"The rule of law and the survival of our Republic demand nothing less." From Justice Department Alumni Letter

Exceprts from the letter written by 2000 Department of Justice Alumni.  The whole letter is here.  These are things that are worth taking the time to read in their entirety.  This one isn't that long.

"As former DOJ officials, we each proudly took an oath to support and defend our Constitution and faithfully execute the duties of our offices. The very first of these duties is to apply the law equally to all Americans. This obligation flows directly from the Constitution, and it is embedded in countless rules and laws governing the conduct of DOJ lawyers. The Justice Manual — the DOJ’s rulebook for its lawyers — states that “the rule of law depends on the evenhanded administration of justice”; that the Department’s legal decisions “must be impartial and insulated from political influence”; and that the Department’s prosecutorial powers, in particular, must be “exercised free from partisan consideration.”
All DOJ lawyers are well-versed in these rules, regulations, and constitutional commands. They stand for the proposition that political interference in the conduct of a criminal prosecution is anathema to the Department’s core mission and to its sacred obligation to ensure equal justice under the law."

It's worth sending this to your members of Congress, reminding them of the oaths they took.

"For these reasons, we support and commend the four career prosecutors who upheld their oaths and stood up for the Department’s independence by withdrawing from the Stone case and/or resigning from the Department. Our simple message to them is that we — and millions of other Americans — stand with them. And we call on every DOJ employee to follow their heroic example and be prepared to report future abuses to the Inspector General, the Office of Professional Responsibility, and Congress; to refuse to carry out directives that are inconsistent with their oaths of office; to withdraw from cases that involve such directives or other misconduct; and, if necessary, to resign and report publicly — in a manner consistent with professional ethics — to the American people the reasons for their resignation. We likewise call on the other branches of government to protect from retaliation those employees who uphold their oaths in the face of unlawful directives. The rule of law and the survival of our Republic demand nothing less."

I

Barr: ". . . so-called progressives treat politics as their religion . . Conservatives . . . are interested in preserving. . . the proper balance of freedom and order "

The title quote comes from the US Department of Justice website!  It's from a speech Attorney General William Barr delivered last night at the Federalist Society's 2019 National Lawyers Convention.  Here are three full paragraphs from that speech:

"In any age, the so-called progressives treat politics as their religion.  Their holy mission is to use the coercive power of the State to remake man and society in their own image, according to an abstract ideal of perfection.  Whatever means they use are therefore justified because, by definition, they are a virtuous people pursing a deific end.  They are willing to use any means necessary to gain momentary advantage in achieving their end, regardless of collateral consequences and the systemic implications.  They never ask whether the actions they take could be justified as a general rule of conduct, equally applicable to all sides. 
Conservatives, on the other hand, do not seek an earthly paradise.  We are interested in preserving over the long run the proper balance of freedom and order necessary for healthy development of natural civil society and individual human flourishing.  This means that we naturally test the propriety and wisdom of action under a “rule of law” standard.  The essence of this standard is to ask what the overall impact on society over the long run if the action we are taking, or principle we are applying, in a given circumstance was universalized – that is, would it be good for society over the long haul if this was done in all like circumstances?
For these reasons, conservatives tend to have more scruple over their political tactics and rarely feel that the ends justify the means.  And this is as it should be, but there is no getting around the fact that this puts conservatives at a disadvantage when facing progressive holy far, especially when doing so under the weight of a hyper-partisan media."

You notice how he's arguing that the liberals (I guess the Republicans now vilify 'progressives' as the Left has begun using that term to avoid the taint of the Republicans campaign to make 'liberal' into a dirty word) want to be God - 'holy mission;'  'remake man and society in their own image;'  'deific end.'  

The people I know who see themselves as progressives are interested in making the United States live up to the spirit of the Constitution, whose letter including slavery and other problematic realities.  They believe in justice, equality before the law, freedom, etc.  I'm not sure what Barr is thinking about when he says progressives want to remake man and perfect him.  (I personally would use human instead of man, but for this I'm using his words.)  Does he mean freeing slaves?  Ending segregation? Giving women the right to vote?  And recognizing that all humans, regardless of color, religion, gender, ability, etc. have equal rights under the law?  After all, Republicans have been working hard to 'perfect' humans by passing laws to prevent abortion and other practices they don't like.  

But I didn't post this to argue these points.  I think they are so ludicrous they don't need anyone to point out the problems.  But obviously if an educated man like Barr believes what he's written here, others do too.  So I did a little critique.  I could go on if anyone who sees this doesn't understand what I object to.

My purpose here is to point out the blatantly partisan tripe that Barr has posted on the Department of Justice website.  The attorney general of the US is supposed to enforce the law without bias.  But this speech raises great doubt whether he can actually do that.  I can't help but believe that under his idea of justice, progressives would be given less benefit of the doubt than would conservatives.  Because, he believes they are simply wrong.

