Patterico's Pontifications

1/6/2010

More on That Ninth Circuit Decision Granting Voting Rights to Felons in Washington State

Filed under: Court Decisions,Crime,General,Race — Patterico @ 10:54 pm

DRJ reported the basics here, quoting a story that said:

Attorneys for six Washington state prisoners, Circuit Court Judge A. Wallace Tashima wrote, “have demonstrated that police practices, searches, arrests, detention practices, and plea bargaining practices lead to a greater burden on minorities that cannot be explained in race-neutral ways.”

Joined by Judge Stephen Reinhardt in the majority opinion, Tashima found no “race neutral” explanation for the higher incarceration rates and reversed a U.S. District Court decision in favor of the felons.”

There’s a lot to say about this decision; probably more than can be said in a single blog post.

My first reaction is one that I have expressed many times before: how in the hell does Stephen Reinhardt manage to get onto the panel on every hot-button liberal issue the Ninth Circuit ever takes up?

To me, the biggest concern flowing from this decision is the precedent that federal courts can now make sweeping declarations about the discriminatory nature of the criminal justice system based on dubious studies by sociology professors. (More about that in the extended entry below.) The implications are potentially staggering and go far beyond felons’ right to vote. If federal courts can declare the entire system of criminal justice in a state (or the country!) to be racially discriminatory, you could see an invalidation of Three Strikes laws or any other recidivism statute. You could see a sweeping invalidation of laws prohibiting felons the right to possess firearms. And that could be just the tip of the iceberg.

Commenter carlitos points out another potentially disturbing impact of the decision: its potential effect on rural districts with big prisons. Given that the decision explicitly extends to currently incarcerated inmates, you’re potentially looking not just at a huge bump in the number of Democratic voters as a whole, but also very concentrated bumps in districts that otherwise would likely be reliably Republican.

What bothers me more than anything else is the way that the judges rely on dubious methodology that they don’t even seem to understand.

The rest of this post cites some of the source material and gets into a little more detail concerning that methodology. For those of you with less interest in the topic or shorter attention spans, I’m tucking this part in the extended entry.

If you read through the two studies cited in the Ninth Circuit’s opinion (one here, by a Professor Crutchfield, and another here, by a Professor Beckett), you will see that each study actually cites other studies that find no racial discrimination in various aspects of the system. For example, Crutchfield says:

Hewitt (1977) finds no significant racial differences in case outcomes after these and other factors that he considers to be legally relevant have been taken into account.

Crutchfield says that another research team

found some race differences in charging decisions but these differences were not statistically significant. One of their findings, where racial differences were statistically significant, was not in the ordinarily expected direction. They found that minorities, African Americans and Latinos, are significantly less likely to be convicted of delivery than whites.

Hmmm. Very interesting that Prof. Crutchfield thinks that the “ordinarily expected direction” is that borne out by his analysis. As a prosecutor who has tried drug sales cases in a heavily minority district, it doesn’t surprise me in the slightest that it’s tougher to convict a black or Latino defendant of drug sales, in jurisdictions with heavily minority jury pools. This is one reason that drug sentences in Compton, for example, are generally much lighter than they are in, say Pomona. It’s simply easier to convict the white guy in Pomona, so you don’t have to discount your case as much to address the potential impact of a negative verdict.

Despite the plethora of studies out there finding no racial profiling or discrimination at every level of the system, it just so happens that the good Professors — who were hired by the minority plaintiffs in this case — disagree with several of the previous studies they review. For example, Professor Crutchfield, with his background in ethnic studies, rejects the conclusions of studies that find no racial disparity with dismissive language like this:

This researcher’s experience with interviewing law enforcement personnel is that they routinely report that the behavior of officers can be justified as good policing rather than as racially problematic. It is little wonder that troopers and sergeants who participate in focus groups can “explain” why members of racial minorities are significantly more likely to be searched, even after legally relevant variables are taken into account.

Damn cops! They probably even think it was wrong to question Henry Louis Gates about being in his own home!

You can see how dangerous it is to allow sociology professors to have their reports given the force of law by liberal Circuit judges — especially when they don’t appear to understand what they’re reading. For example, Judge Tashima writes in his opinion:

Dr. Crutchfield’s report states that criminal justice practices disproportionately affect minorities beyond what can be explained by non-racial means. For example . . . [a] study of the Washington State Patrol shows that Native Americans were more than twice as likely to be searched as Whites; African Americans were more than 70 percent more likely to be searched than Whites; and Latinos were more than 50 percent more likely to be searched.

Yet this very study, Prof. Crutchfield explains, rejects the idea that its data shows racial profiling. Contrary to Judge Tashima’s conclusion that “criminal justice practices disproportionately affect minorities beyond what can be explained by non-racial means,” the authors of the study cited by Tashima wrote:

There are simply too many remaining problems in the databases and possible effects from variables not considered in these analyses to support a statement that the statistical disparities witnessed in these data are the result of discrimination in the use of law enforcement authority.

Indeed, a later study by the same researchers found no evidence of racial profiling at all.

But Prof. Crutchfield, with his dismissive attitude towards law enforcement, disagrees. And that’s good enough for Judge Tashima.

