Friday, November 12, 2004

The Supremes punt

Earlier this week, the Supreme Court of the US declined to hear a case regarding whether the disenfranchisement of felons runs afoul of the Voting Rights Act due to de facto minority discrimination. It's a touchy issue but one that needs to be addressed now that two US Courts of Appeals have come down on opposite sides of the matter.

States have traditionally been given broad authority to conduct elections as they choose, including determining voter eligibility, subject to minimum standards as spelled out in the Voting Rights Act and the Fifteenth and Twenty-Fourth Amendments; thus I can understand that the Supreme Court might want to defer on this issue. Furthermore, if the Supreme Court ruled with the Ninth US Circuit Court, the door would be wide open for lawsuits claiming discrimination based on the prevalence of higher spoiled ballot rates due to voting machinery employed disproportionately in minority precincts.

Despite the difficulties that could arise, the high court failed American voters in their decision not to hear this case. The fact is that your right to vote in a federal election depends on what part of the country you live in. If that doesn't trouble you, then consider instead that currently not all states are equal in their ability to determine voter eligibility. But more seriously, the outcome of the last two presidential elections might have been different if a uniform standard had been applied across the country. After the Bush v. Gore fiasco, I'm incredulous that the Supremes have passed on the opportunity to simultaneously atone for its past sins, greatly reduce the possibility that a similar case will come its way again, and restore a higher appearance of legitimacy to election results.


Blogger Justin said...

Frankly, I'm glad the SCOTUS chose to pass on this one...

First off, we have a Chief Justice too ill to actually appear for oral arguments yet not ill enough to refrain from voting-- he's even "authored" some of the majority opinions this term. I'd rather wait until Rehnquist resigns and gets replaced before hearing the more important cases.

Additionally, the SCOTUS would almost certainly strike down the 9th circuit decision and affirm the right of states to bar felons from voting. First off, there is no such thing as a federal election-- the President is elected by Electoral College voters elected in 51 local elections. If the SCOTUS decided that the federal government were in charge of voter qualifications, they would have to be in charge of voter qualification for every local election in the country, which clearly goes against the grain of the majority that has been expanding federalism in recent years. A more moderate decision that federal standards applied only to "federal" elections would result in absurd complications to the voting process where states would have to differentiate between eligible federal and state voters with different ballots for each-- you think the election process is screwed up now...

A SCOTUS decision that laws can discriminate based on results, rather than on intent, would also be a massive change in the status quo. Besides opening up challenges based on different voting technologies, which would compel every state to adopt uniform technologies, it would kill many of the affirmative action programs out there-- Texas's 10% solution, for example. The changes would be pretty wide-ranging.

11/13/2004 12:35:00 AM  
Blogger Eric said...

"I'm incredulous that the Supremes have passed on the opportunity to simultaneously atone for its past sins, greatly reduce the possibility that a similar case will come its way again, and restore a higher appearance of legitimacy to election results."

I'm not sure what sins you speak of. I don't see how this issue would reduce the probability of a Bush v Gore type case in the future. And I don't see a ruling on this making the elections appear to be more legitimate.

I agree with Justin... In a presidential election, you are voting for electors who will vote for the president (despite how much some states try to hide this fact). I can't think of any other election where people in two states vote for the same position.

Like it or not, the US is a conglomoration of states that agreed to be one country under certain terms. If those terms are changed, then you have to make sure that all parties are willing to go along with it. Otherwise, some states may choose to cancel their membership. Whether that would be a good thing or not is another issue.

11/15/2004 10:04:00 PM  
Blogger Vincent said...

It's time to get past the idea that voting is exclusively a states' rights issue, though. The federal government has curtailed some practices that states might want to institute (such as literacy tests) throuh the Voting Rights Act, which was especially designed to protect minority voters. Is the VRA constitutional? If so, then the idea that voter eligibility is an exclusively state matter no longer holds. If not, the Supreme Court could have slapped it down here. At this point, though, the Supreme Court would not declare the VRA unconstitutional, or it would have done so in one of the numerous occasions it has dealt with cases involving the VRA.

There is clear evidence that Florida's overreaching 2000 felon voter purge, which disproportionately disenfranchised both minority felons and minority non-felons (who are eligible to vote), was an intentional Republican ploy to influence the election; there is even clearer evidence that it actually did. Should state governments be allowed to knowingly take actions that disproportionately disenfrachise otherwise eligible to vote minorities simply for partisan purposes? It seems pretty clear to me that such a system is broken. It seems almost as clear to me that those actions are a violation of the VRA. But regardless of how the Court would have ruled, the VRA cannot be applied unequally in different parts of the country. (How effective would it have been if courts had exempted the South in the 1960s?)

11/16/2004 12:37:00 AM  
Blogger Justin said...


You're arguing issues that are completely separate from the issue at hand...

If we assume for the sake of argument that there was an orchestrated plot in 2000 to disenfranchise minority voters [b]because they were minorities[/b] by Republicans in state government, that would be a clear violation the VRA in every juristiction in the country. Whether or not felons must be allowed to vote is completely irrelevent to whether it is legal to discriminate against minority voters who are non-felons. Dead people and teenagers cannot vote, but purging the rolls of living, 18+ minority voters under the cover of removing the dead and the underage would clearly be a violation of the VRA.

If you were to bring the 2000 Florida case to court, however, assuming you could prove all the facts of the case, you'd have a major hurdle to overcome to establish intent. You would have to show that the Republicans discriminated against a group because of their ethnicity and not because of their politics. While scummy, it would not violate the VRA for the Republicans to attempt to disqualify likely Democrat voters merely because they skewed minority. Similarly, it would not violate the VRA for the Democrats to attempt to disqualify as many Cuban voters as possible on the grounds that the Cubans vote for Bush-- disqualifying them because they are Cuban, on the other hand, would create some problems.

Getting back to the issue at hand, while there are situations where the feds can interfere in local elections, the hurdle is (and should be) set very high. Some states have been barring felons from voting since their original colonial founding, others have allowed felons to vote for many years. I don't see a compelling reason at this point for the SCOTUS to enforce a uniform standard at this point-- I certainly don't see a compelling need to take this particular case at this particular moment in time.

11/16/2004 03:03:00 AM  

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