Part of me thinks the whole attempt to suppress the actual beliefs of academics and journalists and judges in an effort to make them 'neutral' is a misguided cause.  It's better to know what they believe so we can judge whether they are able to act neutrally when they do research, report news, or pass judgment.   But the ability to put aside one's personal loyalties in one's professional capacity is not something everyone (many?) can do.  

But Barr's behavior regarding Trump suggests strongly that he can't do that - from the misleading summary of the Mueller Report to his defense of Trump over the Constitution and the people of the United States - suggests he can't.  And his comments in this speech are so ideological and so off the mark in both his characterization of liberals and conservatives as to raise question about his abilities to interpret the world.  Or his honesty.  

I should thank two Tweeters for point this out:  Shalev Roisman and Justin Levitt who I follow because he's an expert on voting and redistricting.

My natural instinct was to take a screenshot before they take his speech down.  But in this administration there is no shame.  And they probably see nothing wrong with this speech.  And they really don't care what the liberals think anyway.  They've got the US governments websites to plaster their ideology.  But I did take a screenshot (and of course they can be doctored too, but the forensics team will be able to see that this shot wasn't doctored - but that question should always be in your mind.

And I need to mention Anchorage got its first snow today.  We haven't even had traces.  But we got a good white cleansing today.

Senator Dan Sullivan On The Checks That Exist On Trump's Possible Firing of Mueller

Just seven days ago I wrote here that people should contact their Congress members and Senators to let them know they should NOT let Trump get away with firing Mueller.  I also sent emails to my representative and senators.

Only four days later I got a reply from Senator Dan Sullivan.  While he doesn't make any commitments, it looks like his staff was prepared on this one.  So I think it's only fair to post his response.

"Thank you for contacting me regarding S.1741, the Special Counsel Integrity Act. I appreciate your thoughts on this issue and welcome the opportunity to respond."

I know this is a form letter from the first line, because I didn't mention S.1741.  I just urged him to make sure  1) Trump knows that Sen. Sullivan supports the Mueller investigation and  2) should Mueller get fired that Sullivan would work to stop Trump.  I didn't offer how, I figured he knew those details better than I did, and he did.

On August 3, 2017, Senator Thom Tillis (R-NC) introduced S.1741 to formally establish a process by which the special counsel can challenge their removal. This legislation would allow a special counsel to challenge their removal before a panel of three federal court judges whose decision could be appealed to the U.S. Supreme Court. 

Since President Donald Trump assumed office on January 20, 2017, several news outlets have published allegations that staffers for President Trump had contact with Russian officials during the 2016 presidential campaign. Following these allegations, on May 17, 2017, Deputy Attorney General Rod J. Rosenstein appointed former FBI Director Robert S. Mueller as special counsel. The special counsel is authorized to investigate any possible coordination between the Russian government and the campaign of President Donald Trump, as well as any other matters that arose from this investigation.  

The President does not have the authority to remove Robert Mueller as special counsel; his removal would require the approval of Deputy Attorney General, Rod Rosenstein. The special counsel can only be fired for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of DOJ policies. Additionally, the special counsel must be notified in writing as to the reason for their dismissal.  [emphasis added]

We need to continue the comprehensive investigations being conducted by both the DOJ, FBI and the Senate Intelligence Committee into Russia’s involvement in the 2016 election. As a firm advocate for maintaining proper checks and balances in our government, I will continue to work with and at the same time provide necessary oversight regarding the President’s nominees to ensure that all appointees follow the U.S. Constitution and the rule of law, and that foreign governments do not succeed in their efforts to undermine trust in the U.S. Government—a model of freedom that stands in stark contrast to Russia’s authoritarian regime. [emphasis added, and I'd note that 'both' usually refers to two things not three.]

S.1741 has been referred to the Senate Committee on the Judiciary, where it awaits action. While I am not a member of this Committee, I will be sure to keep your comments in mind as it is discussed in the Senate. 

Thank you again for contacting me on this issue. If you have any more questions or concerns, please feel free to contact me or my staff. My office can be reached at 202-224-3004, or online at www.sullivan.senate.gov.

Sincerely,

Dan Sullivan
United States Senator 

So here is the official summary of S.1741:

Special Counsel Integrity Act
This bill sets forth requirements and limitations with respect to the discipline or removal from office of a special counsel appointed under Department of Justice (DOJ) regulations.
Specifically, a special counsel may be disciplined or removed only by the personal action of an Attorney General who has been confirmed by the Senate. If the Attorney General is recused from the matter, then a special counsel may be disciplined or removed by the most senior DOJ official who has been confirmed by the Senate and is not recused from the matter.
A special counsel: (1) may only be removed for misconduct, dereliction of duty, incapacity, conflict of interest, or other good cause, including violation of DOJ policies; (2) must be informed in writing of the specific reason for the removal; and (3) may file an action for judicial review of the removal.

