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Texas’ Voter ID Law and Section 2 Litigation September 21, 2013

Posted by Afflatus in History, Politics, Uncategorized.
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The story of Texas’ Voter ID law is fascinating. Ever since 1975, Texas was required, under the Voting Rights Act (VRA), to seek approval from the federal government to any changes the state legislature might want to make to its election laws. The purpose of this law was an important one: to ensure that jurisdictions with a history of voting discrimination provide all of its citizens with equal access to the voting booths. Yet in June 2013, the Supreme Court struck down Section 4(b) of the VRA, which stipulated the formula for determining which jurisdictions would be subject to federal “pre-clearance” of proposed voting changes under Section 5 of the VRA. By determining that the Section 4 formula was unconstitutional, Shelby rendered the Section 5 “pre-clearance” regime inapplicable and unenforceable (until Congress updates the formula). So now, Texas may change its voting laws at will.

In 2011, the Texas legislature passed SB 14. It is one of the strictest photo ID laws in the nation, requiring voters to present photo identification from a very limited list before being allowed to vote. The law allows Texans to vote with a Texas concealed handgun license, but not with an ID from a public university or a tribal identification card. (See the Brennan Center’s complaint in its challenge to the law, especially paragraphs 41-45, for how the law will discriminate against minority voters.) In August 2012, in the pre-clearance proceedings, the U.S. District Court in DC rejected the law, finding that it would almost certainly “lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” The appeals process in this lawsuit was pending when the Supreme Court this summer struck down portions of the VRA, removing Texas from the pre-clearance requirement. Two days after the Supreme Court ruled on the VRA, it instructed the District Court to dismiss the pending litigation against Texas, allowing the State to do as it pleases.

Equal Justice Under Law?

Voting equality groups like the Brennan Center launched lobbying campaigns, and Congressmembers began imploring their colleagues to update the formula as the Supreme Court suggested Congress should do.

In addition to those advocacy efforts, lawyers at the Department of Justice, the NAACP, MALDEF, and elsewhere, started litigating to enforce the equal opportunity to vote. Though the Supreme Court had eliminated Section 5 pre-clearance as a tool, there was still Section 2.

Section 2 of the Voting Rights Act of 1965 prohibits voting practices or procedures that discriminate on the basis of race, color, or certain minority-language memberships. Section 2 is a creative alternative to Section 5 for enforcing equal access to voting booths, but it is a poor substitute. First, it is an ex post approach rather than ex ante — the voting discrimination must have already occurred. Second, it is far more costly and litigious. Third, the burden of proof is flipped: rather than States being required to prove, under pre-clearance, that a proposed law is nondiscriminatory, plaintiffs are required to prove that the law is discriminatory. These are serious drawbacks, and, while I acknowledge that there were problems with pre-clearance regime, I’m of the opinion that unconscionable voting discrimination is already occurring across America as a result of the change in the regulatory structure and enforcement due to the Supreme Court’s VRA decision.

As stated before, the burden of proof to show that Section 2 has been violated is on the plaintiff, and the threshold is high. Plaintiffs must show that, in the context of the “totality of the circumstance of the local electoral process,” the standard, practice, or procedure being challenged had the result of denying a racial or language minority an equal opportunity to participate in the political process. This is a statutory standard deriving from the 1982 reauthorization of the Voting Rights Act.

The Senate Judiciary Committee in 1982 issued a report in an attempt to provide guidance to courts when interpreting whether, in the totality of the circumstances, an election law has violated Section 2 of the Voting Rights Act. The factors the Senate suggests are:

  1. the history of official voting-related discrimination in the state or political subdivision;
  2. the extent to which voting in the elections of the state or political subdivision is racially polarized;
  3. the extent to which the state of political subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group, such as unusually large election districts, majority-vote requirements, and prohibitions against bullet voting;
  4. the exclusion of members of the minority group from candidate slating processes;
  5. the extent to which minority group members bear the effects of discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process;
  6. the use of overt or subtle racial appeals in political campaigns; and
  7. the extent to which members of the minority group have been elected to public office in the jurisdiction.

