SCOTUS strikes down Section 4(b) of the Voting Rights Act

From Fox News:

In a major ruling, the Supreme Court on Tuesday voided a provision of the Voting Rights Act that determines which state and local governments have to seek federal permission to change their voting laws.  [Chief Justice Roberts] clarified that the provision requiring advance approval of voting law changes — known as Section 5 — was not being struck down. Rather, the court found that the provision pertaining to the formula, known as Section 4, was unconstitutional.

My Facebook and Twitter have been blowing up with conservative friends hailing the decision.  I’ve not seen too much from my more liberal minded friends, but it may be because they resigned themselves to this fate a while ago knowing the makeup of the Court.  As it stands, there is an important distinction to make between these two provisions of the law and how that may come to make conservatives not-too-happy in the future.

Section 5 – the enforcement provision of the Voting Rights Act – allows for the Department of Justice to give “pre-clearance” to any change in a state’s election provisions.  Section 4(b) is what creates the test determines if the enforcement provision apply to the various jurisdictions on which it is enforced.  It reads:

(b) The provisions of subsection (a) shall apply in any State or in any political subdivision of a state which (1) the Attorney General determines maintained on November 1, 1964, any test or device, and with respect to which (2) the Director of the Census determines that less than 50 percentum of the persons of voting age residing therein were registered on November 1, 1964, or that less than 50 percentum of such persons voted in the presidential election of November 1964.

In striking down that part of the law, as opposed to Section 5, the law is not permanently dead and finding ways to truly fight racism in voting.  With a liberal enough Congress and President, a conceivably more expansive and arbitrary formula can be devised and be wholly permissible under CJ Roberts’s decision.

Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in §2. We issue no holding on §5 itself, only on the coverage formula. Congress may draft another formula based on current conditions. Such a formula is an initial prerequisite to a determination that exceptional conditions stillexist justifying such an “extraordinary departure from the traditional course of relations between the States and the Federal Government.” Presley, 502 U. S., at 500–501. Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks tocurrent conditions.

That frightens me.  To give Congress that authority now or in the future fails to reasonably address what creates the conditions for racism today, and it isn’t de jure discrimination on the part of a governing body.  It’s a philosophical problem when racism exist, and it is something that can only be remedied by better educating our public and recognizing the value of individual people in our society.  Frankly, our government does a horrible at that aspect.  Conservatives can rejoice today, but I fear there is the possibility of a short lived victory.  The enforcement provision lives, and that’s a scary thought indeed.

Late Night Sunday Obligatory Post

So, after the long day Saturday and a fun filled day today, I’m making my obligatory late night post.  That said, a couple of things.

First, the good folks up in Cherokee County and Bartow County deserve a ton of credit for hosting the Proud to be a Republican event today up at Red Top Mountain State Park.  It also reminded me why exactly I’m proud to call myself a Republican, especially here in Georgia.  We’re going to disagree with policy and candidates in a particular election.  That much is clear, but that’s not necessarily a bad thing.  I had good conversations today with folks that are damn good people, and I believe I can call them friends.  Philosophically I have a lot in common with these folks, and the fact that I can enjoy a nice Sunday afternoon with them makes it better.  Events like today should remind us of that.

Another topic of conversation that I had with a few folks is the State Committee meeting in Milledgeville yesterday.  I stood opposed to the original resolution concerning the GAGOP switching to a nominating convention from the current primary system.  I also opposed to “alternative” resolution concerning the creation of a study committee.  Here is why, part of which includes my comments from yesterday and part of which includes some additional reasoning.

The nature of the original resolution spoke about how the grassroots is insulted in the current primary process, so I don’t understand how a committee of 14 (or 15 with a Chairman if independently appointed) is an any way a better way to determine the facts.  We have 800k voting Republicans in this state that have a concern about what party principles look like and sound like, and while they may not be party activists, I don’t buy the bold assertion they are “uninformed” voters.  They deserve a seat at the table the same as I do, and I find it insulting that a committee can decide the facts for everyone.  I’d find it insulting if the State Committee felt the need to make that same determination.

