A great George Will on the upcoming battle

[Duncan]

Okay, let me explain something about the Voting Rights Act ... Actually, let's let Justice Kennedy explain the Voting Right Acts to you:

In 1965, the Attorney General designated Georgia a covered jurisdiction under §4( of the Voting Rights Act, 79 Stat. 438, as amended, 42 U.S.C. § 1973b( (Act). 30 Fed. Reg. 9897 (1965); see 28 CFR pt. 51, App.; see also City of Rome v. United States, 446 U.S. 156, 161 (1980). In consequence, §5 of the Act requires Georgia to obtain either administrative preclearance by the Attorney General or approval by the United States District Court for the District of Columbia of any change in a "standard, practice, or procedure with respect to voting" made after November 1, 1964. 42 U.S.C. § 1973c. The preclearance mechanism applies to congressional redistricting plans, see, e.g., Beer v. United States, 425 U.S. 130, 133 (1976), and requires that the proposed change-not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." 42 U.S.C. § 1973c. "[T]he purpose of §5 has always been to insure that no voting procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." Beer, supra, at 141.

Between 1980 and 1990, one of Georgia's 10 congressional districts was a majority black district, that is, a majority of the district's voters were black. The 1990 Decennial Census indicated that Georgia's population of 6,478,216 persons, 27% of whom are black, entitled it to an additional eleventh congressional seat, App. 9, prompting Georgia's General Assembly to redraw the State's congressional districts. Both the House and the Senate adopted redistricting guidelines which, among other things, required single member districts of equal population, contiguous geography, nondilution of minority voting strength, fidelity to precinct lines where possible, and compliance with §§2 and 5 of the Act, 42 U.S.C. §§ 1973 1973c. See App. 11-12. Only after these requirements were met did the guidelines permit drafters to consider other ends, such as maintaining the integrity of political subdivisions, preserving the core of existing districts, and avoiding contests between incumbents. Id., at 12.

A special session opened in August 1991, and the General Assembly submitted a congressional redistricting plan to the Attorney General for preclearance on October 1, 1991. The legislature's plan contained two majority minority districts, the Fifth and Eleventh, and an additional district, the Second, in which blacks comprised just over 35% of the voting age population. Despite the plan's increase in the number of majority black districts from one to two and the absence of any evidence of an intent to discriminate against minority voters, 864 F. Supp. 1354, 1363, and n. 7 (SD Ga. 1994), the Department of Justice refused preclearance on January 21, 1992. App. 99-107. The Department's objection letter noted a concern that Georgia had created only two majority minority districts, and that the proposed plan did not "recognize" certain minority populations by placing them in a majority black district. Id., at 105, 105-106.

The General Assembly returned to the drawing board. A new plan was enacted and submitted for preclearance. This second attempt assigned the black population in Central Georgia's Baldwin County to the Eleventh District and increased the black populations in the Eleventh, Fifth and Second Districts. The Justice Department refused preclearance again, relying on alternative plans proposing three majority minority districts. Id., 120-126. One of the alternative schemes relied on by the Department was the so called "max black" plan, 864 F. Supp., at 1360, 1362-1363, drafted by the American Civil Liberties Union (ACLU) for the General Assembly's black caucus. The key to the ACLU's plan was the "Macon/Savannah trade." The dense black population in the Macon region would be transferred from the Eleventh District to the Second, converting the Second into a majority black district, and the Eleventh District's loss in black population would be offset by extending the Eleventh to include the black populations in Savannah. Id., at 1365-1366. Pointing to the General Assembly's refusal to enact the Macon/Savannah swap into law, the Justice Department concluded that Georgia had "failed to explain adequately" its failure to create a third majority minority district. App. 125. The State did not seek a declaratory judgment from the District Court for the District of Columbia. 864 F. Supp., at 1366, n. 11.