At the same time, I think it’s important to note the limitations of the decision. The case arises in the context of a motion for summary judgment, and the judges note that the attorneys for the State of Washington foolishly neglected to present any evidence on their own behalf (i.e., the plaintiffs had their own whore experts, so the state’s lawyers should have gotten their own whores). The judges explicitly chide the lawyers for this. The following passage can fairly be translated as follows: “You didn’t give us any evidence, so we had to go with what we had.” Indeed, you cannot read this passage without imagining the writer shrugging his shoulders in a “you forced me into this” posture:

Declining to “offer any evidence opposing summary judgment . . . is not the recommended approach when the opposing party feels that the movant has not met his burden. . . . [I]n most cases the better response to a summary-judgment motion is not simply to test the sufficiency of the movant’s case by challenging the legal sufficiency of the evidence presented on the motion, but to introduce contradictory evidence to establish that a question of material fact remains in dispute.” 10A Charles Alan Wright et al., Federal Practice and Procedure Civil 3d § 2727, at 516 (1998). Nevertheless, that is the approach the Defendants have pursued, and we are charged with deciding this case in the procedural posture and on the record evidence as it is brought before us.

Simply put, the State of Washington is suffering in part because it had some really sucky lawyers.

Also, the fact that the case arises in the context of a Voting Rights Act challenge, and not an Equal Protection challenge. The holding does not directly translate to the horrors you might imagine.

Yet.

Yet this is potentially the first step down a long road leading somewhere that we really don’t want to go.

Dafydd ab Hugh’s post on the decision sounds the right notes, I think. However, Dafydd has not read the decision or the studies upon which it is based, and so he has failed to grapple with the claims of the sociology professors who claim to have looked at the very variables Dafydd accuses the court of ignoring.

I would like to encourage Dafydd and any other interested readers to poke through the links I have provided. There are nuggets a plenty in the various studies and other links.

Bottom line: yes, you are right to be concerned by this decision. You should be very concerned indeed.

And I hope it is reversed en banc or by the Supreme Court. I think it rather likely, in fact.

Time will tell.

125 Responses to “More on That Ninth Circuit Decision Granting Voting Rights to Felons in Washington State”

  1. If have also wondered how Reinhardt and Pregerson seem to be on all of the immigration cases where the alien wins. Is it possible that the Ninth Circuit docketing clerks are steering these cases to the more liberal judges?

    Kevin Bove (dc27c1)

  2. well, that certainly gives them an argument to convince regular folks to swallow gun control: “if we don’t get rid of them now, the criminals will be able to buy them too!”

    the 9th circus is a joke.

    redc1c4 (fb8750)

  3. This is a parody, right? A hoax? This wouldn’t even make the Onion, it’s too weird.

    Kevin Murphy (3c3db0)

  4. He’s 78. Isn’t he supposed to be on senior status with a reduced workload? Which makes his ubiquitousness all the more amazing.

    Kevin Murphy (3c3db0)

  5. This really is grounds for impeachment. I know that the tradition is to not do that for political reasons, but this is SOOOOOO out there that he’s either insane or intent on seeing just how far he can abuse power before they stop him.

    Impeaching Reinhardt might be the thing to restore some semblance of sanity to the 9th Circuit.

    Kevin Murphy (3c3db0)

  6. Kevins, I think it’s obvious at this point that Reinhardt is able to get on special cases that are political.

    I don’t know that he’s working more than other judges, or even as often, but he’s always on these sorts of cases.

    I recall learning that, in some court, there was a set order that cases would be assigned. so if you wanted, you could bring a lot of cases, with one special one, and repeatedly file them until you know the next one is going to the right judge. It could be some trick like this, or it could simply be that this man is able to rig the system.

    either way, this alone is deeply unjudicial conduct.

    Dustin (b54cdc)

  7. About impeachment, I also suggested that in the prior thread. If the GOP made this move, it would have a very good effect. They might be able to pull this off in the house, forcing the Senators to take a side.

    This man has never permitted a death sentence. This man has come to ridiculous conclusions several times. Let democrats and RINOs in the Senate explain why this is OK. I think it would have a real impact on the nomination process. Whatever the law is, that should bind Reinhardt. But Reinhardt wants the law to be bound to his politics.

    Dustin (b54cdc)

  8. Patterico – I’m a Californian, not a Washingtonian, so my grasp on Washington politics is shakey, but it almost seems to me that the Washington AG’s office chose to throw the case.

    aphrael (9e8ccd)

  9. Carlitos is right about the danger to small towns with large prisons. It seems to me that the same rules that prohibit college towns from requiring students to register where they were domiciled before they went to college would also prohibit these towns from requiring prisoners to register where they were domiciled before being incarcerated.

    I hope I’m wrong on this.

    aphrael (9e8ccd)

  10. Jesus, Aphrael. I hope you’re wrong too, but that’s a pretty good point.

    I almost hope this comes to pass, and rapists and murderers start voting, just so we can realize how ridiculous this entire project has become. At some point, we have to accept imperfection. Throwing out the basic concept of felon not voting over the fact that our justice system isn’t perfect is simply unreasonable.

    Whatever laws and rulings get us there need to be altered.

    Dustin (b54cdc)

  11. the attorneys for the State of Washington foolishly neglected to present any evidence on their own behalf [...] Simply put, the State of Washington is suffering in part because it had some really sucky lawyers.

    Or this was deliberate. The AG was probably in cahoots with the plaintiffs. It’s an easy way to get more D votes without having to get it through the legislature.

