Category Archives: voting

A Voting Rights Discrimination Case

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The 8th Circuit has ruled that private parties cannot bring suit over voting rights discrimination under Section 2 of the Voting Rights Act; only the US Attorney General can. The 8th Circuit stands alone among courts and against long-standing precedent here. It’s still correct on the matter.

The court’s decision, in summary, said the

Arkansas branch of the NAACP and another organization couldn’t challenge the district lines drawn for the Arkansas House of Representatives after the 2020 census.

Circuit Judge David Stras, for the majority:

If the 1965 Congress “clearly intended” to create a private right of action, then why not say so in the statute? If not then, why not later, when Congress amended § 2?

Indeed. What does the text of the law say, rather than what do judges want it to say? What the law says, as Stras says, is clear. § 2 and the 15th Amendment to our Constitution both prohibited purposeful discrimination in voting rights and district boundary-drawing, and enforcement of that was put squarely in the hands of the US Attorney General and nowhere else. Congress subsequently amended § 2 to add a discriminatory-effects test. Congress did not, though, broaden who had authority to bring suit under the section, not even to add State Attorneys General, much less private parties.

My concern here, though, is the logic of the dissenting judge, Chief Judge Lavenski Smith [ellipses in the quoted part, which Smith is quoting from Singleton v Merrill, are Smith’s].

“Since the passage of the Voting Rights Act, federal courts across the country, including…the Supreme Court…, have considered numerous Section Two cases brought by private plaintiffs.” … Rights so foundational to self-government and citizenship should not depend solely on the discretion or availability of the government’s agents for protection[.]

Regarding that last, I repeat: what does the text of the law say, rather than what do judges want it to say?

Regarding Smith’s prior reference to precedent, he’s right about the importance of precedent. However, it doesn’t matter how long is the line for an existing court precedent; if the precedent was wrongly decided (or if the conditions warranting it no longer exist), that precedent is legitimately, and must be, overturned.

The 8th Circuit ruling can be read here.

The Way to End Racism is to Stop Doing Racism

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And that includes ending racial gerrymandering.

On Friday a Fifth Circuit panel heard arguments in a Voting Rights Act lawsuit (Robinson v Ardoin) that seeks to force Louisiana to draw a second majority-minority Congressional district. The case was put on pause while the Justices considered a challenge to Alabama’s map. Now the plaintiffs are using the Court’s Alabama ruling (Allen v Milligan) to advance an extreme racial gerrymander.

Never mind the 14th Amendment’s injunction that nor shall any State…deny to any person within its jurisdiction the equal protection of the laws.

Or the 15th Amendment’s Art I:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Or the Voting Rights Act’s Section 2, which prohibits election practices or procedures that discriminate on the basis of race.

The 14th Amendment bars discrimination on the basis of race—which setting up representational districts explicitly to favor one race over others does. The 15th Amendment makes that even more explicit: favoring one person’s right to vote over another’s explicitly abridges that other person’s right to vote.

As if those Amendments weren’t clear enough—and apparently social justice warriors in the general population and even our courts’ activist judges and Justices can’t read—the VRA is explicitly explicit on the matter.

The Supreme Court is badly mistaken in Allen. Either all American citizens are equal under law, or we’re not. Creating a legislature’s representation districts to favor one group of Americans over other groups is one of the last bastions of racism in our nation.

It Doesn’t Get any Clearer than This

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The citizens of California want to have a State referendum on taxes, specifically a vote on the Taxpayer Protection and Government Accountability Act, in November 2024. The Act would limit the State government’s ability to raise taxes on those good citizens.

Progressive-Democrat Governor Gavin Newsom has joined John Burton, ex-State Progressive-Democratic Party Chairman, in an emergency(!) petition to the State’s Supreme Court to get the initiative removed from that election. The measure if passed, Newsom and Burton worry, would gut the administrative state and shift the longstanding balance of powers in California back toward the State’s legislative branch.

Gut the administrative state. Increase the power of the citizens’ more direct representatives in their House and Senate.

To hell with democracy, especially to hell with representative democracy.

…voters will be harmed if the Measure appears on the November 5, 2024 ballot….

The State Knows Better and must not be constrained by these…commoners.

As goes California’s State Progressive-Democratic Party, so goes the national Progressive-Democratic Party.

This is what’s on the national ballot—however sotto voce—in 2024.

A Court Gets It Wrong

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Alabama’s legislature redrew its Federal House of Representative district lines, leaving the State with one black-majority district. The State’s courts objected and ordered the lines drawn, strongly encouraging a second black-majority district be created, since 27% of the State’s citizens are black. The State’s legislature sort of obliged, creating a second district with 40% of its voters being black.

A three-judge Federal panel (which The Wall Street Journal identified as a special three-judge district court) rejected the new districts. It’s on this point that I think the court got things badly wrong, and if the AP article is accurate, exposed the intrinsic racism in the way district lines are drawn.

The panel said that if Alabama’s legislature didn’t draw lines that suited the judges on the panel, that panel would draw the lines for them. It

ordered a special master and cartographer to draw new maps that comply with the Voting Rights Act in time for the 2024 elections, saying it would be futile to give the state Legislature a third chance to draw districts that didn’t disenfranchise Black voters.
“We do not take lightly federal intrusion into a process ordinarily reserved for the State Legislature. But we have now said twice that this Voting Rights Act case is not close,” the court said.

This is what our Constitution’s Article I, Section 4, says about that sort of thing:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof….

What the US Supreme Court ruled when Alabama’s original newly drawn districts got to it was that courts could, indeed, reject a legislature’s districting, but it did not rule that courts could draw the districts themselves—all courts may do is return the matter to the State’s legislature. This three-judge panel has no authority to draw its own districts or to designate party separate from Alabama’s legislature to draw them. All this panel can do is serially reject the legislature’s districts. Our Constitution has a solution for this, as well. The 14th Amendment, Article 2, is quite clear:

[W]hen the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

If Alabama lacks a court-approved set of districts, then all of its citizens (the 19th Amendment eliminated the restriction to “male inhabitants”) are denied their right to vote, and Alabama would lose all of its representation in Congress.

The intrinsic racism in districting “requirements”—including in the US Voting Rights Act which governs—is this AP summary of the panel’s ruling:

[T]he State should have two districts where Black voters have an opportunity to elect their preferred candidates. Because of racially polarized voting in the state, that map would need to include a second district where Black voters are the majority or “something quite close,” the judges wrote.

The only racial polarization in voting is the creation of the Voting Rights Act and the several courts’ rulings that insist certain races of US citizens should get special treatment in voting. Either all American citizens are equal under our Constitution and our laws, or we are not. To insist that some races must be treated differently in our voting laws can only be racist.

As the Supreme Court has ruled, more than once, Eliminating racial discrimination means eliminating all of it.

Full stop.

Not So Massive

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Georgia thinks it can’t update its Dominion voting machines in time for a major election in 17 months because the task is so massive. The State’s government men and women are aware that

Dominion voting machines had significant vulnerabilities, which led the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) to issue a public advisory last year based on the findings.

But it’s too hard to fix in the time available, they claim. This is a copout.

It’d be straightforward for Georgia to switch to paper ballots and hand counting; although the time to make that switch is now, given the time required to get the relevant folks hired and trained up, along with the relevant volunteers volunteered and trained up.

This is the Georgia Governor and Secretary of State making the conscious decision to keep in place a known-to-be-not-secure voting system. This decision is made doubly bad by Georgia’s status as a swing State in closely contested national elections.