It was introduced, as the letter says, on August 3, 2017 by Senator Them Tillis (R-NC) and referred to the Judiciary Committee.  You have to dig around a bit to find out that Sen. Christopher Coons (D - Del) is the co-sponsor.   It sat there until September 26, where a hearing was held.

That's all that Congress.com tells us.  Presumably it's been sleeping in that committee ever since, so my Senator says it's out of his hands.

I appreciate that Sen. Sullivan got back to me quickly and gave me some substantive information, but I don't seem much enthusiasm on his part for doing anything.  Though he did vote No on the budget just about the same time. And he does want the Mueller investigation to continue.  What exactly will he do to make sure that happens?



Here's what Vox said about this bill and another similar one back in October and it seems to apply to Sullivan's response:

"Senate Republicans have been coy about whether they would move to insulate Mueller if Trump follows the conservative calls to dismiss the special counsel’s investigation.
But if they’re interested in taking action, they have options already on the table."

If you poke around long enough you start to get stuff.  Here's part of what CT Mirror said on March 19, 2018:

"After Mueller was appointed nearly a year ago to head the investigation into possible ties between the Trump administration and Russia, senators, including Richard Blumenthal, introduced two bipartisan bills last year aimed at protecting a special counsel from political pressure from the White House
The “Special Counsel Integrity Act,” introduced by Republican Sen. Thom Tillis of North Carolina and Democratic Sen. Chris Coons of Delaware, would allow a special counsel to be fired only for “misconduct, dereliction of duty, incapacity, conflict of interest, or other good cause, including violation of Justice Department policies.
The “Special Counsel Independence Protection Act,” introduced by Sen. Lindsey Graham, R-S.C.; Cory Booker, D-N.J.; and Blumenthal would require a federal judge to first sign off on any action to discipline or fire a special counsel.
The Senate Judiciary Committee held a hearing in September on the two bills, but the legislation has not moved since then. Similar legislation introduced in the U.S. House is also stalled.
When the Senate returns on Tuesday, a push to move the bills out of committee onto the Senate floor is expected."

Let's see if  either of these bills get any new co-sponsors, especially now that Bolton is officially in the administration.

What Does The Law Say About Special Counsels?

It's pretty short and easy to read.  There are ten sections, not more than four paragraphs each.  You can read it yourself - courtesy of Cornell University Law School.

28 CFR Part 600 - GENERAL POWERS OF SPECIAL COUNSEL

§ 600.1 Grounds for appointing a Special Counsel.The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and -
(a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and
(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

§ 600.2 Alternatives available to the Attorney General.When matters are brought to the attention of the Attorney General that might warrant consideration of appointment of a Special Counsel, the Attorney General may:
(a) Appoint a Special Counsel;
(b) Direct that an initial investigation, consisting of such factual inquiry or legal research as the Attorney General deems appropriate, be conducted in order to better inform the decision; or
(c) Conclude that under the circumstances of the matter, the public interest would not be served by removing the investigation from the normal processes of the Department, and that the appropriate component of the Department should handle the matter. If the Attorney General reaches this conclusion, he or she may direct that appropriate steps be taken to mitigate any conflicts of interest, such as recusal of particular officials. 

§ 600.3 Qualifications of the Special Counsel.(a) An individual named as Special Counsel shall be a lawyer with a reputation for integrity and impartial decisionmaking, and with appropriate experience to ensure both that the investigation will be conducted ably, expeditiously and thoroughly, and that investigative and prosecutorial decisions will be supported by an informed understanding of the criminal law and Department of Justice policies. The Special Counsel shall be selected from outside the United States Government. Special Counsels shall agree that their responsibilities as Special Counsel shall take first precedence in their professional lives, and that it may be necessary to devote their full time to the investigation, depending on its complexity and the stage of the investigation.
(b) The Attorney General shall consult with the Assistant Attorney General for Administration to ensure an appropriate method of appointment, and to ensure that a Special Counsel undergoes an appropriate background investigation and a detailed review of ethics and conflicts of interest issues. A Special Counsel shall be appointed as a “confidential employee” as defined in 5 U.S.C. 7511(b)(2)(C). 

§ 600.4 Jurisdiction.(a)Original jurisdiction. The jurisdiction of a Special Counsel shall be established by the Attorney General. The Special Counsel will be provided with a specific factual statement of the matter to be investigated. The jurisdiction of a Special Counsel shall also include the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel's investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; and to conduct appeals arising out of the matter being investigated and/or prosecuted.
(b)Additional jurisdiction. If in the course of his or her investigation the Special Counsel concludes that additional jurisdiction beyond that specified in his or her original jurisdiction is necessary in order to fully investigate and resolve the matters assigned, or to investigate new matters that come to light in the course of his or her investigation, he or she shall consult with the Attorney General, who will determine whether to include the additional matters within the Special Counsel's jurisdiction or assign them elsewhere.
(c)Civil and administrative jurisdiction. If in the course of his or her investigation the Special Counsel determines that administrative remedies, civil sanctions or other governmental action outside the criminal justice system might be appropriate, he or she shall consult with the Attorney General with respect to the appropriate component to take any necessary action. A Special Counsel shall not have civil or administrative authority unless specifically granted such jurisdiction by the Attorney General. 