    Milhouse (ea66e3)

  12. It doesn’t seem like much of a stretch that felons could run from office while in prison. So, a tiny county with a prison might find their sheriff is behind bars.

    Kevin Murphy (3c3db0)

  13. I think this is tantamount to overturning convictions. Why would the standard of evidence be preponderance? Shouldn’t the judges have realized that having a “good reason” on one side, and no case presented by the other, is not enough to trigger removing the penalties in law for every felon?

    Apparently this got to the point where the AG had an obligation to his citizens to respond, but it’s still a crazy result.

    McKenna (this AG) is appealing the case. I understand that Sotomayor is said (by detractors, relying on a dissent in a NY case) to support voting rights for all felons.

    A lot of criminals have very strong political views. I wouldn’t be surprised if they vote in very high numbers.

    Dustin (b54cdc)

  14. From the NY Times, which probably didn’t make this part up:

    Felon voters were central to a Republican court challenge to the results of Washington state’s 2004 gubernatorial race. The challenge focused heavily on votes cast by felons who hadn’t had their rights restored. Gov. Chris Gregoire beat Republican Dino Rossi by 133 votes after two recounts and the unsuccessful court challenge.

    The case is Farrakhan v. Gregoire. [Emphasis mine]

    Kevin Murphy (3c3db0)

  15. Kevin,

    If you want to get depressed, visit Stefan Sharkansky’s blog Sound Politics sometime and look through the archives from that era. He fought a quixotic battle to question the results of that election and got stonewalled at every turn.

    Patterico (c218bd)

  16. Regarding Reinhardt, is he really on more important cases or does it just seem that way because he is more likely make a loopy decision and get the case noticed?

    James B. Shearer (172cfb)

  17. “…the statistical disparities witnessed in these data are the result of discrimination in the use of law enforcement authority.”

    For some reason, and only a woman hating trog would even mention this of course!!, I just can’t see them looking for gender discrimination in the blatant statistical disparities in male/female arrest, conviction and sentencing records.

    Mike Jackson (fbe03b)

  18. So, the Ninth Circus Clown Court of Hyenas determined — apparently using the sound judgment of “this doesn’t smell right” — that the police are profiling PEOPLE THAT ARE SUBSEQUENTLY CONVICTED OF FELONIES!!! Well, How the fuck . . . DARE they arrest the guilty?

    Icy Texan (a73096)

  19. 13/Dustin: Nah. Felons are not good at doing things, like registering.

    As to the general issues, it seems like there’s a simple solution. Since the criminal justice system is racist, consequences from felony convictions cannot occur, else the equal protection required by law fails.

    Thus, this whole kerfluffle instigated by troublemakers like our host is irrelevant; voting rights for felons should be a non-issue, since there should be no felons unless and until Professor Crutchfield says that the system isn’t racist.

    Problem solved!

    Well, for a little while. After a few years of not having any felonies, the failure to enforce violent crime laws will lead to the deaths of a disproportianate number of minorities. We can then conclude that the Ninth issued a racist decision, and disband them.

    –JRM

    JRM (355c21)

  20. I think that this is a quite deliberate attempt to “save or create” more reliably Democratic votes. I think that the Left is worried about 2010 and 2012.

    Folks who don’t like this new politics had better not sit out any elections from now on. We know what the Left does when the vote is close.

    Eric Blair (ddbceb)

  21. Here are some very interesting quotes on this issue, including from now-Justice Sotomayor, and also Judge Alex Kozinski.

    Andrew (7ad1cf)

  22. There are plenty of prisons here in Illinois, mostly in rural or less populated areas. I can just see all of the convicted felons sticking us with liberals forever in the future.

    Isn’t anything a state’s right anymore?

    Rochf (ae9c58)

  23. JRM – I addressed this in the other thread.

    I don’t see a leap from this to the criminal system because proving discrimination under the fourteenth amendment typically requires that you prove discriminatory intent, but the voting rights act only requires discriminatory effect.

    It’s much, much, much harder to demonstrate intent.

    aphrael (73ebe9)

  24. “There are plenty of prisons here in Illinois, mostly in rural or less populated areas. I can just see all of the convicted felons sticking us with liberals forever in the future.”

    conveniently for less populated rural areas, your local prison population counts when your district is getting apportioned. As full people, not 3/5ths.

    imdw (3c1553)

  25. As full people, not 3/5ths.
    Comment by imdw — 1/7/2010 @ 10:21 am

    You miss the days when Dems were fighting to not count some people as human at all and had to settle for 3/5ths?

    Stashiu3 (44da70)

  26. I think I may need a slide show for this one…..

    Headlines: Felons should get to vote!

    Discussion; nothing but racism

    This is but one more glaring example of a legal industry totally out of control and without the ability or drive to regulate itself!

    ACORN could not even come up with something this sad.

    ****************

    Pass out the paper ballots, collect them, send to incinerator. Thank you felons for being part of the solution today! Your voice has been heard!

    TC (0b9ca4)

  27. IMDW – in some ways that’s a good point: counting local prisoners when reapportioning but not allowing them to vote causes areas with large prison populations to be more politically powerful than is actually warranted.

    But allowing incarcerated felons to vote in the localities where they are incarcerated would result, in many instances, with the felons running the city council or, even worse, electing the county sheriff. Among other things, this would allow (say) prison gangs to elect corrupt guards to positions of political power, and it would deny the local population effective control over their local governments.

