Voting Rights Act (1965) sec. 4 Overturned

I confess that the Voting Rights Act of 1965 is not at the top of my list of violations of the principal of federalism.  The problems that it sought to correct were real, they were horrifying, and they were a reminder that sometimes, in the fight between local government and national government, the national government is sometimes better.  But I have long felt uncomfortable with the manner in which the Voting Rights Act treated some states and counties as "special."  This has long seemed like a violation of equal protection, because VRA did not say, "States and counties that violate equal protection of the law will be subject to Department of Justice review of election procedures" but had a specific list, based on the situation in 1965.

As the Supreme Court's decision today in Shelby County v. Holder (2013) points out:

The Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem. Section 5 of the Act required States to obtain federal permission before enacting any law related to voting—a drastic departure from basic principles of federalism. And §4 of the Act applied that requirement only to some States—an equally dramatic departure from the principle that all States enjoy equal sovereignty. This was strong medicine, but Congress determined it was needed to address entrenched racial discrimination in voting, “an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.” South Carolina v. Katzenbach, 383 U. S. 301, 309 (1966). As we explained in upholding the law, “exceptional conditions can justify legislative measures not otherwise appropriate.” Id., at 334. Reflecting the unprecedented nature of these measures, they were scheduled to expire after five years. See Voting Rights Act of 1965, §4(a), 79 Stat. 438. 

It is no longer 1965.  Is there still racism in our society?  Sure.  But I don't find it plausible that the situation is even roughly similar today.  Blacks vote throughout the United States, and there are black elected officials at all levels of government, right up to the Oval Office.  There might well be state and local governments that require national oversight, but is it likely that the list is the same today as it was in 1965?  If there is a case for section 4 today, it isn't the same offending governments that it was in 1965, and Congress should either come up with an objective set of criteria for determining this, or admit that the preclearance requirement no longer makes sense.

And yes, the parallel to affirmative action in employment and college admissions is obvious.  It isn't 1965 anymore.

UPDATE: The Shekel has a discussion of local governments in Michigan that are subject to the preclearance requirements:

For those of us who didn't realize that Michigan was affected by the Voting Rights Act, and was under the misconception that the VRA applied to the south and not this most northern of northern states, think again.

Interestingly, both Buena Vista Township and Clyde Township were under VRA supervision but ironically, no one at the Department of Justice overseeing the enforcement of the VRA can explain nor remember why they were included under the VRA preclearance requirements in the first place... 

Until Tuesday, the small charter township [Buena Vista Township] in Saginaw County was one of just two Michigan jurisdictions included in the list of states and counties across the U.S. that were required to get federal approval for any kind of change in election procedures or practices under Section 5 of the Voting Rights Act, an attempt to remove poll tests or other obstacles to minorities reaching the ballot booth....

 

9th Circuit Rules That California Voters Can't Overrule California Courts

The 9th Circuit has ruled that the voters of California do not have the right to amend the state constitution to define marriage as "one man, one woman."  This is really no surprise; we have been headed down this road since Romer v. Evans (1996), where the U.S. Supreme Court ruled that the voters of Colorado did not have the authority to amend the state constitution to prohibit state and local governments from adding sexual orientation to antidiscrimination ordinances.

Somehow, for more than a hundred years, not only did no one notice the 14th Amendment's equal protection guarantee protected a right to homosexual marriage, no one noticed that it did not prohibit states from sending people to prison for homosexual behavior.  Nor did anyone even try to make that argument until the 1960s.

This is just judges making stuff up as they go along.

Did The Fourteenth Amendment's Equal Protection Clause Guarantee Equal Rights to Women?

I've been arguing with the usual liberals over at Volokh Conspiracy, and they got rather indignant when I pointed out that the "equal protection clause" of the 14th Amendment doesn't mean what they think it means:

Nearly all of our laws discriminate. The laws against robbery discriminate against those who take the property of others by force or the threat thereof. Our gun control laws discriminate against convicted felons, against minors, against U.S. citizens that have given up their citizenshp. School attendance laws discriminate against (or you might argue, in favor of) minors. They discriminate based on geography--you can't send your kid to a certain school unless you live in that district. Our laws discriminate based on age as to what public offices you may hold. Our laws discriminate against people who drive with more than a certain amount of alcohol in their blood--even if they haven't hit anyone yet!

The entire basis of law is discrimination based on criteria established legislative bodies and in some cases, by federal and state constitutions. The only reason that "discrimination" became a dirty word is because discrimination based on race was determined by a strong majority of those who decided to stay in the Union as wrong.

Now, you certainly regard discrimination based on sexual orientation as wrong. I would certainly agree that in many situations, it is wrong, and with a few exceptions, I don't regard such discrimination as particularly sensible. But equal protection of the law means quite a bit less than you think.

I pointed out that the evidence is quite clear that the primary focus of the 14th Amendment, as demonstrated by statements from both proponents and opponents, was protecting the rights of blacks, and secondarily, the rights of Unionist whites who either already lived in the South, or had moved there after the Civil War. (Amusingly enough, I have seen liberals defend the racism of affirmative action on the grounds that the 14th Amendment was intended to protect blacks--not whites. There's some merit to such an historical analysis, as offensive as the results might turn out to be.)

So, one of the liberals commenting over there decided to show his superiority over me by asking if the 14th Amendment prohibited discrimination based on gender. The answer is very clearly, "No." If it had, there would have been no need for the later amendment to the Constitution granting women the right to vote, and all this discussion of an Equal Rights Amendment a couple of decades back would have been completely pointless.

It is not that no one thought of this argument. There was a challenge in 1872 to Missouri's law limiting the vote to men that ended up before the Supreme Court in Minor v. Happersett, 88 U.S. 162 (1874). This was specifically raised on the "privileges and immunities" clause of the 14th Amendment, so it isn't strictly an equal protection argument, but the Court's position on this is essentially an original intent argument based on the fact that Congress passed the 15th Amendment to guarantee the right of male citizens to vote--something that suggests that the right to vote was not one of the "privileges and immunities" that the 14th Amendment protected. A similar argument, and a similar response, shows up in Bradwell v. Illinois, 83 U.S. 130 (1872), where a woman challenged an Illinois law that only licensed men to be lawyers.

As late as Goesaert v. Cleary, 335 U.S. 464 (1948), the Supreme Court upheld a Michigan law that prohibited woman from being licensed as bartenders unless they were the wife or daughter of the owner, and decided that this was no violation of equal protection:

The Constitution in enjoining the equal protection of the laws upon States precludes irrational discrimination as between persons or groups of persons in the incidence of a law. But the Constitution does not require situations 'which are different in fact or opinion to be treated in law as though they were the same.' Tigner v. State of Texas, 310 U.S. 141, 147 , 882, 130 A.L.R. 1321.

In short, as long as the statute's distinctions between different women in different situations had some connection to a perceived public need, there was no violation of equal protection--and certainly, the mere fact that the law discriminated against women as a sex was not an equal protection violation.