The Right To Vote

Last week, the United States Supreme Court heard a case involving the Voting Rights Act of 1965.  The case, Shelby County v. Holder, challenges the constitutionality of Section 5 of the law which requires states with a history of voting discrimination to get pre-clearance from the federal government before making any voting changes.  The states in particular involve southern states where Jim Crow laws were in place in the 1960s.  The law can apply to local jurisdictions, and it can apply to an entire state.

The case comes from Shelby County in Alabama, and they challenge that voting discrimination isn’t as prevalent in the South as it once was and there is more evidence of voter discrimination in other parts of the country where Section 5 does not apply.  Liberals are up in arms as this is one of the landmark civil rights bills signed during the Johnson administration and claim that there are still cases of voter discrimination in the south and that without these laws, reports of such discrimination would increase again.  Conservatives use the argument that voter discrimination is not just in the south and that if the law remains, it should be in effect everywhere , but overall the law isn’t needed anymore and that areas that require pre-clearance to make changes should not be required to do so.

supreme-courtThe reason for the Voting Rights Act of 1965 is quite important here.  The law targeted localities and states that had laws that were aimed at keeping African-Americans from voting.  In its wording, it is similar to the 15th Amendment to the US Constitution which gave African-Americans the right to vote.  Southern states found ways around the amendment by not making it illegal for African-Americans to vote.  They wrote voting laws that targeted the African-American community more than others, such as literacy tests.  The law was last renewed in 2006 for another 25-years though Republicans then argued that the pre-clearance part of the legislation should be allowed to expire since the states had done away with the practices that that section had been written to eradicate.

According to website for the Civil Rights Division of the Department of Justice, there have been approximately 195 cases filed under the Voting Rights Act from 1978-2013 with 15 of those having a settlement…not including the Shelby case.  Of those cases, a vast majority of them came from non-southern states.  For the sake of writing this, states that were part of the old Confederacy or had Jim Crow laws are considered southern states.  Yes, there are more non-southern states than southern states, so proportionally, the number would be higher.  The numbers aren’t in proportion, though.  It does indeed make the claim the Shelby case is trying to make in that there are more violations (cases) involving the Voting Rights Act from non-southern states; therefore, Section 5 should apply to them as well.

The talk today is of Voter ID laws which some say are discriminatory and are unconstitutional under the Voting Rights Act of 1965 as it disenfranchises those that are young and poor.  It’s a conservative-led effort that liberals claim is designed to undermine their voting demographics in large urban areas… which is usually where the poor tend to live and is usually made up of minority groups such as African-Americans and Latino voters.  In essence, the Voter ID debate has become the new voting rights debate.  Is it possible to have Voter ID laws without disenfranchising minority voters?  Some of the bigger states that are debating these Voter ID laws fall outside the South… with the exception of Virginia.  These states include Pennsylvania, Ohio, and even Missouri.  As a result, they don’t fall under Section 5 of the Voting Rights Act and wouldn’t need pre-clearance for such things.  It doesn’t take a fortune-teller to know that if any state passes a Voter ID law that it will end up in the courts before the ink is even dry.  The state of Texas already had its Voter ID law struck down by a federal court in 2012.

The Shelby case does bring up the question as to whether the Voting Rights Act of 1965 along with Section 5 is still relevant in today’s times.  With the deep political divides that currently engulf our country, the two main parties look for any opportunity to give themselves an advantage, and this could come in the form of disenfranchising the other side’s voting block.  With the current Voter ID debate taking place, it does show a need for the Voting Rights Act.  It even shows the necessity of Section 5; however, it also proves that the law needs to be upgraded for today’s time.  It’s not 1965 anymore.  If Section 5 is to remain, it should be in place for every state as the evidence has shown that the cases brought up in violation of the law aren’t confined to the South only.  There should never be any effort to disenfranchise any citizen from exercising their right to vote no matter which state they reside in.  Voting is a right and not just a privilege.

Voter Fraud – ABC News
Civil Rights Division Voting Cases List


A Taxable Penalty

Is it a tax or is it not?  The Supreme Court has said yes and thus is constitutional.  In 2009, President Obama said that it wasn’t repeatedly.  Republicans said that it did not fall under the Commerce Clause for the Congress to pass such legislation, and therefore, wasn’t constitutional.  There have been so many different angles coming at us these past couple of days over the Affordable Care Act (“Obamacare”), that one’s head might start spinning in circles if it came to making sense of any of it.