§ 600.5 Staff.A Special Counsel may request the assignment of appropriate Department employees to assist the Special Counsel. The Department shall gather and provide the Special Counsel with the names and resumes of appropriate personnel available for detail. The Special Counsel may also request the detail of specific employees, and the office for which the designated employee works shall make reasonable efforts to accommodate the request. The Special Counsel shall assign the duties and supervise the work of such employees while they are assigned to the Special Counsel. If necessary, the Special Counsel may request that additional personnel be hired or assigned from outside the Department. All personnel in the Department shall cooperate to the fullest extent possible with the Special Counsel. 

§ 600.6 Powers and authority.Subject to the limitations in the following paragraphs, the Special Counsel shall exercise, within the scope of his or her jurisdiction, the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney. Except as provided in this part, the Special Counsel shall determine whether and to what extent to inform or consult with the Attorney General or others within the Department about the conduct of his or her duties and responsibilities. 

§ 600.7 Conduct and accountability.(a) A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice. He or she shall consult with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department, including ethics and security regulations and procedures. Should the Special Counsel conclude that the extraordinary circumstances of any particular decision would render compliance with required review and approval procedures by the designated Departmental component inappropriate, he or she may consult directly with the Attorney General.
(b) The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department. However, the Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued. In conducting that review, the Attorney General will give great weight to the views of the Special Counsel. If the Attorney General concludes that a proposed action by a Special Counsel should not be pursued, the Attorney General shall notify Congress as specified in § 600.9(a)(3).
(c) The Special Counsel and staff shall be subject to disciplinary action for misconduct and breach of ethical duties under the same standards and to the same extent as are other employees of the Department of Justice. Inquiries into such matters shall be handled through the appropriate office of the Department upon the approval of the Attorney General.
(d) The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal. 

§ 600.8 Notification and reports by the Special Counsel.(a)Budget.

(1) A Special Counsel shall be provided all appropriate resources by the Department of Justice. Within the first 60 days of his or her appointment, the Special Counsel shall develop a proposed budget for the current fiscal year with the assistance of the Justice Management Division for the Attorney General's review and approval. Based on the proposal, the Attorney General shall establish a budget for the operations of the Special Counsel. The budget shall include a request for assignment of personnel, with a description of the qualifications needed.

(2) Thereafter, 90 days before the beginning of each fiscal year, the Special Counsel shall report to the Attorney General the status of the investigation, and provide a budget request for the following year. The Attorney General shall determine whether the investigation should continue and, if so, establish the budget for the next year.

(b)Notification of significant events. The Special Counsel shall notify the Attorney General of events in the course of his or her investigation in conformity with the Departmental guidelines with respect to Urgent Reports.
(c)Closing documentation. At the conclusion of the Special Counsel's work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.

§ 600.9 Notification and reports by the Attorney General.
(a) The Attorney General will notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress, with an explanation for each action -

(1) Upon appointing a Special Counsel;

(2) Upon removing any Special Counsel; and

(3) Upon conclusion of the Special Counsels investigation, including, to the extent consistent with applicable law, a description and explanation of instances (if any) in which the Attorney General concluded that a proposed action by a Special Counsel was so inappropriate or unwarranted under established Departmental practices that it should not be pursued.

(b) The notification requirement in paragraph (a)(1) of this section may be tolled by the Attorney General upon a finding that legitimate investigative or privacy concerns require confidentiality. At such time as confidentiality is no longer needed, the notification will be provided.
(c) The Attorney General may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions. All other releases of information by any Department of Justice employee, including the Special Counsel and staff, concerning matters handled by Special Counsels shall be governed by the generally applicable Departmental guidelines concerning public comment with respect to any criminal investigation, and relevant law.

§ 600.10 No creation of rights.
The regulations in this part are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law or equity, by any person or entity, in any matter, civil, criminal, or administrative.

From what I can tell, the terms special prosecutor and special counsels seem to be used interchangeably. 

Remember That Muslim Kenyan? It Seems He Tapped Trump's Phone Too

Let's see.  The next step will be a call to have him removed from the US as an illegal alien.

The New York Times is reporting that FBI director Comey wants the Justice Department to deny Trump's claims:

"The F.B.I. director, James B. Comey, asked the Justice Department this weekend to publicly reject President Trump’s assertion that President Barack Obama ordered the tapping of Mr. Trump’s phones, senior American officials said on Sunday. Mr. Comey has argued that the highly charged claim is false and must be corrected, they said, but the department has not released any such statement."

