally Democratic leaning voters away from the polls?

I got a question for you, Jacob.
Do you genuinely think that these illegal immigration annesty laws are not motivated by a desire to bring traditionally Democratic leaning voters into the polls?

[Valmy]

Do you genuinely think that these illegal immigration annesty laws are not motivated by a desire to bring traditionally Democratic leaning voters into the polls?

Oh they probably are.  But the difference is immigration is demonstrably a serious problem that needs to be addressed, whereas voter fraud is not.  And actually I am fine with things that reduce voter fraud...but not ones that put burdens on the voters.  They should be trying to make the process of identifying legal voters easier on the state's end.

[Siege]

How can people live without a fukin ID?

Dude, in Israel, if you don't have an ID, you are Fucked, dude.

[The Brain]

You are IDF?

[Siege]

You are IDF?

ID or Fucked?