Twice spurned, the General Assembly set out to create three majority minority districts to gain preclearance. Id., at 1366. Using the ACLU's "max black" plan as its benchmark, id., at 1366-1367, the General Assembly enacted a plan that

"bore all the signs of [the Justice Department's] involvement: The black population of Meriwether County was gouged out of the Third District and attached to the Second District by the narrowest of land bridges; Effingham and Chatham Counties were split to make way for the Savannah extension, which itself split the City of Savannah; and the plan as a whole split 26 counties, 23 more than the existing congressional districts." Id., at 1367; see Appendix A (attached).

http://straylight.law.cornell.edu/supct/html/94-631.ZO.html

I know that is a little long, but the point is that Georgia drew that district to comply with the Voting Rights Act. Basically, since Georgia has a history of suppressing Black votes, the Voting Rights Act places it under close supervision of the Justice Department. The main reason Georgia drew that district in such an awkward shape was to comply with Justice Department mandates. Ginsburg is not invoking the Voting Rights Act out of the blue in her dissent; it is actually an essential part of the case.

Ginsburg's dissent argues that where a state legislature approved a district to comply with the Voting Rights Act, the Courts should defer to a decision approved by both the Executive and Legislative Branches.

If you think that allowing discrimination based on race to achieve a preferred political outcome is okay, consider this dissent by Scalia in Powers v. Ohio, where he argues that it is okay for a prosecutor to use peremptory challenges to strike Black people from a jury:

All citizens have the equal protection right not to be excluded from jury service (i.e., not to be excluded from grand and petit jury lists) on the basis of irrelevant factors such as race, Carter v. Jury Commission of Greene County, 396 U.S. 320 (1970), or employment status, cf. Thiel v. Southern Pacific Co., 328 U.S. 217 (1946). As Swain suggested, this principle would also prohibit the systematic exclusion of a particular race or occupation from all jury service through peremptory challenges. When a particular group has been singled out in this fashion, its members have been treated differently, and have suffered the deprivation of a right and responsibility of citizenship. But when that group, like all others, has been made subject to peremptory challenge on the basis of its group characteristic, its members have been treated not differently, but the same. In fact, it would constitute [p424] discrimination to exempt them from the peremptory strike exposure to which all others are subject. If, for example, men were permitted to be struck but not women, or fundamentalists but not atheists, or blacks but not whites, members of the former groups would plainly be the object of discrimination.

In reply to this, it could be argued that discrimination is not legitimated by being applied, so to speak, indiscriminately; that the unlawfulness of treating one person differently on irrelevant grounds is not erased by subjecting everyone else to the same unlawfulness. The response to this is that the stricken juror has not been "treated differently" in the only pertinent sense -- that is, in the sense of being deprived of any benefit or subjected to any slight or obloquy. The strike does not deprecate his group, and thereby "stigmatize" his own personality. Unlike the categorical exclusion of a group from jury service, which implies that all its members are incompetent or untrustworthy, a peremptory strike on the basis of group membership implies nothing more than the undeniable reality (upon which the peremptory strike system is largely based) that all groups tend to have particular sympathies and hostilities -- most notably, sympathies towards their own group members. Since that reality is acknowledged as to all groups, and forms the basis for peremptory strikes as to all of them, there is no implied criticism or dishonor to a strike. Nor is the juror who is struck because of his group membership deprived of any benefit. It is obvious, as Strauder acknowledged, that a defendant belonging to an identifiable group is benefited by having members of that group on his jury, but it is impossible to understand how a juror is benefited by sitting in judgment of a member of his own group, rather than of another. All qualified citizens have a civic right, of course, to serve as jurors, but none has the right to serve as a juror in a particular case. Otherwise, we would have to permit stricken jurors to complain not only of peremptory challenges that supposedly deny [p425] them equal protection, but also of erroneously allowed challenges for cause.

http://straylight.law.cornell.edu/supct/html/historics/USSC_CR_0499_0400_ZD.html

Scalia's argument in Powers, like Ginsburg's argument in Miller, is actually rather complex and nuanced. However, both Justices seem very willing to sanction racial discrimination when it is in accordance with their views. Ginsburg is fine with considering race when it helps elect a Black Congressman. Scalia is fine with considering race when it helps a prosecutor put a criminal in jail.

Is it obvious now whom is out of the mainstream?

At least you are willing to admit Ginsburg is "willing to sanction racial discrimination" when it is in accordance with her views.

However, Scalia's argument is race neutral. He doesn't say only white prosecutors can strike blacks from juries, or that only Mexican defense attorneys can strike Koreans from juries. He basically argues that race should not necessarily be excluded from the voir dire process.

