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Tuesday’s Supreme Court Watch (UPDATED: Section 4 of Voting Rights Act Declared Unconstitutional)

Supreme Court of the United States (SCOTUS)


– Shelby County v Holder – Section 4 of VRA declared unconstitutional, Roberts writing for majority

– Tomorrow at 10am the remaining decisions from the October 2012 term will be released

– The Moose will liveblog starting at 9am Eastern

Today more decisions on the merit cases argued in the October 2012 term will be announced starting at 10am Eastern.

SCOTUS Blog for liveblog starting at 9:00am Eastern.  

The remaining cases in PDF format: Cases Remaining for October Term 2012 (not updated to reflect the 5 decided yesterday).

Pending cases include:

– Shelby County v. Holder 12-96, heard 02/27/2013, (Voting Rights Act)

– Hollingsworth v. Perry 12-144, heard 03/26/2013 (Prop 8)

– United States v. Windsor 12-307, heard 03/27/2013 (DOMA)

Here is the summary of the cases many of us are watching closely this week:

Hollingsworth v. Perry 12-144 CA9 Mar 26, 2013

(1) Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman; and (2) whether petitioners have standing under Article III, ยง2 of the Constitution in this case.

Shelby County v. Holder 12-96 CADC Feb 27, 2013

Whether Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.

United States v. Windsor 12-307 CA2 Mar 27, 2013

(1) Whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State; (2) whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and (3) whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

Some SCOTUS news and commentary, found on the Internets:

Amy Howe at SCOTUSBlog – Plain English Explanation of Yesterday’s Fisher Decision


Amy Howe at SCOTUSBlog – Waiting on Proposition 8 and DOMA decisions: In Plain English

Over four years ago, superlawyers Ted Olson and David Boies – who opposed each other in the Bush v. Gore presidential election case – came together to challenge California’s ban on same-sex marriage on behalf of two California couples.  In the next few days, the Supreme Court is finally expected to rule on whether that ban (known as Proposition 8) and the federal Defense of Marriage Act – which limits marriage to a union between a man and a woman for purposes of federal law – are constitutional.  But then again, it might not . . . .  So let’s talk about the same-sex marriage cases and what the Court could do with them in Plain English.


WaPo: How the Supreme Court could rule on same-sex marriage, in 1 interactive chart

To help make sense of how the court could rule and what it will mean across the country, we are reposting this fabulous Washington Post interactive graphic. You can explore all the possibilities and look at which states the decisions would affect.

h/t DeniseVelez



  1. iriti

    After doing my Negative Nellie for weeks, I am going to prognosticate that we will actually get rulings in at least one, perhaps two of the big three today.

    I’m guessing one and would be very surprised at all three. But as the evidence has shown from the success rates of SCOTUS prognosticators lately, really who knows.

  2. Amy Howe:

    The holding: The government’s demand for property from a land use permit applicant must satisfy the Nolan and Dolan requirements even when it denies the permit.

    The vote is 5-4.

    Justice Kagan dissents, with Ginsburg, Breyer, and Sotomayor.

    This is a significant victory for property rights advocates complaining about permitting conditions on their building

  3. The holding: Assuming for the sake of argument that the biological father is a parent under the Indian Child Welfare Act, neither of the two sections at issue bars the termination of his parental rights

    There is a dissent by Justice Scalia; there is a dissent by Sotomayor which Ginsburg and Kagan join and Scalia joins in part.

  4. Shelby County. The Chief writes.


    Amy Howe:

    Holding: Section 4 of the Voting Rights Act is unconstitutional. Its formula can no longer be used as a basis for subjecting jurisdictions to preclearance.


    Amy Howe:

    Thomas concurs. Ginsburg dissents, joined by Breyer Sotomayor, and Kagan.

  5. iriti

    Holding: Section 4 of the Voting Rights Act is unconstitutional. Its formula can no longer be used as a basis for subjecting jurisdictions to preclearance.

  6. HappyinVT

    Amy Howe:

    The Court makes clear that: “Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in [Section] 2. We issue no holding on [Section] 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions”

    This Congress?

  7. HappyinVT

    LemieuxLGM 10:12am via Web

    I wonder what the vote lineup on that 5-4 decision will be? #electionsdontmatter #partiesarethesame

    Retweeted by tbogg

  8. bubbanomics

    Alito’s reaction to Ginsburg’s dissent from the bench also drew comments, bringing up comparisons to his last visit to the State of the Union address, in 2010. As President Obama criticized the court’s decision in Citizens United v. Federal Election Commission, Alito shook his head and mouthed the words “not true.”