I found the next sentence interesting for what it tells us about Comey (assuming, of course, this is accurate at all):

"Mr. Comey, who made the request on Saturday after Mr. Trump leveled his allegation on Twitter, has been working to get the Justice Department to knock down the claim because it falsely insinuates that the F.B.I. broke the law, the officials said." (emphasis added)

Back in October when he told the world about reopening the Clinton email investigation, he wrote to FBI  employees:

"Of course, we don’t ordinarily tell Congress about ongoing investigations, but here I feel an obligation to do so given that I testified repeatedly in recent months that our investigation was completed." (emphasis added)

Comey seems to have a strong need to protect his own reputation, which may skew his judgment.  

Back to the phone tapping allegations, the Washington Post fact-checker searches down references to FISA court requests and gives Trump four Pinocchios.

Sounds to me like the heats on over Russia and Trump's using his usual tactic of a diversionary attack to get people's attention off Trump.  I guess his mother didn't read him the story about the boy who cried wolf.  

Shelby County 2: Will the End of "Racial Entitlement" Help Republicans Win?

Most of the Alaska Redistricting Board is hoping that the US Supreme Court will overturn Section 5 of the federal Voting Rights Act when the decision on Shelby County v Holder comes out soon.  (Though one member told me it was disappointing to see that the State of Alaska filed an amicus brief for Shelby County.)   I've written about this case already here.

But I wanted to point out that getting rid of Section 5 likely, at least in the short run, give Republicans a boost in elections by making it easier to set up obstacles to voting by Blacks and other protected classes. 

The conservatives - particularly Scalia, Roberts, and Kennedy - seemed to be suggesting the standards used to determine which states were required to get pre-clearance for redistricting plans and other voting regulations is outdated.  The problem is over now, they say, and the states shouldn't be singled out above all the other states for special treatment. 

This is despite a report to Congress [I think the link is to the Report], but there's a small chance it's another report] showing that serious problems still exist, and Congress passing the renewal of the VRA overwhelmingly - 98-0 in the Senate.  390 - 33* in the House.

Listening to the oral arguments, I couldn't help but think that these are the same Justices who voted to cut off the Florida voting review process and declare George W. Bush president in 2000.  And I couldn't help but think of this quote I saw on Immoral Minority (from Huffington Post) from a Texas Tea Party leader the other day:

“I’m going to be real honest with you,” Emanuelson said. “The Republican Party doesn’t want black people to vote if they are going to vote 9-to-1 for Democrats.”

I'm sure that is true.  Why would they want Blacks to vote if they're going to vote for Democrats?  But voter suppression is what's supposed to happen in phony elections in dictatorships, not the USA.  But voter suppression was one of the tactics Republicans used in the last several elections - though their spin was to fight "voter fraud" which no one could find. 

As the decision in this case is imminent and it will affect redistricting in Alaska, I do want to point out a couple of points that came up in the oral arguments.  

Scalia and "Racial Entitlement":

"And this last enactment [the 2006 renewal of the Voting Rights Act], not a single vote in the Senate against it. And the House is pretty much the same. Now, I don't think that's attributable to the fact that it is so much clearer now that we need this.  I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes." (p. 47 of the Oral Arguments transcript)

OK, entitlement is a bad word for Republicans.  It means, for them, you get something you don't deserve.  So, whatever "Racial Entitlement" is supposed to mean, the intent would seem to be getting something you don't deserve because of your race.  Prof. Peggy Macintosh wrote persuasively about White Privilege in 1988, but I don't think that's what they mean here. 

"It's been written about" caught my eye and so I googled 'racial entitlement' and found that others noticed that term when it was uttered back in February.  Rachel Maddow's research staff found that it was indeed written about, in a paper in 1979, written by one Antonin Scalia, called "Racial Entitlement:  'In Order To Get Beyond Racism We Must First Account of Race.'"  I know it's ironic, paradoxical even, that we have to take into consideration the idea of race to fight racism, but yeah, we do.  After hundreds of years of race being used to discriminate against people you can't make it all go away by saying today everyone is equal.  But that seems to be a lot of Scalia;s thinking on this. 

Apparently here he means that the 98-0 vote in the Senate means the members have no choice but to vote for it.  He uses this logic for why the Court should overrule this overwhelming vote for renewing the Voting Rights Act in 2006 (which President GW Bush was strongly supporting.)

"I don't think there is anything to be gained by any Senator to vote against continuation of this act.  And I am fairly confident it will be reenacted in  perpetuity unless -- unless a court can say it does not comport with the Constitution."

So, the Senators are spineless and afraid to vote against it because their constituents their constituents want it.  Therefore the Supreme Court needs to step in.  I don't hear him arguing that Senators afraid to vote for gun control, and therefore the Supreme Court needs to help out.  

And, in fact, 33* members of Congress were not afraid to vote against the VRA. 


Voter Turnout Shows Mississippi is Fine But Massachusetts Isn't

The logic of the Chief Justice:

CHIEF JUSTICE ROBERTS: Just to get the --  do you know which State has the worst ratio of white  voter turnout to African American voter turnout?