    One could argue that the local population decided to accept prisons which had more people than the localities themselves, and that they chose to pay the costs of that as well as reap the benefits – but since they didn’t know, when doing so, that this cost was involved, the argument doesn’t work; the local communities never consented to giving up their political power in that way.

    So: yeah, right now the rules tend to give rural locales with large prisons more political power on the state level than is actually warranted, and that’s a problem (albeit a relatively small one, and one which really isn’t easily fixable); but this decision risks depriving certain local communities of control over their local government without them ever having consented to it — which is a much bigger problem.

    aphrael (e0cdc9)

  28. It’s much, much, much harder to demonstrate intent.
    Comment by aphrael — 1/7/2010 @ 10:07 am

    If the judge is predisposed to infer intent, demonstration is irrelevant.

    Impeaching Reidhardt:
    Would that mean, with the loss of his Federal paycheck, that Ramona would have to go out and get a real job?

    AD - RtR/OS! (88245d)

  29. If the judge is predisposed to infer intent, demonstration is irrelevant.

    Equally, if a judge is predisposed to infer the absence of intent, demonstration is irrelevant.

    aphrael (e0cdc9)

  30. Not so breaking news…

    “Wash. AG will appeal ruling allowing inmates to vote

    (Posted: Jan 6, 2010 04:38 PM PST, Updated: Jan 6, 2010 04:44 PM PST)

    YAKIMA–The 37,000 felons in Washington state can now vote in elections, but for how long?

    Washington Attorney General Rob McKenna, along with Gov. Christine Gregoire and Secretary of State Sam Reed, will ask the United States Supreme Court to review Tuesday’s decision in the 9th Circuit Court of Appeals giving convicts–even those behind bars–the right to vote…”

    AD - RtR/OS! (88245d)

  31. ” You miss the days when Dems were fighting to not count some people as human at all and had to settle for 3/5ths?”

    There were “dems” in 1789? Who were they?

    imdw (c7d9e2)

  32. They were the “anti-Federalists” of the South;
    you know, those Jeffersonian Democrats.

    AD - RtR/OS! (88245d)

  33. Oddly enough, the constituency of the Jeffersonian Democrats – rural southerners and westerners – more closely matches the constituency of the modern Republicans; and the constituency of the Whigs – urban traders and professionals – more closely matches the constituency of the modern Democrats.

    aphrael (e0cdc9)

  34. Well, the Federalists begat the Whigs, who begat the GOP of Lincoln.
    The Democrat-Republicans of Jefferson begat the Democratic Party of Jackson, which in the later half of the 20th-Century walked away from its’ populist, rural roots, and became the party of the Elites, as the GOP slowly changed from its’ “country-clubism” to a party of Main Street, and of Jacksonian National Security.
    Don’t forget, that the major Civil-Rights legislation in the later 20th-Century would never have passed without GOP support. You might not like the aftermath of the political reallignment that followed those events, but you cannot deny – though many do – who was on what side during the fight.
    And, the most severe CR problems today seem to be found in major urban areas that are predominantly controlled by the Democrat Party, as they have been since WW-2.
    Liberalism: The face of the modern bigot!

    AD - RtR/OS! (88245d)

  35. …and, I contest as to whether rural Southerners and Westerners are the legatees of Jefferson’s Democrat-Republican Party; Jefferson represented the Planter Class and the Southern Elite.
    Rural Southerners and Westerners more correctly reflect the thinking of Jackson – see James Webb’s book on the Scots-Irish.

    AD - RtR/OS! (88245d)

  36. Reinhardt and his fellow travelers are laying the groundwork for a very serious counter-reaction. He keeps exercising illegitimate authority that threatens the established (and prefectly legitimate) social order and he’s going to end up with (if he’s lucky) a peaceful revolution in the way we as citizens appoint judges.

    California’s done it before, when Rose Bird and Joe Grodin’s contempt for liberty and freedom (as exercised by us peasants) got out of hand. We impeached them.

    Reinhardt is headed the same way, only the quake he touches off will be less predictable. He shold ask himself, how would he like a Constitutional Amendment revoking lifetime tenure? Or popular election of appellate judges?

    On the scale of potential reactions, that’d be mild. If he and his totalitarian friends keep treating the citizens of this country as if they were third world peasants, and he’s gonna get treated like a third world dictator himself.

    Luke (d0521b)

  37. Congress, as the progenitor of all “lessor courts”, can change the rules for Judicial tenure for those courts, and/or can eliminate them, as it wishes. Only the tenure of SCOTUS is constitutionally protected.

    AD - RtR/OS! (88245d)

  38. Not true.

    “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”

    Congress can abolish the courts but cannot change the rules for judicial tenure.

    aphrael (e0cdc9)

  39. Well then, they should abolish them, and start over; the continuing payments would be their pensions, and we would be the better for being rid of them.
    No Court – No Court Justice.
    Just another pair of lips suckling the Federal Teat.
    And, Congress has in the past disemboweled entire court structures.

    AD - RtR/OS! (88245d)

  40. I too worry about rural areas that have a large prison. Angola prison containing about 5 thousand inmates is in rural West Feliciana Parish, Louisiana. Will these inmates be allowed to vote for Sheriff, councilman, etc…?