President Obama did in fact say in 2009 on “This Week with George Stephanopoulis” on ABC that the Affordable Care Act wasn’t a tax.  Democrats in Congress even made the same point.  But that came down to semantics.  The word used throughout the legislation was ‘penalty,’ and it only applies to those that don’t have health insurance.  Knight professor of Constitutional Law and the First Amendment at Yale Law School, Jack M. Balkin, wrote the following in an op-ed for CNN:  “If the Affordable Care Act imposed a mandate, it was ordering people to buy insurance, and nobody likes to be told what to do by the government. But if it was a tax, then it actually gave people a choice: Pay a small tax, or buy health insurance.”  Republicans like to make the charge that the Affordable Care Act is government-run/socialist healthcare, and they’ve managed to stick to that message and get people worked up over it (hence how we now have the Tea-Party wing of the Republican Party).  Most First World nations (and others) actually have government-run/socialist healthcare, and one should go look those countries up before making such a claim here.  So here is my question to this.  How is the Affordable Care Act government-run/socialist healthcare when people still have the right to choose which healthcare provider and plan they wish to go with?  The government isn’t forcing us to buy healthcare from itself since there is no public option.  For those on Medicare and Medicaid, which are government run healthcare programs, this law doesn’t really concern them.  It also doesn’t affect those with company healthcare.  It mostly goes after those that buy healthcare on their own… whether they choose to or have to.  It does have far bigger reaches such as covering pre-existing conditions, covering dependents until they are 26, etc., etc.  (click here for more information)  If one were buying individual health insurance, they will now be able to enter into an exchange that will allow them to be like a company with bigger numbers for better prices rather than just being one person.  It’s often the lone individual that gets stuck with higher premiums.  The consumer still gets to choose which health insurance they wish to purchase or even choose not to and pay the penalty.

“The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; […]” Article I, Section 8 of the US Constitution

So now that it has been determined that the Affordable Care Act was essentially taxing people that didn’t have health insurance (despite the term ‘penalty’ being used), it now just needed to justified by providing for the general welfare.  In the end, five justices of the Supreme Court ruled that it did and therefore fell under the powers of Congress.  Again, I go back to the op-ed on CNN from Jack M. Balkin…

“The answer to that question was also pretty clear. Congress wanted to give all Americans a new set of consumer protection rules that prevented insurance companies from denying coverage for pre-existing conditions and imposing lifetime caps on coverage. The only way to make those reforms work, Congress thought, was to get more people in the national risk pool. Hence, Congress decided to give uninsured people a nudge instead of a direct order: It taxed them if they didn’t buy insurance.”

With the Supreme Court ruling, the Affordable Care Act is now the legal law of the land… despite where any of us stand on the issue.  The only way it can be repealed is by an act of Congress… which Republicans are trying to do.  Presumptive Republican presidential nominee Mitt Romney and other Republicans are saying that Affordable Care Act will add trillions to the deficit.  This has been rated as False by Politifact.  They went to the non-partisan Congressional Budget Office for their official numbers.  The CBO said that with the passage of the legislation, it would lower the deficit by $124 billion over 10-years, and that repealing it would increase the deficit by as much as $210-billion over 10-years.  The CBO isn’t perfect with it’s calculations.  It even admits that it’s hard to predict future numbers since there are many variables that can make them go up and down.  There is one additional stipulation.  These numbers were crunched before the Supreme Court ruling, which did make one decision that could affect them.  The court ruled that though the federal government could give the option for states to accept (or not) the new Medicaid funding, the federal federal government could not withhold all Medicaid to the states if they refused… that it could only withhold future payment increases, but not what was already agreed to when the federal government and the state governments entered into the Medicaid program.  The CBO is currently crunching the numbers to see how the ruling will affect the overall numbers.