GENERAL VERRILLI: I do not.

CHIEF JUSTICE ROBERTS: Massachusetts. Do you know what has the best, where African American turnout actually exceeds white turnout? Mississippi.

Part of the formula in the law, for determining which states must get pre-clearance from the Department of Justice (DOJ) is percent of voter turnout.  But I would argue that his conclusion, today, that Mississippi's black turnout his higher than Massachusetts', is wrong.  It doesn't indicate the problem is over.  I would argue it indicates the opposite.

The formula that the Justice Department uses in calculating, in Alaska's case, "Native Districts"  includes factors such as whether the non-Native population votes the same way the Native population votes.  If yes, then the percentage of Natives in the district can be lower to meet the standards. 

And that's why you might see lower African American turnout in Massachusetts.  African American voters know their votes are not as important because the white voters vote the same way they do.    African Americans feel their rights are protected and have less concern about voting.  They know the party that will protect their rights will be elected if they vote or not.

In Mississippi, if African Americans don't vote, they know the White voters will vote against their interests.


This could be a lot longer because there is plenty to raise one's eyebrows in this case.  For instance, Justice Kennedy brought up the term "reverse engineering" to explain why ther VRA standards are a bogus way to give an after the fact rationale for picking the states they wanted to pick.  (Others argue that those standards are still a good proxy for the states that need to be watched most closely and the number of lawsuits correlates with that reasoning.)  But I just don't have time for more. 

This should at least get some people aware of the thinking of the Justices who are likely to vote in favor of Shelby County. 

Undoubtedly, removing the checks on states and localities who have traditionally discriminated against Blacks and other ethnic groups, is likely to increase the number of disenfranchised voters.  After the fact remedies don't unelect people who got elected by voter suppression.  

I would note, that some argue that the Voting Rights Act actually helps Republicans by packing all the left leaning protected classes into a few very heavily Black (or in our case Native) districts, thus getting Democratic voters out of other districts.  There may be merit to that argument (some Black representatives win 90% of the vote), but just getting rid of Section 5 (that requires pre-clearance of changes) seems to do more harm to Black (and Native) voters than good.   I need more time to think this through. 

 *House members voting against renewal in 2006.  

State	# of No Votes	Congress Members Voting No
Alabama	2	Jo Bonner (R-AL) Terry Everett (R-AL)
Arizona	2	Trent Franks (R-AZ) John Shadegg (R-AZ)
California	6	John Campbell (R-CA) John Doolittle (R-CA) Wally Herger (R-CA)  Gary Miller (R-CA)  Dana Rohrabacher (R-CA)  Ed Royce (R-CA)
Colorado	2	Joel Hefley (R-CO) Thomas Tancredo (R-CO)
Georgia	6	Nathan Deal (R-GA)  Phil Gingrey (R-GA)  John Linder (R-GA)   Charles Norwood (R-GA) Tom Price (R-GA)   Lynn Westmoreland (R-GA)
Iowa	1	Steve King (R-IA)
Indiana	1	Dan Burton (R-IN)
Louisiana	1	Richard Baker (R-LA)
Maryland	1	Roscoe Bartlett (R-MD)
North Carolina	2	Virginia Foxx (R-NC) Patrick McHenry (R-NC)
New Jersey	1	Scott Garrett (R-NJ)
South Carolina	1	J. Gresham Barrett (R-SC)
Tennessee	1	John Duncan (R-TN)
Texas	6	Joe Barton (R-TX) Mike Conaway (R-TX) Jeb Hensarling (R-TX) Sam Johnson (R-TX)  Ron Paul (R-TX) William Thornberry (R-TX)

 Lavender indicates former member of Congress.

Shelby County Wants To Be Freed From Section 5 Of The Voting Rights Act - Supreme Court Decision Coming Soon

In Shelby County v  Holder, the Alabama county is asking the US Supreme Court to free it, and all other states affected, from Section 5 of the Voting Rights Act (VRA) which requires them to get pre-clearance from the Department of Justice  (DOJ) when it does things that affect people's ability to vote.

Alaska is also required to get pre-clearance form DOJ.  The case was heard in the US Supreme Court last February.   People who know more than I expect the decision to be announced sometime this month.

The Alaska Redistricting Board is hoping the decision will overturn Section 5 which requires them to get pre-clearance for any new redistricting plan before it can become adopted.  Indeed, the State of Alaska filed an amicus brief on behalf of Shelby County.  The Board had postponed finishing their plan until after the decision was made.  The Superior Court told them to get moving, but they've dawdled long enough that it's likely the decision will come out before they finalize their plan. 

A previous post has audio of the oral argument at the Supreme Court and a link to the transcripts.


What exactly is Section 5 of the Voting Rights Act (VRA) all about?

