Tag Archives: rights

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.

Religious Persecution

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Finland Member of Parliament Päivi Räsänen and Lutheran Bishop Juhana Pohjola stood (still stand?) accused by Finnish prosecutor Anu Mantila of the heinous hate speech crime of quoting from the Bible.

Finnish district courts said, no, and acquitted the two. The prosecutor objected and took the cases to a Finnish appellate court—where the two were once again acquitted. Räsänen:

It isn’t a crime to tweet a Bible verse, or to engage in public discourse with a Christian perspective. The attempts made to prosecute me for expressing my beliefs have resulted in an immensely trying four years, but my hope is that the result will stand as a key precedent to protect the human right to free speech.

Mantila’s weasel-worded rationalization of her decisions:

You can cite the Bible, but it is Räsänen’s interpretation and opinion about the Bible verses that are criminal[.]

Well, no, they’re not, not within any universally recognized concept of free speech and opinion-uttering.

Mantila may well appeal again, to the Supreme Court of Finland. If she does, the case will cease to be a matter of prosecution (if it ever was); it will be naked religious persecution and a parallel direct attack on the principles underlying free speech.

Dangerous Settlement

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Bob Updegrove, a Virginia-based photographer, has settled his case against the State of Virginia and its Virginia Values Act, which barred “discrimination on the basis of sexual orientation and gender identity in housing, public and private employment, public accommodations, and access to credit. The Act includes denying folks their right to demur on the basis of their religious beliefs.

Citing the recent 303 Creative LLC v Elenis Supreme Court case, Updegrove’s case was ultimately dismissed by both parties in appeals court on the agreement that he would not be forced to take part in same-sex weddings.

Agreement. Settlements start out being dangerous, since they’re binding only on the parties to the litigation, and they depend on the agreeing parties adhering to their agreements. In the Updegrove case, the settlement does not prevent the State from enforcing its Act against other photographers, other graphic designers, or anyone else who objects to something based on their own religious beliefs.

Worse, it depends on Virginia’s AG, Jason Miyares’, word. Which he immediately exposed as questionable:

“As Attorney General, my highest duty is to the federal Constitution. I am pleased that with the settlement, the law is upheld at no cost to the taxpayers and Mr Updegrove’s First Amendment rights are preserved,” he added.
The attorney general, however, still maintains the authority to enforce the Virginia Values Act, including against Updegrove, based on conduct outside the complaint.

Updegrove’s First Amendment rights are not circumscribed by the bounds of this specific case. His rights extend throughout his life, yet Miyares has just committed to attempting to cut short those rights whenever he can find something outside this settlement on which to do so.

Better would have been to force the matter through the courts and get Virginia’s Act itself cut short on the basis of the Supreme’s 303 Creative LLC v Elenis ruling.

FISA and Search Warrants

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The House Judiciary Committee is moving to seriously revamp FISA, the Act that was set up to deal with    widespread privacy violations by the Federal government during the Nixon administration.  It was intended to enable the government to surveil foreign persons and to limit the government’s surveillance to those foreign persons, and it includes a secretive and secret court to enable issuance of search warrants supporting that surveillance. The Act was promptly abused by the FBI and the Feds’ intelligence agencies to spy on us ordinary Americans, also, most recently during the runup to the Trump administration and continuing throughout that term, and since.

The Foreign Intelligence Surveillance Court earlier this year declassified a report revealing that FBI agents had inappropriately searched Americans’ phone records more than 270,000 times over a two year period, alarming civil liberty experts and generating bipartisan condemnation.

Bad as that abuse is, it’s also bad that that secret FISA court had been hiding that abuse behind its “classified” wall. This secret, Star Chamber court has been contributing its own abuses to the Act: it has acknowledged that the FBI had overtly lied to it on a number of those warrants, but then it had not only exacted no punishment, it continued blithely to accept FBI agents’ word on subsequent warrant applications. All of that is on top of the fundamental abuse that is the secret nature of this court, which aside from violating the spirit, if not the letter, of our court system, allows it to inflict those other abuses on us ordinary Americans.

Any suitable reform of the FISA Act must include disbanding altogether FISA’s Star Chamber Court. To the extent that the government worries about getting a warrant would tip off the bad guys—and it’s a legitimate concern—Article III courts and State courts all know how to seal and protect warrants when that’s…warranted.

Federalism and State Taxes

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A Wall Street Journal editorial opens with this:

One great benefit of America’s federalist Constitution is policy competition among the states. Voters in Florida don’t have to live under New York’s laws, and Americans and businesses can vote with their feet by moving across state lines.

The editors proceeded to a description of State-level tax laws and the mobility of us Americans and our businesses in leaving States with high taxes in favor of States with, often markedly, lower taxes. But that lede overstates the case.

Federalism applies, often, with State taxes, but State-level business regulations are a different matter. It’s only necessary to see the outsize impact on our auto industry, for instance, or our pork industry, that California’s regulations have on vehicle requirements and on how hogs must be raised to see the lack of federalism in our regulatory environment.

With specific regard to California’s fuel requirements, there’s this from the Federal government’s EPA:

The Clean Air Act allows California to seek a waiver of the preemption which prohibits states from enacting emission standards for new motor vehicles.

The Federal government has long granted that waiver, and during the Biden administration, the feds made their latest move—overtly to refuse to rescind the waiver, effectively nationalizing a State regulation at the expense of federalism.

On the California’s hog-raising regulation, the Supreme Court upheld that regulation, which mandated the minimum space in which hogs must be raised, anywhere in the United States, in order for them to be marketable in California. The Court nationalized this State-level regulation—again at the expense of federalism.

If we’re going to preserve our federalist structure of governance, federalism must be restored to State regulations, as well as State-level taxes. Don’t look for any of that to happen under any Progressive-Democratic Party-dominated Federal government, though.