The Judiciary Committee pointed out that this list is neither exclusive nor comprehensive. However, plaintiffs need not prove every factor, or even a majority of them. It’s obvious that there is a tremendous amount of room for courts to interpret this how they please.

Lawsuits raising claims under Section 2 of the Voting Rights Act are few and far between — depending on your definition, there are around 35. In the wake of the Supreme Court decision, the leading Section 2 lawsuits are a group of three related cases challenging the same Texas Voter ID law that the District Court in DC reviewed within the Section 5 procedure, one of which was brought by the U.S. Department of Justice. Read more about the latest of these three cases, NAACP v. Steen, here.

The complaint in NAACP v. Steen is complex because what it seeks to prove — that a voter ID law will disproportionally impact, and thus discriminate unconstitutionally against minorities — is a very difficult proposition to prove in court. It’s also interesting because of the back story of Taxas’ voter ID law in District Court, and because of the Supreme Court’s recent decision on the VRA. As a law student learning about argumentation, it’s interesting to see the strategy adopted by the complaint, and which of the Senate’s factors listed above the complaint chooses to stress.

If you’re familiar with Voter ID laws generally, jumping straight to Paragraph 45 might be a good idea. Paragraph 50, listing the historical voting discrimination perpetrated by the State of Texas, is absolutely appalling.

Ultimately, the complaint alleges that the law has both a discriminatory result and a discriminatory purpose. It also alleges that the law violates the Fourteenth and Fifteenth Amendments of the United States Constitution. It was filed 4 days ago in U.S. District Court for the Southern District of Texas. I’m very curious to watch this unfold!

Oil Futures Rise on Fears of U.S. Attack on Syria September 9, 2013

Posted by Afflatus in Uncategorized.
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Today there is heightened tension and risk of instability in the Middle East. (Oil futures are already elevated.) This development is not because Syria has used chemical weapons, but because the United States is threatening — and looking increasingly likely — to attack.

I still cannot understand why President Obama believes this is a good idea.

My Response to the “Red Line” Argument Re: Syria September 9, 2013

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The “red line” argument vis-a-vis Syria goes something like this: “Obama said the use of chemical weapons by the Syrian regime would constitute crossing a “red line” of the United States’. Because of this, the United States must attack Syria’s chemical weapons depots. To do otherwise would render the U.S. a feckless, paper tiger, embolden Assad and other dictators to use chemical weapons by permitting a lack of accountability, and finally it will weaken the U.S. position towards Iran.”

Here is my response:

Just because Syria crossed a so-called “red line” for the United States, why must President Obama then necessarily respond with a military attack? There are other ways to provide accountability for this horrific atrocity the Syrian regime has perpetrated. Why not tighten sanctions? Ambassador Power and other officials in the Obama Administration don’t say. Why not respond in a way consistent with international law? The United States has decided not to attempt to go to the UN (there are decent reasons for this, of course. But still!). Then, even if one assumes the U.S. chooses to disregard international law in a supposed effort to uphold international law (indeed), why not allow UN inspectors to finish their work discovering evidence prior to attacking with military force?

I don’t understand why crossing a fictitious “red line” (which we supposedly have evidence Syria actually already crossed twice prior to this recent, large-scale chemical attack), necessitates a rapid military response in violation of UN rules. Furthermore, how far does this supposed “red line” extend. What if, in 2014, there is an uprising in North Korea or China and the government there uses chemical weapons to put down the rebellion?

Finally, even if one finds the “red line” argument more convincing than my rebuttal, I still believe a “realist” analysis of the underlying interests at stake for the United States in the Middle East — counter-terrorism and oil price management — will be better served by not attacking Syria. In my opinion, this “national interest” analysis should be finally devastating to any arguments in favor of striking.