    Roux (09a786)

  41. The courts are driving our system of governance into total incoherence. If it’s going to be declared unlawfully discriminatory to remove full citizenship rights from criminals, if that’s really where the Democrats are going, then we’re headed into mob-rule.

    MTF (a20706)

  42. In fact it was the Yankees who opposed counting slaves as “whole persons” at the Constitutional Convention.

    The slave holding states wanted every slave counted as a person in assigning approportionment in Congress. That way importing or breeding slaves increased the political power of the slave states even though the slaves were not allowed to vote or, in most cases, own property.

    And today’s Democratic Party can be traced back at least notionally back to Andrew Jackson. the Republicans can only be traced back to Abe Lincoln and 1856.

    Joseph Somsel (e5cbf5)

  43. The easiest way to counter the 9th Circuit’s power is for Congress to abolish it or severely circumscribe its territory or scope. Some of the judges could be transferred to balance workloadsand the others could just continue their salaries as redundant or retire.

    The Federalist Papers address the issue in some detail.

    Joseph Somsel (e5cbf5)

  44. So, based on this logic, MINORITIES vote disproportionally for Democrats, we need to nullify their vote.

    Barnone (a3d359)

  45. Comment by Joseph Somsel

    Joseph, the reason for the decrease “value” in the slave vote, was to increase the representation in the northern states. The begining of the liberals GerryMandering.

    And while you all love to credit Lincoln with Freeing the Slaves, read the Emanicpation Proclaimation more carefully. Lincoln only freed slaves of his political opponents. He specifically exempted entire States and counties.

    Barnone (a3d359)

  46. “So, based on this logic, MINORITIES vote disproportionally for Democrats, we need to nullify their vote.”

    “logic” is your forte, uh?

    imdw (a508a9)

  47. Barnone, they were not “political opponents”, they were states in a state of armed rebellion. Of a kind with your incoherent statement about nullify minority votes.

    Sheesh.

    SPQR (26be8b)

  48. barnone

    > And while you all love to credit Lincoln with Freeing the Slaves, read the Emanicpation Proclaimation more carefully. Lincoln only freed slaves of his political opponents. He specifically exempted entire States and counties.

    First, the line of delineation was not politics but open rebellion, unlawful and illigitimate rebellion. But something tells me you are the kind of guy who likes to call the civil war “the war of northern aggression.”

    Second, yes, Lincoln freed the slaves, by pushing through the 13th Amendment. Sheesh.

    A.W. (e7d72e)

  49. “Joseph, the reason for the decrease “value” in the slave vote, was to increase the representation in the northern states. The begining of the liberals GerryMandering.”

    Slaves didn’t vote. There wasn’t a value to the slave vote. Counting slaves increased the power of the voters in slave states disproportionately to voters in free states.

    I don’t think any of them considered letting slaves vote.

    imdw (f8211e)

  50. imdw

    well, your 3/5 argument only demonstrates how absurd the court’s argument is. before the 15th amendment, the founders recognized that the 13th amendment created a problem. with slavery ended, black people were to be counted as 5/5 of people, but in many areas they still wouldn’t be able to vote. so the net effect is that the south, which had only recently been in rebellion, would see its white population have its political power increased. So they ratified the 14th amendment, including section 2, which read as follows:

    > Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

    So the upshot is that if you denied men over the age of 21 the right to vote, then you couldn’t count them in representation. But there was a massive exception (among others): a state would not be penalized for excluding people from the right to vote who had been convicted of a crime.

    So in other words, the constitution specifically endorses what is supposed to be illegal today. now of course the 15th Amendment was ratified after the 14th, but they clearly had no intention of making it unconstitutional to exclude felons from the vote. So Congress tries to ban what the constitution specifically allows. I would say that to the extent that the voting rights act demand that outcome, it becomes unconstitutional as applied.

    No, this is naked politicking on the part of the 9th circuit. they want to do what they can to hold back the coming republican avalanche.

    A.W. (b1db52)

  51. I still don’t understand how this is different from saying requiring voters to be alive and registered is racist, and therefore we can’t have those requirements.

    In my experience, blacks are smart, educated, health conscious people. but holding things up to the standard of the court here, good reason, where blacks are incarcerated more often, let’s look at similar race results. Blacks die younger than whites. Often because they live in worse places and have worse diet. Also, they often attend inner city democrat-style schools, and are less likely to register to vote, or even know how to, or be interested in elections, as a result.

    It’s race neutral in intent to say that voters must be alive or registered, but of course, the result is that the underclass is less likely to vote.

    All this shows is that the reasoning that

    the Voting Right Act +
    blacks being convicted more often in general = all felons should be allowed to vote

    Is really silly. This is clearly not the sort of racial discrimination the law has in mind. If someone was wrongly convicted, fix it. If there’s a systemic problem (hardly proven), then fix it. Don’t do this.

    Dustin (b54cdc)

  52. Would you oppose a government that outlawed fuel oil today? Slaves were the tractors of the 1800′s.

    The States that “Rebelled”, merely wanted to end their agreement to be part of a Union of Sovereign States affiliated for Common Defense. When some of these Sovereign States decided to change the rules. The 13th ammendment was not passed until the Northern States replaced the governments of the Southern states by force of arms.