Moreover, another point that I think was well made by Gus Makris (a fellow Cobb County resident located in the 6th Congressional) is that passage or failure does nothing to prevent this debate from continuing where it should – in the public and our communities.  In fact, I’d find a resolution like this far more damaging to that conversation and the people who would in engage in it.  At the point where they are removed, the “Republican Party” will now speak to the legislature after the debate of fourteen people in a (virtual) room.  Opponents of a nominating caucus do not get to speak with the amplified voice they would have by vociferous opposition.  Proponents, and rightly so, would have grounds to say they couldn’t have had a reasonable opportunity to fight the “establishment” if the study committee would have recommended nothing be done.  By allowing the voters to debate and ultimately decide for themselves the best method of choosing their candidates in contested primaries, we allow true grassroots participation to do what it does best – influence change.

Brant Frost and I have had a chance to speak over the phone about possibly having a debate on this very topic.  Whether the logistics of that are feasible for both of us remains to be seen, but what’s most important is that it reflects a true opportunity to clash on these ideas.  Hopefully it takes place, but if it does not, the debate will continue as it should.  Personally, I see why proponents of the caucus system would want the rules changed.  I don’t agree with their why, though, and I certainly don’t condone the impact it would have on hundreds of thousands of Georgians.

Maybe a system like Colorado or Utah is warranted, maybe it’s not.  Maybe we close our primaries to registered Republicans, or maybe we maintain the status quo of declaring at the polls.  Either way, the debate will continue and take place exactly where it should – anywhere that isn’t a select committee appointed by the Republican Party.

State Committee Meeting Thread

Okay, folks.  This will attempt to be the thread I use to keep folks updated about the GAGOP State Committee. I’m using the tablet, so bear with me…and, I’m not going to update you on the pledge. It is gonna happen.

Share this ’round, people.

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Objection #2 – The caucus system only entrenches the “establishment”

Claim:  The caucus system will break the hold “establishment” Republicans have on the party.

The basic logic here is a nominating convention will remove authority from a select few powerbrokers to “annoint” their chosen candidate.  The powers that be that brought us John McCain, Mitt Romney, Saxby Chambliss, etc. etc.  If we want “true” conservatives, we’ll use a nominating convention to select those candidates.

Retort 1:  Guess what…if you’re voting on a convention floor, you’re part of the establishment.

That might not sit well with many of the proponents of a caucus system, but it’s absolutely true.  You’re not on the convention floor without a delegate badge.  You’re not going to vote without a delegate badge.  You don’t have a right to speak to the motions being considered without a delegate badge.  You don’t get a delegate badge without jumping through a number of hoops, and even if not every seat available under the rules of the Georgia Republican Party is taken, there are certainly far fewer delegates than primary Republican voters in the state.

That said, let’s do some math here.  Suppose that 2,000 credentialed delegates attend the state convention (a generous assumption).  For the 2010 Republican Primary, they would have represented a mere 2.9-tenths of a percent (0.29%) of the voters.  In 2012, it would be a paltry 2.3 tenths of a percent (0.23%).  To represent just 1% of the Republican voting population, the convention could expand to an unruly 8,000 or so delegates.  That raises a number of other questions – will they show up – but that’s beside the point.  1% of the Republicans in this state is still not sufficient enough to make a decision for non-delegate Republicans that have no recourse.

That, of course, represents why you’re part of the establishment.  If you’re a delegate, there’s also no recall process.  No way to hold you accountable to the decision that you’re going to make or, more importantly, the decision that the other voters would like you to make as their representative voice on the convention floor.  Yes, you’re part of the establishment if you’re a delegate to the state convention.  Just to put this in perspective, take this account of the Republican Party of Virginia’s nominating convention:

RPV’s State Central Commitee – the “establishment” of the Republican Party of Virginia – voted on Friday 51-21 to nominate our statewide Senate candidate next year by convention.  Those of us who want primaries are not the establishment in Virginia, we’re the folks on the outside complaining about the outdated, discriminatory and elitist nominating process where only people who have nothing better to do on a spring Saturday than sit in an arena covered in stickers for fifteen hours get to choose our nominees.