    He was only slightly less demonstrative while Ginsburg spoke Monday, shaking his head and appearing to roll his eyes as she described a “typical, and not at all hypothetical” example of on-the-job harassment.

    I saw this on wapo this morning.  what an ass.

  9. HappyinVT

    SCOTUSblog 10:17am via Web

    From the dissent: The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective.

  10. HappyinVT

    aterkel 11:02am via TweetDeck

    Ginsburg: “All told, between 1982 and 2006, DOJ objections blocked over 700 voting changes based on…the changes were discriminatory.”

  11. Portlaw

    will put it here. The Moose has been outstanding the last few days with the diaries on Texas and SCOTUS. Thanks.

  12. Leahy: I Will ‘Take Immediate Action’ To Bolster Voting Rights Act

    “Section 5 of the Voting Rights Act has protected minorities of all races from discriminatory practices in voting for nearly 50 years, yet the Supreme Court’s decision to overturn the coverage formula effectively guts the ability of Section 5 to protect voters from discriminatory practices,” he said in a release. “I could not disagree more with this result or the majority’s rationale. The Voting Rights Act has been upheld five times by the Supreme Court on prior occasions, and Section 5 was reauthorized and signed into law by a Republican President in 2006 after a thorough and bipartisan process in which Congress overwhelmingly determined that the law was still vital to protecting minority voting rights and that the coverage formula determining the jurisdictions to be covered was still applicable.

    NAACP On VRA Decision: An ‘Act Of Extraordinary Judicial Overreach’

    “The Supreme Court ruling takes the most powerful tool our nation has to defend minority voting rights out of commission,” Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, wrote in a statement Tuesday. “By second-guessing Congress’ judgment about which places should be covered by Section 5 of the Voting Rights Act, the Court has left millions of minority voters without the mechanism that has allowed them to stop voting discrimination before it occurs. This is like letting you keep your car, but taking away the keys. “

    Constitutional Accountability Center Condemns SCOTUS Voting Rights Act Ruling

    “Today is a sad day for all Americans who care about protection of one our most fundamental rights, the right to vote,” said David Gans, the center’s civil rights director, in a press release. “In striking down a core provision of the Voting Rights Act, the Court flouts the text and history of the Fifteenth Amendment, which expressly give to Congress broad powers to prevent and deter all forms of racial discrimination in voting.

    Pelosi: Congress Must Take Action To Strengthen Voting Rights Act

    “In 2006, Democrats and Republicans came together to reauthorize the law, garnering overwhelming bipartisan support in a Republican-led Congress – passing the House by a vote 390-33 and the Senate by a vote of 98-0, then signed into law by President George W. Bush,” she said in a statement. “This year, we must follow in that same tradition, taking the court’s decision as our cue for further action to strengthen this legislation.”

  13. Cheryl Kopec

    Sorry, I wasn’t in front of the TV when I heard this a few minutes ago on MSNBC, so I don’t know who said this, but from the other room I heard someone say that using criteria from 4-5 decades ago IS wrong — times have changed and state laws have changed. We now have other states not covered by the original formula that have enacted arbitrary and onerous voting requirements. Congress should update the formula to address current conditions.

    In an ideal world, I think we could all agree with that. If Congress were actually functional and dedicated to doing the people’s work, I think we would all be cheering today’s decision. The only reason the decision is bad is because it puts the onus on Congress to do the right thing, which means the decision isn’t really bad — it’s just that Congress is hopeless.


  14. DeniseVelez

    on the way here.

    If hear one more person calling themselves progressive who says they won’t vote for democrats in 2014 and 2016 I’m going to lose it.

    This is why SCOTUS is so friggin important.


  15. HappyinVT

    Texas to Move Quickly on Voter Laws and Maps

    Within two hours of the Supreme Court’s decision on the Voting Rights Act, Greg Abbott, the attorney general for the state of Texas, announced that a voter identification law that was blocked last year by the Justice Department would go into effect.

    “With today’s decision, the state’s voter ID law will take effect immediately,” he said in a statement. “Redistricting maps passed by the legislature may also take effect without approval from the federal government.”

    In March 2012, the Justice Department objected to Texas’ voter identification law, finding that under certain data sets “Hispanic registered voters are more than twice as likely as non-Hispanic registered voters to lack such identification,” and that the locations and hours of license offices made it difficult for many Hispanics to attain that identification.…  

  16. Attorney General Eric Holder Delivers Remarks on the Supreme Court Decision in Shelby County V. Holder ~ Tuesday, June 25, 2013

    Good afternoon.  Today, the U.S. Supreme Court announced its decision in the case of Shelby County v. Holder – and invalidated an essential part of the Voting Rights Act, a cornerstone of American civil rights law.  Like many others across the country, I am deeply disappointed with the Court’s decision in this matter.  This decision represents a serious setback for voting rights – and has the potential to negatively affect millions of Americans across the country.