    So, if Red States today, rose up and conquered the Blue States, replaced their Governors and Legislature by force of arms, we could pass a Marriage ammendment, a flag ammendment, an anti-abortion ammendment and it would be OK with you?

    The world was phasing out Slavery and so was the South. But the purpose of the Emancipation Proclaimation was to harm his political enemies financially.

    Again, Slavery was legal at the time, as is Fuel Oil today. The north uses a lot more Fuel Oil than the south. What would happent to the North today, if the President proclaimed Fuel Oil illegal, except in the South? (and BTW, Obama and the EPA may just do that.)

    Barnone (a3d359)

  53. Dustin: I think you’re misstating the claim.

    It’s not “blacks being convicted more often in general”, it’s “blacks being arrested and convicted disproportionately relative to the number of crimes they commit.”

    Patterico has some good points about the quality of the data used to make that assertion. But the questionable nature of the data does not mean that the court made the claim you said it did. :)

    aphrael (e0cdc9)

  54. Barnone, is there a reason you are polluting this thread with your incoherent nonsense?

    SPQR (26be8b)

  55. So in other words, the constitution specifically endorses what is supposed to be illegal today

    Right.

    And this decision was not a ruling about the Constitution.

    It was a ruling about the Voting Rights Act.

    The court is saying, among other things, that the Voting Rights Act prohibits things which the Constitution doesn’t.

    aphrael (e0cdc9)

  56. A.W. makes an excellent point – this decision violates the 14th Amendment.

    Of course, I hardly see that being argued during the appeals. It is like the 10th Amendment – no longer politically correct to mention in polite company.

    Joseph Somsel (e5cbf5)

  57. interesting thing, btw, about that section of the 14th A. it has never been enforced but i suspect by its operation that it actually had a feminist purpose (contrary to the complaint that it is the first time the word “male” appears in the constitution). its a little complicated, but simplified example might show how it works. Take South Carolina. In real life, 2/3 of the voters and 2/3 of the population was black. Let’s imagine that is 20K white men, and 40K black men. Let’s further suppose that there are just as many women as men (20K and 40K respectively, although statistically women usually outnumber men).

    Now imagine that they passed a law that said that all men and all white women could vote, but no black women. Well, do the numbers and see. you now transform the white voting block from a minority to parity–white women and men add up to 40K, and black men add up to the same.

    Now try a similar experiment with Mississippi, where the racial breakdown was 50-50. if we imagine 40K whites, and 40K blacks, broken down into 20K men and 20K women, then the same law would change the situation from parity to a 2/3 majority for whites.

    Now all of that depends, therefore on the founders anticipating that the racists would try to use this very obvious loophole created by the word “male.” given that we are talking about apportionment i think it is hard to believe that congress didn’t think about this.

    So does this mean that the founders (in the Civil War era) intended to throw black people under the bus in order to help women? Not so fast. The founders might have believed that white women would make common cause with black men enough to then open the vote to black women as well, and once that happened there would be no going back. And frankly the founders of that era very frequently employed racism against itself in the cause of equality.

    But on the other hand, i have never seen any founder say they recognized its effect or intended that result. so i guess you could call it an interesting theory that fits alot of facts. and with the passage of the 15th A, my loophole was closed up, so we might never know.

    A.W. (e7d72e)

  58. 25

    As full people, not 3/5ths.
    Comment by imdw — 1/7/2010 @ 10:21 am

    You miss the days when Dems were fighting to not count some people as human at all and had to settle for 3/5ths?

    Comment by Stashiu3 — 1/7/2010 @ 10:26 am

    Actually, you have it backwards. The slave states were demanding that slaves count as a full person for the purpose of the census (and apportioning the House of Representatives) even though they could not vote. The Northern (free) states wanted slaves not to be counted because they were not citizens. The 3/5th was a compromise which gave the slave states more power but not as much as they wanted.

    Interestingly enough, the same argument occurred earlier under the articles of Confederation, but the North wanted each slave to count as on and the South wanted three fifths. The reason was that the number was to be used to calculate how much taxes each state had to pay to the “central government”.

    Wikipedia says the following

    The Three-Fifths compromise was a compromise between Southern and Northern states reached during the Philadelphia Convention of 1787 in which three-fifths of the population of slaves would be counted for enumeration purposes regarding both the distribution of taxes and the apportionment of the members of the United States House of Representatives. It was proposed by delegates James Wilson and Roger Sherman.

    Delegates opposed to slavery generally wished to count only the free inhabitants of each state. Delegates supportive of slavery, on the other hand, generally wanted to count slaves in their actual numbers. Since slaves could not vote, slaveholders would thus have the benefit of increased representation in the House and the Electoral College; taxation was only a secondary issue.[citation needed] The final compromise of counting “all other persons” as only three-fifths of their actual numbers reduced the power of the slave states relative to the original southern proposals, but increased it over the northern position.

    Sabba Hillel (153338)

  59. “So in other words, the constitution specifically endorses what is supposed to be illegal today. now of course the 15th Amendment was ratified after the 14th, but they clearly had no intention of making it unconstitutional to exclude felons from the vote. So Congress tries to ban what the constitution specifically allows.”

    The constitution doesn’t mandate this outcome, it merely allows it. Congress can go beyond this, and create even more equal protection than the constitution creates.

    imdw (e870b9)

  60. Barnone, the confederacy didn’t give a crap about state’s rights of its own members.

    And slavery is torture, rape, and murder + a lot of hardship tacked on. It’s wrong even if slaves were used as equipment.