Disappointed and Dumbfounded by Obama’s Syria Policy September 8, 2013

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Since last writing, my views about the normative question pertaining to Syria have changed dramatically. Through a bit more reading on the subject, thinking through my own views further, and discussing with friends, I’ve come to the conclusion that it’s a very poor decision to conduct even limited strikes against Syria.

Listening to United States Ambassador to the UN Samantha Power speak at the Center for American Progress, I find myself downright confused and disheartened by the arguments and statements I’m hearing from the Administration. Power and Neera Tanden (President of CAP) make an appeal for intervention that rests largely on emotional arguments, calling it “monstrous,” talking about fathers crying over their dead babies. Yes, this all horrible. Atrocious. The videos of the Syrian chemical attack are shockingly gruesome. And I don’t doubt that it was Assad and the Syrian government behind these attacks.  But ultimately, there are humanitarian atrocities the world over. Omar al-Bashir, President of Sudan has murdered hundreds of thousands of his own people. The Lords Resistance Army, led by Joseph Kony, is a band of rebels causing havoc in uncontrolled regions of Uganda, the Democratic Republic of the Congo, and the Central African Republic. Kony and his gang mutilate and rape their victims, while abducting children and forcing them to fight on their behalf. And the list goes on. If we accept Ambassador Power’s argument for humanitarian-based intervention, where do we draw the line? Which do we get involved it, and “how can we stomach,” in her words, sitting out and “standing idly by” while other atrocities takes place? (Side note: a fact too little known is that the US did send military personnel to fight against Kony and the LRA in October 2011.)

Furthermore, the idea that the United States is the moral international arbitrator in this situation — an argument Ambassador Power alludes to repeatedly — is patently absurd. In the 1980’s, the United States helped Sadaam Hussein massacre thousands of Iranians with chemical weapons in a calculated effort to maintain the balance of power between those two countries in the Persian Gulf region. This is not an allegation, but a fact proven by recently declassified CIA memos. Read them, they’re shocking.

Additionally, Ambassador Power claims that we must do this because it’s an international treaty. The simple yet devastating counter to this silly point that the administration is making has become almost hackneyed: since when has the United States obeyed international law, or upheld treaties?  The United States hasn’t even ratified the Law of the Sea Treaty! And why didn’t the United States care when it’s ally, Bahrain, (where the U.S. Navy 5th Fleet is harbored) was arresting doctors and other medical personal as they rushed to tend to peaceful demonstrators (who had been injured by government riot police) that were demanding democracy and a voice in their government affairs? Why didn’t the United States want to intervene to uphold the Geneva Conventions in Bahrain. So, having belabored the point, I hope I have shown how absurd Ambassador Power seems to anyone who has a conception of history, international law, and the traditional role the United State has played in world affairs.

Ambassador Power claims the United States has exhausted alternatives, yet she makes no mention about any efforts to tighten sanctions. Sanctions won’t stop chemical weapons being used on civilians, but neither will targeted strikes. And if targeted strikes do succeed in stopping further chemical weapons attacks by Assad, what is to stop Assad from decimating innocent Syrians with traditional weapons? What is the end game for the United States?

Ultimately, I don’t buy the argument that this is a humanitarian ground for the reasons stated above. Rather, I think (but I have no evidence for this claim) that America’s national security apparatus is exaggerating the “threat” to America’s national security, to global stability, or to any of our non-core interests, in order to work to take out Assad. This is exactly what happened in Iraq in 2003. And Libya in 2011 was very similar. The common theme in all 3 cases is that a decent pretense (9-11 with Iraq, the Libyan Spring, and sarin gas now in Syria) is used as an excuse to achieve a longstanding goal — getting rid of a dictator we don’t like. But why must we do it again!? In both Libya and Iraq, the outcomes were terrible for the United States! In Libya the outcome was good for Al-Qaeda and very bad for the U.S. embassy and the estimable Ambassador Christopher Stevens; in Iraq today there is no democracy, internecine sectarian violence continues, and in many important ways Iran’s position in the region was strengthened by the US intervention. So, assuming we even could somehow take out, or weaken, Assad, what could the national security apparatus of the United States possibly expect as a productive outcome for US interests!? The U.S. knows it doesn’t like the opposition forces (that’s why the Obama Administration has been reluctant to provide lethal military support). The United States fears that the opposition is sympathetic to Al-Qaeda or other extreme Muslim groups. I’m struggling to see what good for the United States will come from an attack on Syria.