From the DOJ website:  (read this carefully, there will be a quiz)

Section 5 freezes election practices or procedures in certain states until the new procedures have been subjected to review, either after an administrative review by the United States Attorney General, or after a lawsuit before the United States District Court for the District of Columbia. This means that voting changes in covered jurisdictions may not be used until that review has been obtained. [That's the pre-clearance part.]

The requirement was enacted in 1965 as temporary legislation, to expire in five years, and applicable only to certain states. The specially covered jurisdictions were identified in Section 4 by a formula. The first element in the formula was that the state or political subdivision of the state maintained on November 1, 1964, a "test or device," restricting the opportunity to register and vote. The second element of the formula would be satisfied if the Director of the Census determined that less than 50 percent of persons of voting age were registered to vote on November 1, 1964, or that less than 50 percent of persons of voting age voted in the presidential election of November 1964. Application of this formula resulted in the following states becoming, in their entirety, "covered jurisdictions": Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia, In addition, certain political subdivisions (usually counties) in four other states (Arizona, Hawaii, Idaho, and North Carolina were covered. It also provided a procedure to terminate this coverage.

Under Section 5, any change with respect to voting in a covered jurisdiction -- or any political subunit within it -- cannot legally be enforced unless and until the jurisdiction first obtains the requisite determination by the United States District Court for the District of Columbia or makes a submission to the Attorney General. [Pre-clearance] This requires proof that the proposed voting change does not deny or abridge the right to vote on account of race, color, or membership in a language minority group. If the jurisdiction is unable to prove the absence of such discrimination, the District Court denies the requested judgment, or in the case of administrative submissions, the Attorney General objects to the change, and it remains legally unenforceable.

What are the issues in Shelby County v Holder?

(This will be what I got from listening to the oral arguments and some internet research.  I'm not a lawyer.  Nor have I read all the briefs.  So take this for what it's worth.  I'd also note that these issues are intertwined, so there is some overlap.)

First, note that the law was temporary - for five years.  That was back in 1965.  But it's been renewed various times, the last time being 2006 (under Bush) when the Senate approved it 98-0 and the House 390 -33.

1.  One key objection is that the law still uses the 1965 formula.  Shelby County argued that

• The laws and voting percentages in the formula are ancient history and none of the states still has them in place.  The problem is over.  Section 5 should be retired.
• The old formula is just a way to keep sticking it to the original covered states and that other states have worse problems.  All the states, or none, should be covered.

The DOJ argued that while the original problematic laws are gone, the jurisdictions covered keep finding "second generation" discriminatory practices that restrict or otherwise make it harder for Blacks and other protected classes to vote.   They argued the original formula is still a good proxy for the states with the biggest problems.

2.  Things have improved since 1965 and there is no longer a need for pre-clearance.  

DOJ points to a study of discrimination that found the problem still serious that was used by Congress to justify renewing the VRA in 2006.

3.  "On face review" or "applied"?

As I understand this distinction, an on face review looks at the formula in general, for all the states covered, and questions whether the formula is still a reasonable one.  An applied test would look at Shelby County and determine if Shelby County is still discriminating.  Shelby County chose to make an on face challenge, which allows it to focus on other jurisdictions rather than on Shelby County.

Justice Sotomayor challenged this approach:

"You're asking us to do something, which is to ignore your record and look at

everybody else's."

Justice Kagan questions this on the grounds that Alabama is number 1 in successful Section 2 suits and number 2 for Section 5 enforcement actions. (p. 5 15-22)


4.   Is Section 2 just as good as Section 5 for dealing with discriminatory practices?

•  Section 2's reactive remedies (you can file suit after the fact) works well enough making the extraordinary remedy of requiring pre-clearance of any voting law change unnecessary.

The DOJ argued that the deterrent effect was powerful and had made this an extremely effective piece of legislation.  Also, it was argued that while you could sue reactively to last minute changes such as moving polling places, the election would be over before it ever got to court and citizens would have been disenfranchised requiring far more disruptive and costly remedies than pre-clearance.

• Intent versus Effects - Section 5 looks at effects, Section 2 looks at an array of factors which you can see here.

This was discussed in an article in the National Review.  

"Section 5 bars changes in voting-related policies not only when they have a discriminatory purpose but also when they have a discriminatory “effect.” So, for example, a voter-ID requirement can be blocked even if it is nondiscriminatory in its terms, application, and intent — so long as a federal bureaucrat finds it might be more likely statistically that members of one racial group versus another will not have the needed identification. "

I'm sorry, but this seems to me a blatant attempt to discriminate.  He sees nothing wrong with a discriminatory effect as long as it wasn't intended.  The crux here is that it's extremely difficult to prove intent.  So legislators can make all the discriminatory laws they want, as long as they say it was not their intent and they haven't left any evidence of that intent.  I also don't see the relevance because as I read the Section 2 factors to be considered by a court, effects seem to be included. 