To claim you’re not part of the “establishment” is intellectually dishonest.  To be truly honest, it’s time that term is thrown out altogether when referencing colleagues on the State Committee or convention delegates.

Retort 2:  Activists are not entitled to their choice of candidates anymore than non-activists are.

There seems to be this common mentality among activists that we are the “smart” ones about politics.  Obviously…otherwise, we wouldn’t be activists if we weren’t so smart.  Regardless of how smart we are (not), sometimes there are things that you cannot get around.  One of those sticky details is the fact that voters are one person, and outside of extreme cases – like being a convicted felon – your right to vote is as absolute as anyone else’s.  So, essentially being an activist doesn’t entitle you to any more authority than a business owner, soccer mom, college student, etc. etc.  That may not be an easy idea to accept, but it’s true.

There’s a reason for that, too.  Politics is really no different than owning a small business, taking your kids to soccer practice, or attending pesky summer classes.  It’s a passion that many people have, and we as activists have a drive to succeed in the political arena the same as others do in their own.  Furthermore, many activists are only so because it is a means to obtain new business prospects or obtain college credit.  The point being is we all have our reasons for being involved, and no reason is more important than the other.  “Pure” philosophical justifications are not an appropriate litmus test to determine whether or not someone should have a right to participate in selecting Republicans.

Let’s look back at the RPV convention again and Schoeneman’s observations:

We have all heard the arguments over the years about disenfranchisement of military members, parents with small children who can’t afford the cost of childcare, small business owners who can’t afford to give up a spring Saturday to the convention, the elderly who can’t go for 16 hours at a time, and the rest.  That was clearly in evidence yesterday, given that by the time the fourth ballot rolled around, over a third of the conventioneers who had showed up had left.  The final ballot saw fewer that 5,000 votes cast.

The rules for candidate nomination make participation easy now.  Early voting gives you a couple of weeks before election day to cast your ballot, and generally the primary polling places are easy to get in and out of.  Changing the rules to reduce the number of electors is nothing more than limiting the influence of others that activists have little control over (or so they think).  I’ll tell you what, though.  Get out and campaign, and you’re likely to find that influence the “establishment” has falls apart.

Objection #1 – The caucus system only hides the influence of money in politics

As I mentioned yesterday, I’d communicate some of my personal objections to the proposed caucus system for nominating candidates.  This is the first.  In a general overview before I get started, here’s how I’ll present the post.  Claim – Retort 1, Retort 2…Retort x.  In doing so, I hope to directly engage the arguments made by proponents and present clear, factually based retorts.  That said, let’s get started!

Claim:  The caucus system will prevent expensive Republican primaries and save more money for the general election.

The basic logic goes that removing the need to communicate with a million voters in a statewide election will remove the need to spend millions in a primary election contest.  No need for expensive commercials.  No need for expensive direct mail.  No need for all the t-shirts, kitsch, and swag that comes with campaigning.  Less overall money is spent, and therefore candidates with fewer resources can reasonably compete against “established” candidates.

Retort 1:  It’s factually wrong to make the claim that candidates with “less money” operate on an evened playing field.

One state that proponents of the caucuses point to is Utah, where 2010 saw then Sen. Bob Bennett ousted on the heels of a state convention that turned against him.  Thanks to the nominating convention, Utah is not represented by a “proper” conservative Sen. Mike Lee.  Now, inevitably proponents will show that Bennett spent over $1 million from the 2009 year-end to the preconvention reports.  They will also likely point to Tim Bridgewater spending only $174, 024 and Mike Lee spending only $82,803 and say “See!  We told you so!”  However, a couple of things to keep in mind.