The Democrats, and President Obama, celebrated the ruling on Thursday while Republicans fussed over it.  And though the moods were celebratory on the left, I’m quick to remember that nothing energizes the right more than “Obamacare.”  This November will be the endgame.  If the Republicans can’t win the presidency and both houses of Congress by big enough margins, then the Affordable Care Act will be here to stay.  Only time can tell if the legislation will go down as a triumph or a failure… no matter how November goes.  In the past, we’ve seen bad legislation be popular and good legislation be unpopular.  For now, the shock is wearing off, and voting populace is turning now to more pressing matters… jobs and the economy, despite Republican efforts to keep healthcare at the top.  It’s hard to say how this will play out in the years to come, but it will take an educated populace to get through all the partisan rhetoric.

“You can fool all the people some of the time and some of the people all the time, but you can’t fool all of the people all of the time.” Abraham Lincoln~

According to a new Gallup poll, Americans are evenly divided as to whether they agree with the Supreme Court decision 46% to 46%.  Approximately 80% of Democrats agree compared to 45% of Independents and 13% of Republicans.

Washington Week (PBS) – Friday, June 29, 2012

Equal Protection: The Supreme Decision

So North Carolina voters approved a ballot measure that prohibits same-sex marriages within the state.  It became the last southern state to do so… and the 31st overall.  It was done during the primary election instead of the general election because the Republican-controlled legislature knew that Democratic turn-out during the primary would be low since there was no real primary taking place within that party.  Even so, the vote was close to a 60-40 split.  A couple of days later, President Obama announced that he is now firmly in support of same-sex marriage.  Some could say that his position has been a full flip-flop from his earlier stance, but if one were to actually look back to when he was serving in the Illinois legislature, you’d see he had the same position.  So technically, he’s had a full-circle flip-flop.

The LGBT-community erupted in cheers with the announcement from the president, but one needed to see things from a Constitutional viewpoint.  Though the president is supportive of the right, the power still resides within Congress to pass such laws to place them in effect.  A small body in Congress has the power to withhold basic rights to millions of American citizens.  Congress could easily pass legislation that would overturn The Defense of Marriage Act (DOMA), though that would only make the federal government recognize same-sex marriages that are performed legally.  States would still have the right to decide whether same-sex marriages were legal within their own borders.  Could Congress pass a law then that makes same-sex marriages legal across the nation and force states to recognize them?  They could easily pass a law that would nullify all state amendments banning same-sex marriages.  Remember, federal laws trump state laws.  However, the institution of marriage has been state-sanctioned and not federal.  So it would be uncharted territory for Congress to make such a proclamation, and it is unlikely to do so.

LGBT-Americans are not the first minority to face this type of discrimination.  For decades (maybe more like centuries), interracial marriages were illegal in many states (or colonies… before the American Revolution).  Even after the end of slavery following the Civil War when blacks were granted freedom and citizenship, they were not allowed to marry whites (and whites were not allowed to marry blacks).  This might seem a bit odd in today’s times since we see it quite regularly.  So how did it change?  It wasn’t an act of Congress.  It was actually the Supreme Court.  In Loving v. Virginia (1967), the Supreme Court essentially ruled that all laws that prohibited interracial marriage were unconstitutional.  LGBT-Americans have also had another issue than just same-sex marriage… namely just sex in general since many states had anti-sodomy laws in place.  The Supreme Court would end up striking all of them in Lawrence v. Texas (2003).  So is it the Supreme Court we should be watching to make same-sex marriage legal instead of Congress?

Though, as written earlier, Congress does have the right pass such legislation to overturn DOMA, it is unlikely to do so.  There are a few cases making their way up through the legal system that challenges the constitutionality of the law.  In the end, the Supreme Court will more than likely make a ruling on it once a case (or cases) get that high… should the Court decide to take it on.  Seeing how controversial the issue is, the Supreme Court is likely to take it to issue a final ruling.  But again, this would only affect the federal government.  What about the state bans?  There would have to be an entirely different case brought before the Court to make that decision.  So are these bans on same-sex marriage unconstitutional?  What about DOMA?  As they old saying goes, any law passed is constitutional until the Supreme Court declares otherwise.  However, Amendment 14 (Section 1) states…

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

As proper American citizens, LGBT-Americans are fundamentally denied certain rights both at the federal and the state levels that are granted to millions of heterosexual Americans.  Within that realm, DOMA and all state bans on same-sex marriage would appear to be in violation of the 14th Amendment.  Though, when it was passed, it was in reference to emancipated slaves following the end of the Civil War, the 14th Amendment can still resonate even today.