And,  I can't find this argument in the oral arguments.  There's discussion by Shelby County about results versus effects (which isn't clear enough for me to understand).  The NAACP speaking for upholding the VRA as it is, argued:

"What we've seen in Section 2 cases is that the benefits of discrimination vest in incumbents who would not be there, but for the discriminatory plan.  And Congress, and specifically in the House Report, I believe it's page 57, found that Section 2 continues to be an inadequate remedy to address the problem of these successive violations."

5.  Is the problem the original discriminatory voter tests or discrimination?

 There was some discussion about the problem that the VRA was aimed at.  Shelby County argued that the original problems - the ones in the formula such as voting tests - were long gone and thus Section 5 was no longer needed.  The DOJ argued that the problem was discrimination.  Voting tests were an indicator of discrimination, that were gone, but discriminatory practices were regularly created and updated. 

There were a couple of terms that were brought up by Justices Scalia ("racial entitlement") and Roberts and Kennedy ("reverse engineering") that I think are well worth commenting on and I'll try to do that in a future post.  

Although this legislation was approved in 2006 98-0 in the Senate and 390-33 in the House, court observers think there is a good chance the conservatives on the Court will overturn Section 5.  The oral arguments suggest a clear 4-4 split* with Justice Kennedy sounding skeptical of continuing the VRA Section 5, but at least open to change his mind.  And the oral arguments were just a 76 minute window in a case with lots and lots of documents, so we'll just have to wait and see. 

*This, of course, assumes that Justice Thomas will go along with the other conservatives, since he didn't ask any questions. 

It would be ironic because Shelby County and Alabama have a clear record of discrimination.

Shelby County is in Alabama, a state whose record makes clear that voting discrimination persists. During the last reauthorization period, Alabama had 240 discriminatory voting laws blocked by Section 5 or remedied by Section 2, another portion of the VRA that prohibits discriminatory tests or devices and applies nationwide. Today, even though African-Americans constitute more than one-quarter of the population, Alabama has no African-American statewide elected officials. For years, Shelby County relied on at-large districts to minimize black influence. Only after settling a lawsuit brought under the Voting Rights Act did the county agree to institute single-member districts. In 2008, Calera, one of the county’s six municipalities, submitted a redistricting plan that eliminated the town’s sole majority-black district, again in violation of the Voting Rights Act.   [From The Brennan Center.]

Their strategy was to sue, not on the facts of their situation, but by claiming the formula, for all the states and localities affected, was no longer valid. 


"Racial Entitlement" and "Reverse Engineering" were the ways that Antonin Scalia was framing the Voting Rights Act Section 5 that Shelby County was trying to get rid of.


Finally, I said there'd be a quiz and I try to keep my word:

1.  What are the two formulas from the 1965 Voting Rights Act that, if met, require states to get preclearance?
2.  What actions require preclearance?
(Answers above in post.)

Redistricting Board Gets Preclearance From DOJ

The Alaska Redistricting Board announced today that it received preclearance from the the Department of Justice for the Amended Proclamation Plan: 

Anchorage, Alaska - The Alaska Redistricting Board announced today that its Amended Proclamation Plan has received "preclearance" from the U.S. Department of Justice.

A copy of the preclearance letter is available for download here. 

Alaska Redistricting Board Chairman John Torgerson issued the following statement this afternoon:  

"Now that the Amended Proclamation Plan has been approved by both the Alaska Supreme Court and the U.S. Department of Justice, the 2012 elections can move forward without interruption. This is an important milestone for the Board and for the state of Alaska. We have worked hard to balance the multiple competing legal standards in building a plan that will fairly represent all Alaskans. Today's decision validates those efforts."

Under Section 5 of the federal Voting Rights Act, a number of states - including Alaska - are required to submit new redistricting plans to the U.S. Department of Justice for review in order to ensure that the proposed change is free from discriminatory purpose or effect and will not result in retrogression. An Alaska redistricting plan is retrogressive if it is drawn in a manner that worsens Alaska Native voting strength as compared to the previous district configurations.   

 Detailed information about the Section 5 review process can be accessed at http://www.justice.gov/crt/about/vot/sec_5/about.php. 

This means that the Department of Justice did not find the plan to be retrogressive - or to give Alaska Natives less of a chance of electing candidates of their choice than the last plan established ten years ago.  Alaska needs the preclearance before its plan can be implemented.  Since the Amended Plan is relatively close to the original plan that was rejected by the Alaska Supreme Court for other reasons, the preclearance was expected, but not certain. 

However, the letter from Assistant Attorney General Thomas E. Perez does say lack of objections by the Attorney General "does not bar subsequent litigation."

This Amended Plan was approved by the Alaska Supreme Court for the August 2012 primary and the November election.  But it was accepted by the Supreme Court because the Board said there wasn't enough time to create a new plan the way the Court required in time for the election.  So it would appear that the Board either has to come up with another plan that gets Supreme Court and DOJ approval - for the rest of the decade.  Or, they have to convince the Supreme Court to let them permanently adopt the Amended Plan.