I think this intervention plays perfectly into Al-Qaeda’s narrative and will undermine our global counter-terrorism efforts. It will surely increase instability in the Middle East possibly increasing the price of oil. Counter-terrorism and oil price management are the primary core national interests of United States in the Middle East. Limited strikes on Syria will undermine both of those goals.

So what is President Obama doing? I am dumbfounded.

The US Turns Its Eyes to Syria September 4, 2013

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A couple quick thoughts on the impending Syria intervention by the United States:

Over the weekend the President stated that while he has the legal authority to proceed unilaterally and without Congressional approval, he will seek Congressional approval prior to engaging the armed forces in Syria. The legal authority for the President to engage — both from an international law standpoint, and a domestic law standpoint — is very ambiguous, and I would be very curious to read the administration’s legal memos on the subject. But ultimately the gray areas are where law is created, right!? I have written previously about the War Powers Act and the legality of the Libyan operation, so I’ll put this issue aside for now.

Unlike the Libyan operations — where the President did not seek Congressional approval, but Congress attempted (and failed) to assert its authority — the President with Syria is affirmatively seeking authority from Congress. The President argues in his speech that having a national debate, through our Congressional leaders, is the right thing for our democracy. Then he proceeded to lay out the case for why intervention in Syria is a good idea.

Seeking congressional approval is a good thing, whether or not Congress “rubber stamps” the issue, unquestioningly providing the authority to intervene, because it inherently demands that a deeper debate occur. I’m happy to see that this is already happening. Moreover, I would argue that Congress is not merely “rubber stamping” but rather they are providing meaningful checks on the executive: a limit on the duration of engagement to either 2-3 months, no boots on the ground, and the requirement that the President submit to Congress a report detailing U.S. aid to opposition groups in Syria. This is valuable, and it is to Mr. Obama’s credit that he jump-started this debate.

Again, the proposals coming out of Congress lead us back to whether any of this matters because ultimately if the President doesn’t need Congressional authority in the first place, then what meaningful checks can Congress place on the Executive? This is the stuff that gets decided in the court of public opinion. Precedent is being set here, and the judgment of public opinion will affect the “legality” of future interventions. (Precedent was set in Kosovo in 1999 even when President Clinton affirmatively stated that the intervention should not set precedent.)

Lastly, I’ll say that Congressional leaders would do themselves and the institution of Congress well by making sure to come up with reconciled language that authorizes the President to conduct a limited intervention. It’s clear that President Obama is going to intervene on a certain scale. If Congress wants to avoid its authority as an institution from being further undermined, it should produce a reconciled resolution authorizing the use of limited force in Syria, and it should do so fairly quickly.

I’ve yet to address the normative question of whether or not this is actually a good idea. I tend to think a limited intervention in Syria is, in fact, a good idea for the United States and the world. I’m persuaded by the argument that the chemical attack was tragically heinous and the world should not stand idly by. I believe we need to bolster the rule of law in the international community, and I think a small-scale intervention, hopefully with Arab, Asian, and European partners, bolsters a rules-based international regime (though I acknowledge that there are arguments supporting the view that this merely undermines the rule of law internationally). In general, though, I’d rather stay away from this normative question because, ultimately, I am so far from being in a proper position to address this question with any sort of accuracy or informed opinion. For better or worse, foreign policy is a facet of policy-making where we must trust our leaders.