Those two opinions are very different, IMO. Most mainstream folks would agree.

[DjTj]

At least you are willing to admit Ginsburg is "willing to sanction racial discrimination" when it is in accordance with her views.

However, Scalia's argument is race neutral. He doesn't say only white prosecutors can strike blacks from juries, or that only Mexican defense attorneys can strike Koreans from juries. He basically argues that race should not necessarily be excluded from the voir dire process.

Those two opinions are very different, IMO. Most mainstream folks would agree.

Well, in my view neither Scalia nor Ginsburg are advocating racial "discrimination," but neither of them would agree with me, and both of them would agree with me. They are both certainly allowing the government to take race into account in two different contexts.

Like Scalia's opinion, Ginsburg's opinion is also race-neutral. I think you'd be pretty hard-pressed to find in a Ginsburg opinion where she says something to the effect of, "but if it were White people, this would be wrong." She's not that stupid; just like Scalia isn't that stupid. Anyhow, in her Miller dissent, Ginsburg simply says that if complying with a DOJ regulation, a state legislature's voting district is acceptable if race is not the sole purpose.

...now it's pretty convenient that Scalia's prosecutor is striking Blacks from the jury and that Ginsburg's DOJ is trying to encourage the election of Black Congressmen, but maybe those are just coincidences. Perhaps they are both being race neutral.

[Duncan]

Well, in my view neither Scalia nor Ginsburg are advocating racial "discrimination," but neither of them would agree with me, and both of them would agree with me. They are both certainly allowing the government to take race into account in two different contexts.

Like Scalia's opinion, Ginsburg's opinion is also race-neutral. I think you'd be pretty hard-pressed to find in a Ginsburg opinion where she says something to the effect of, "but if it were White people, this would be wrong." She's not that stupid; just like Scalia isn't that stupid. Anyhow, in her Miller dissent, Ginsburg simply says that if complying with a DOJ regulation, a state legislature's voting district is acceptable if race is not the sole purpose.

...now it's pretty convenient that Scalia's prosecutor is striking Blacks from the jury and that Ginsburg's DOJ is trying to encourage the election of Black Congressmen, but maybe those are just coincidences. Perhaps they are both being race neutral.

Ginsburg clearly would not support whites drawing districts that limit black representation. For you to say so is disingenuous.

However, your comments on Scalia are borderline slanderous and clearly slanted by your political hatred of the man.

The differences in the rulings are so clear it’s hard to argue otherwise.

[Duncan]

Anyhow, in her Miller dissent, Ginsburg simply says that if complying with a DOJ regulation, a state legislature's voting district is acceptable if race is not the sole purpose.

Race was the sole purpose. Btw, the district in question was ruled unconstitutional.

[DjTj]

Ginsburg clearly would not support whites drawing districts that limit black representation. For you to say so is disingenuous.

However, your comments on Scalia are borderline slanderous and clearly slanted by your political hatred of the man.

The differences in the ruling are so clear it’s hard to argue otherwise.

...I think you're becoming borderline slanderous towards me, but I'll ignore that...

I put a little smiley after my last statement because I was trying to take your argument to the point of absurdity, and I guess you ran with it.

My point is that in ruling the way he did in Powers (and in Batson, an earlier case on the same issue), Scalia found one instance where he was not willing to enforce his usual rigid standard of colorblindness. He decided that when we're talking about jury selection in a criminal case, it's okay for a prosecutor to take race into account. You (and Scalia) say this is okay because a prosecutor could also strike white jurors if he wanted.

However, under this principle, shouldn't it be okay for Georgia to draw a Congressional District to favor Blacks as long as it were allowed to draw one to favor Whites? (And actually, in fact, once you draw a district to favor Blacks, the other districts favor Whites because you've just taken all the Whites out - if you look at the actual results of recent Georgia elections, you will see that the number of Black Democrats has gone up, and the number of White Republicans has also gone up). Why doesn't colorblind mean that the government should be able to draw whatever districts it wants as long as it favors Whites and Blacks?

You have to admit that Scalia is being somewhat inconsistent here. In one context, he says "colorblind" means the government can discriminate against any race, while in another context, he says "colorblind" means the government CAN'T discriminate against any race? Which is it? Does colorblind mean never taking race into account or always taking race into account?