There is one additional caveat to explore.  Proposition 8 in California which prohibited same-sex marriage, but it’s a slight bit different than other same-sex marriage bans in that it stripped away a right that was already granted.  Though the California Supreme Court upheld the voter initiative, a suit was filed in Federal District Court (Perry v. Schwarzenegger).  The court did rule that Prop 8 was unconstitutional and violated the Equal Protection Clause and the Due Process Clause of the 14th Amendment.  The case was appealed to the Ninth Circuit Court of Appeals (Perry v. Brown) which upheld the lower court’s ruling.  An appeal has been made to review the case en banc before the Ninth Circuit Court of Appeals.  If granted, it could delay the case going to the Supreme Court by up to a year.  In any case, it is likely that this case will be appealed all the way to the Supreme Court in the end.  And like the lower courts, it is likely that it will find Proposition 8 unconstitutional based on the 14th Amendment.  The will of the majority does not have the authority to strip away the rights of a minority group that it disapproves of.  Though the decision would probably only strike down Prop 8 in California since it’s different that the other same-sex marriage bans, the ramifications of such a decision could still be wide-spread and a major stepping stone to ruling that all the state bans are unconstitutional… giving new fuel to the fire.

As for the people… there has been a dramatic shift since 1996.  According to a Gallup poll in 1996, 68% were opposed to same-sex marriage while only 27% were in favor.  The past couple of years have seen close to a 50-50 split.  In a recent 2012 Gallup poll conducted, 50% are now in favor of same-sex marriage with 48% opposed.  Though this does give us a vague idea of what the country is thinking as a whole, it does not tell us what is being thought in the individual states where marriage rights are essentially decided.  In the upcoming November elections, this will still be an issue in a few states.  Maryland and Washington will be voting to uphold the passage of same-sex marriage.  Minnesota voters will be voting on a state ban on same-sex marriages.  And Maine will be deciding on whether or not to overturn it’s same-sex marriage ban that was passed by the voters in 2009… thus overturning the legislation passed by the Maine legislature.

Regardless of what the final outcome of these decisions are, the ultimate decision could come down the Supreme Court in the end.  Though Congress could help everything along with certain legislation, some of the decisions will come from the Court itself.  The state bans will not be overturned by any act of Congress.  However, DOMA could easily be stripped away if Congress so chose to do so.  However, it’s an election year, so I doubt it is likely to happen just yet.  But the mindset of the people, and the world upon which we reside in, is ever changing… even if it’s slowly.


Bear with me for this particular entry.  Upon hearing of this particular subject, I felt nothing else would qualify than an old-fashioned rant, and I would like to thank The Atlantic for bringing this particular bit to attention that is taking place in my own home state of Missouri. It would appear that state Senator Brian Nieves (who is also a hard-core Tea Party Republican) has sponsored legislation that comes very close to seceding Missouri from the union.  The legislation claims that the state would have the authority to override any federal law it didn’t agree with and would go back to the original intent of the US Constitution. WTF?  Here is the the text of SJR45…

Upon approval by the voters, this constitutional amendment prohibits the Missouri legislative, executive, and judicial branches of government from recognizing, enforcing, or acting in furtherance of any federal action that exceeds the powers delegated to the federal government.

The state also shall not recognize, enforce, or act in furtherance of any federal actions that: restrict the right to bear arms; legalize or fund abortions, or the destruction of any embryo from the zygote stage; require the sale or trade of carbon credits or impose a tax on the release of carbon emissions; involve certain health care issues; mandate the recognition of same sex marriage or civil unions; increase the punishment for a crime based on perpetrator’s thoughts or designate a crime as a hate crime; interpret the establishment clause as creating a wall of separation between church and state; or restrict the right of parents or guardians to home school or enroll their children in a private or parochial school or restrict school curriculum.

The state is also required to interpret the U.S. Constitution based on its language and the original intent of the signers of the Constitution. Amendments to the U.S. Constitution shall be interpreted based on their language and the intent of the congressional sponsor and co-sponsors of the amendment.