    You’re right that some aspects of the war are not so black and white, and you’re also right that might doesn’t mean right. But the civil war was about slavery, ultimately, America’s birth defect. It would have been nice if we could have ended it with less killing. I blame the south for that.

    Dustin (b54cdc)

  61. Dustin: I think you’re misstating the claim.

    It’s not “blacks being convicted more often in general”, it’s “blacks being arrested and convicted disproportionately relative to the number of crimes they commit.”

    Comment by aphrael

    WAIIIT, are you saying the appeals court is saying that the convictions, a fact ruling by juries, is wrong, somehow? The burden for such a finding is high. Debunking this ruling just got a lot easier.

    Juries decided these people were guilty. Of course the data is bunk, but that’s irrelevant. The numbers of blacks committing crimes is determined by the jury. This court is canceling those jury verdicts in a backhanded way.

    I get the distinction between the two problems above.

    But that’s why I carefully noted that blacks die more often than whites, relative to whatever, thanks to some unfairness somewhere (or at least this argument is easier to make than the conviction nonsense). I did the same with registration. Blacks register to vote less than whites (in my hypo) thanks to unfairness in the system.

    so when you point out this distinction, it really seems to me like you’re not refuting my argument at all. If there is unfairness, fix that. Don’t change the underlying democracy structure.

    There’s unfairness in our health system, our schools, and many other things… these trickle into disproportions in voting, I am sure, somewhere. But if the laws are race neutral, and realities are not, fix the realities. Deal with police misconduct some way. Overturn these mythical faulty convictions (of course, they can’t… they probably don’t even exist).

    If you’re going to say that any unfairness anywhere that impacts who can vote is a voting rights violation, at this arcane level, you’re clearly not observing what this law is about. Of course felons shouldn’t vote. If a jury of peers says someone is a felon, it doesn’t matter if Reinhardt doesn’t like it unless he has a really damn good reason.

    this generalization is not just a sloppy argument, it’s a crime against the republic.

    Dustin (b54cdc)

  62. are you saying the appeals court is saying that the convictions, a fact ruling by juries, is wrong, somehow?

    sorta.

    they didn’t say that outright. but they did say that the washington state justice system operates in a fashion which discriminates based on race.

    that is, they can’t point to any specific conviction which was the result of discriminatory intent, but they can point to the overall system and say it has a racist effect.

    so when you point out this distinction, it really seems to me like you’re not refuting my argument at all

    That makes sense, since i’m not trying to refute your argument; i’m pointing out that your argument is refuting some argument other than the one the court is making. That is to say: I think you’ve knocked down a strawman.

    If there is unfairness, fix that. Don’t change the underlying democracy structure.

    Oh, sure. Absolutely.

    But here’s the thing: Congress passed a law prohibiting states from denying the vote based on discriminatory processes.

    If it is in fact true that Washington’s criminal justice system is a discriminatory process, the law compels Washington to not deny the vote based upon the criminal justice system.

    I think the decision was bad because I think it elided over the precedents that say that mere statistical disparity isn’t enough to demonstrate discriminatory effect, and because I think that proceeding to summary judgment for the plaintiff was inappropriate in this case, but I have a hard time complaining about the premise of the argument: under federal law as currently written, if the criminal justice system has a discriminatory effect, it can’t be used as the basis for denying votes. The only way to get around that is to say that the current instance of the Voting Rights Act is an unconstitutional act (that by purporting to regulate state elections in a way that goes beyond what is required by the fourteenth amendment, Congress has exceeded its powers) – and even then, the regulations would stand for federal elections.

    this generalization is not just a sloppy argument, it’s a crime against the republic.

    I think it was hyper literalism. There’s a kind of philosophical legalism which takes statements, interprets them literally without context, and pushes them to their logical extremes; this decision appears to me to be something of that nature.

    The thing which I find most amusing about this is that the injection of context that isn’t actually in the written law itself is the sort of thing which, in other situations, many conservatives decry as judicial activism. Yet here the absence of such context is also being decried.

    aphrael (e0cdc9)

  63. Also, I would note that the gist of the complaint does not appear to be that blacks are being convicted of crimes they didn’t commit, it’s that white people aren’t being arrested or convicted for crimes they do commit, while black people are, and that’s discriminatory.

    This is a gross oversimplification on my part, of course. But it’s consistent with the main thrust of the argument.

    aphrael (e0cdc9)

  64. Maybe Washington State purposefully threw the case since it is run by Democrats who will benefit from having rapists vote.

    This is a gift for GOP but they are probably too stupid to realize it.

    Running against unelected judges is easy and important. Wake up GOP and get a clue.

    We need to drive federal judges favorability ratings with voters into the toilet.

    Term limits for federal judges.

    Saly Quinne (d48c84)

  65. Saly, I thought that the Washington AG had deliberately thrown the case, but then he went and appealed, making it seem less likely.

    Term limits for federal judges aren’t goign to happen unless you can convince 2/3 of both houses of Congress and then convince the legislatures of 2/3 of the states. Moreover, it would simply replace this problem with a different one: judges whose decisions are influenced by the need to make themselves appealing to potential future employers.

    aphrael (e0cdc9)

  66. “Also, I would note that the gist of the complaint does not appear to be that blacks are being convicted of crimes they didn’t commit, it’s that white people aren’t being arrested or convicted for crimes they do commit, while black people are, and that’s discriminatory.”