    In the nearly half-century since its initial passage – in 1965 – the Voting Rights Act has consistently enjoyed bipartisan support in Congress as well as the Executive Branch.  After extensive hearings, Sections 4 and 5 of this important law were reauthorized most recently in 2006, with the unanimous support of the U.S. Senate and the near-unanimous support of the House of Representatives.  This is a uniquely legislative function and responsibility that the Constitution expressly gave to Congress.    The last reauthorization was signed into law by President George W. Bush – just as prior reauthorizations had been signed by Presidents Reagan, Ford, and Nixon – in accordance with core nonpartisan American values.

    After all, as Congress correctly recognized in the hearings held in 2006 – racial and language minorities face significant voting discrimination in some parts of our country.  Given the successful decisions in the Department’s Voting Rights Act cases over the last 18 months, the need for a vital – and intact – Voting Rights Act remains clear.

    Last year, a federal court cited the value of the Voting Rights Act in blocking the Texas congressional redistricting map on the grounds that it discriminated against Latino voters.  In that case, the court noted that the parties “provided more evidence of discriminatory intent than we have space, or need, to address here.”  The federal court that reviewed South Carolina’s photo ID law also noted the “vital function” that the Voting Rights Act played in prompting the state to change how it will implement the statute in future elections so that it would no longer disproportionately impact black voters.  Without the Section 4 coverage formula, neither of these discriminatory voting changes would have been subject to review and both could have been implemented immediately.

    These are just two of many examples demonstrating that these problems have not been consigned to history – they continue to exist.  Their effects are real, they are of today – not yesterday – and they corrode the foundations of our democracy.  Our country has changed for the better since 1965 but the destination we seek has not yet been reached.  Indeed, a reading of today’s opinions demonstrates that every member of the Supreme Court agrees with this fact – as the Chief Justice wrote, “voting discrimination still exists: no one doubts that.”   This is why protecting the fundamental right to vote – for all Americans – will remain one of the Justice Department’s highest priorities.

    The Department of Justice will continue to carefully monitor jurisdictions around the country for voting changes that may hamper voting rights.  Let me be very clear:  we will not hesitate to take swift enforcement action – using every legal tool that remains available to us – against any jurisdiction that seeks to take advantage of the Supreme Court’s ruling by hindering eligible citizens’ full and free exercise of the franchise.

    As the President has made clear, Congress needs to act to make sure every American has equal access to the polls.  The Department also will work with Congress and other elected and community leaders to formulate potential legislative proposals to address voting rights discrimination – because, on their own, existing statutes cannot totally fill the void left by today’s Supreme Court ruling.  And I am hopeful that new protections can and will pass in this session of Congress.

    The Voting Rights Act has always had strong bipartisan support on Capitol Hill, and today’s ruling should not change that.  This is not a partisan issue, it’s an American issue – because our democracy is founded on ensuring that every eligible citizen has access to the ballot box.

    Finally, we need to be clear about what happened today.  Part of the Voting Rights Act, but not all of it, was struck down.  The  constitutionally protected voting rights of all Americans remain fully intact.  And the right to vote, free from discrimination based on race or language, requires our vigilant protection.  We know from many decades of long, hard struggle that the best way to defend a right is to go out and exercise it.  So no one should conclude that today’s unfortunate decision has rendered her or his voting rights invalid, or has made attempting to cast a ballot on Election Day futile.

    To the contrary, it is incumbent on all American citizens to stand up for their rights by registering to vote, going to the ballot box, exercising that most fundamental of  rights, and voting for their preferred candidates of any party.  Our democracy is dependent on each of us, and on our active participation in the electoral process.  Although today’s decision represents a serious and unnecessary setback, the Justice Department remains committed to moving forward in a manner that’s consistent with the arc of American history – which has always been a story of increasing equality, inclusion, and access to the franchise.  This is what makes the United States of America truly exceptional. And this is what we will zealously guard.

    Thank you.

    Emphasis mine. And repeated:

    Let me be very clear:  we will not hesitate to take swift enforcement action – using every legal tool that remains available to us – against any jurisdiction that seeks to take advantage of the Supreme Court’s ruling by hindering eligible citizens’ full and free exercise of the franchise.

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