The amendment also declares that Missouri citizens have standing to enforce the provisions of the amendment and that enforcement of the amendment applies to federal actions taken after the amendment is approved by the voters, federal actions specified in the amendment, and any federal action, regardless of when it occurred, that the general assembly or the Missouri Supreme Court determines to exceed the powers enumerated and delegated to the federal government by the U.S. Constitution.

This screams of just crazy, and not to mention that it is completely unconstitutional.  Yes, I know all laws are constitutional until the US Supreme Court rules otherwise.  However, the Court has ruled on this before.  The attempt to nullify federal laws goes back to the beginning days of our country.  During President Andrew Jackson’s first term, the state of South Carolina threatened to secede from the union over tariff legislation.  Then Vice-President John C. Calhoun was a major supporter of the South Carolina movement since it was his own home state, and he thought the president would be supportive since he was a southerner, as well.  He was wrong.  President Jackson threatened to send in the army and even hang the Vice President if South Carolina didn’t back down… which it did.  He was affirming that federal law trumps state law and that states do not have the right to nullify any federal law that it doesn’t agree with.

Under Article 6 of the US Constitution, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”  This means that states cannot trump federal laws.  The Supreme Court has held even to that ruling.  State laws trump local laws, federal laws trump state laws, and the US Constitution trumps everything.  Missouri Senator Nieve’s legislation is unconstitutional based on this alone.

And in part of the bill, the state would return to the original intent of the US Constitution itself?  Under that alone, only those that serve within the state militia would have the right to bear arms (read the text of the Second Amendment) and not the general population.  It has only been interpreted through the Supreme Court to mean that all citizens have the right to bear arms.  And his legislation would, therefore, nullify that interpretation.

This could mean heated tensions in the debate of federal vs. state, which has always existed.  But in this particular case, it is bound to lose.  This latest anti-federalism move will not hold up in court.  And, if the bill passes through the state legislature and past the governor, when the Supreme Court rules it unconstitutional on the grounds of Article 6, will the state of Missouri just attempt to nullify the ruling and do what it wants to do?  And if so, what does the federal government do then?  I guess one solution would be that the federal government could withhold all federal dollars since Missouri gets more than it pays in.

Nieves has proven that he is a complete dumbass for this type of legislation.  It is a complete waste of time and taxpayer dollars.  I think he needs to go back and take a civics class plus an American History class.  This man does not belong in any type of government…ever.  And for those who keep electing him, they need to wake up.  Just because there is a “R” by his name, doesn’t mean that he’d make a good representative of the people.  In fact, he’s got his head so far up his own ass that I doubt he can see the real world that exists around him.  It is said that Missouri is falling behind in attracting new jobs and people.  It’s this type of legislation that keeps businesses and people from moving to this state.  They see it as moving backwards and not progressing to the future.  Someone needs to tell Nieves, and any other legislator that votes in favor of this legislation, that it is not the 1850s (or even the 1950s) and to continually move the state of Missouri (and that is Missour-ee) backwards is not the answer.

The legislation is nothing short of a national debate we are having this election cycle.  The problem is that this particular legislation goes too far.  Nieves might see himself doing the right thing, and the Republican voters in this state might fully support such a move, but that doesn’t make it right.  That doesn’t even make it legal.  Nieves, and any supporting legislator, should know that it is doomed to go down in flames though they themselves will get a boost from normal Republican and Tea-Party Republican voters as they will be seen as standing up for the state over the overreaching federal government.

But let me ask this… if a state could (and I use the word ‘could’ because they technically can’t) pass laws that would nullify any federal law it didn’t agree with, then what would be the purpose of any federal legislation?  It would be total chaos and anarchy going from state to state.  We would essentially be throwing away the US Constitution and going back to the days of the Articles of Confederation, which the US Constitution replaced when it was determined that the Articles weren’t working.  Again, we find certain parts of our nation and those that represent the masses attempting to move our nation backwards without any regards to the lessons we have learned in our own history.  If we want to advance this state, then we must move it forwards.  And if state-Senator Nieves cannot be a part of that movement, then he needs to go back to the cave that he calls home and allow the rest of us to live in the real world… one free of his ass-backwards BS.

The Atlantic

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