First, the amount of money available to Bennett demonstrates that, in and of itself, money is not removed from the convention nominating process.  Incumbency, as Bennett shows, has a large part to do with that ability of big money donors from contributing.  Also, the fact that Orrin Hatch learned from Bennett’s mistakes and outspent his opponent in 2012 nearly 10-1, nearly winning the convention nomination outright with 59.2% of the delegate votes, demonstrates that big money still influences.  Second, those campaign report totals ignore the reality that outside groups pumped thousands into the race to the tune of $793,554; Bennett never received a supportive dollar of that.  Third, if you’ve never heard of these folks – Cherilyn Eagar, Merrill Cook, Leonard Fabiano, Jeremy Friedbaum, David Chiu – they never had the big money support the other three guys did, and therefore crashed out in the first round of voting at the convention.

Quite plainly, big money influences caucus elections all the same as primary elections.  Oh yeah, I almost forgot – Mike Lee nearly lost at the convention as well.  Bridgewater won 57% of the convention delegates, but lost the subsequent primary election 49%-51%.

Retort 2:  The proper measure is dollar per votes, not total dollars spent, and you can buy a whole lot of votes with a whole lot less money…

In the previous election for Governor, Republicans had 658,499 votes cast in the first round.  Let’s just take the top four contenders and evaluate how much they spent on their campaign and how much per vote received they spent.Just taking the four real contenders in the race, Handel received 231,990, Deal received , Johnson received , and Oxendine received .

Candidate Votes Total Spent $$/Vote
Karen Handel 231,990 $1,091,576.89 $4.71
Nathan Deal 155,946 $1,936,014.76 $12.41
Eric Johnson 136,792 $1,771,074.06 $12.95
John Oxendine 115,421 $1,320,969.81 $11.44

Just for the sake of conversation, let’s suppose a statewide candidates spend an average of these four candidates – $10.38 – on, say, roughly 2,500 people attending the convention in various fashions.  That would literally mean they are going to spend only $25,000 during the primary process, especially when each of the candidates raised near or more than $2,000,000??  Sorry, folks, but you’re lying to yourself if you believe that is what is going to happen.  The amount of money that candidates can spend on a very minute share of the voting population that can influence that election will be ridiculous.  Orrin Hatch is the perfect example of that.  “Big Money” isn’t the raw amount you spend.  Often times better run campaigns simply spend and raise less because they cannot afford largesse.

Retort 3:  …and while we’re talking about dollars spent per vote, it’s a bit harder to trace and monitor transparently when we’re talking about conventions and caucuses.

The law is pretty clear – you cannot pay people to vote.  O.C.G.A. § 21-2-570 says:

Any person who gives or receives, offers to give or receive, or participates in the giving or receiving of money or gifts for the purpose of registering as a voter, voting, or voting for a particular candidate in any primary or election shall be guilty of a felony.

That said, candidates are free to spend money on television, mail, volunteers, parties, festivals, balloon animals, and a whole slew of other activities that campaigns engage in.  Now, imagine all that money spent on a voting population that comprises less than 1% of the general Republican electorate statewide.  It wouldn’t be difficult for a campaign to spend $50,000 on a pre-convention party with open bars, diverse delectables, and a slew of other goodies.  Or how about wining and dining county delegations in the runup to the convention; a candidate would only have to conceivably spend $125,000 to take every registered delegate to a $50 dinner.  Would offering to pay hotel rooms be too far?  It’s hard to say votes are “bought” that way.

Furthermore, you cannot draw that line on spending limits per delegate for a couple of reasons.  First, Buckley v. Valeo struck down spending limits as an unconstitutional infringement on free speech.  Secondly, it just seems rather un-Republican to start finding out ways we can pass state laws to “make things fair” when we know that state law has a tendency to create unintended consequences.

The amount of money and influence that can reasonably be peddled will be astonishing.  The money donors will give is still available; donors won’t stop giving just because the state instituted a new nominating process.  And, even if they do, it won’t reduce the influence of big money.  The amount of money spent on each “voter” will just increase the likelihood of corruption and graft in the nominating process.  Then, of course, there’s this little tidbit of analysis coming from the National Journal in discussing the nominating of religious conservative E.W. Jackson:

Blame Cuccinelli, who steered the party away from holding a potentially more competitive primary and toward a convention that ensured his nomination but left the lieutenant governor’s slot up to only a few thousand hard-core activists to fill.