    The opinion notes disparity in searches, arrests and charging.

    “WAIIIT, are you saying the appeals court is saying that the convictions, a fact ruling by juries, is wrong, somehow? The burden for such a finding is high. Debunking this ruling just got a lot easier.”

    Even if a juries were acting completely impartially and perfectly, the disparateness in what leads up to the juries will result in disparate results.

    imdw (490521)

  67. “…the legislatures of 2/3 of the states…”

    Three-Fourths!

    AD - RtR/OS! (88245d)

  68. So, if the police proceedures are what are at fault, how do we mandate uniform proceedures throughout the land, without encroaching on state sovereigny, and local independence; and, most importantly, without invoking the un-funded mandate principle upheld in Prince?

    Of course, all this is academic anyway since this is going to be reversed faster than a …
    I can just imagine the eye-rolls that are happening at the Supreme Court as we discuss this.
    They’ll need extra clerks to keep the Justices from collapsing from dizzyness.

    AD - RtR/OS! (88245d)

  69. “So, if the police proceedures are what are at fault, how do we mandate uniform proceedures throughout the land, without encroaching on state sovereigny, and local independence; and, most importantly, without invoking the un-funded mandate principle upheld in Prince?”

    This doesn’t mandate these procedures. It just says that you can’t have this is a basis for disqualifying voters.

    imdw (603c39)

  70. Faulty reasoning….Faulty decision.
    Typical 9th-Circus BS!

    BTW, how do you file a complaint against a sitting Judge of the Circuit Court?
    And, can you file that complaint with the Chief Justice?

    AD - RtR/OS! (88245d)

  71. [...] Patterico has posted on this topic as well — the three-judge panel of the Ninth Circus that just ruled that felons must be allowed to vote, even from their prison cells. He posts from a lawyer’s, and especially a prosecutor’s point of view; and in his post, he dressed me down a bit for my previous post here… or so it seemed to me. Patterico writes: Dafydd ab Hugh’s post on the decision sounds the right notes, I think. However, Dafydd has not read the decision or the studies upon which it is based, and so he has failed to grapple with the claims of the sociology professors who claim to have looked at the very variables Dafydd accuses the court of ignoring. [...]

    The Greenroom » Forum Archive » Voting Rights for Felons: Presto Retro! (e2f069)

  72. He should ask himself, how would he like a Constitutional Amendment revoking lifetime tenure? Or popular election of appellate judges?

    Why should he care? The relevant high court will likely strike down the vote authorizing the amendment. Don’t forget the Massachusetts (?) precedent, where the high court struck down an anti-gay-marriage amendment, arrogating to themselves the power to decide how the state constitution can be amended.

    Bob Smith (a8b37c)

  73. Congress can abolish the courts but cannot change the rules for judicial tenure.

    Who gets to decide what “good behavior” is, if not Congress? Ergo, judges can be removed any time Congress wants.

    Bob Smith (a8b37c)

  74. Bob – right. Congress can remove an individual judge via impeachment, but it can’t set a blanket rule saying that judges terms of office expire after ten years.

    aphrael (9e8ccd)

  75. No, but 2/3rds of the House and Senate, concurred by 3/4ths of the Legislatures of the several States, can!

    AD - RtR/OS! (88245d)

  76. it can’t set a blanket rule saying that judges terms of office expire after ten years

    Why not? The Article 3 Section 1 places no limits on the terms under which Congress may “ordain and establish” a Court. If Congress wants to establish a Court that automatically expires in 10 years I see no constitutional bar. Moreover, since Congress can establish inferior Courts it follows it can disestablish them. I don’t think the Constitution contemplates a judiciary that’s completely unaccountable to Congress.

    Bob Smith (a8b37c)

  77. Bob, aphrael’s point is that short of the impeachment process, Congress can’t remove a Judge from the Federal Teat.
    They can disestablish his court, fire all of his staff, lock the door, and throw away the key; they just have to continue sending him a check each month.
    It probably is way past time that they chose a target for such discipline, and made the point that the Judicial Branch is not beyond the reach of Congressional ire –
    which, by extension, is the People’s ire.

    AD - RtR/OS! (88245d)

  78. Voting Rights for Felons: Presto Retro!…

    Patterico has posted on this topic as well — the three-judge panel of the Ninth Circus that just ruled that felons must be allowed to vote, even from their prison cells. He posts from a lawyer’s, and especially a prosecutor’s……

    Big Lizards (413f0a)

  79. [...] Comments Patterico has posted on this topic as well — the three-judge panel of the Ninth Circus that just ruled that felons [...]

    Voting Rights for Felons: Presto Retro! | America Watches Obama (4ab9a2)

  80. [...] from a larger analysis that you should read in its entirety: To me, the biggest concern flowing from this decision is the [...]

    Shot in the Dark » Blog Archive » When There Just Aren’t Enough Dead People Voting For You… (603906)

  81. Imdw

    > The constitution doesn’t mandate this outcome, it merely allows it.

    I am a little hazy on what you are referring to as “this outcome,” but I can say this. Under basic principles of statutory construction, the 14th A allowed the states to keep felons off the rolls for voters. The framers were very consistent about this, that regardless of all other concerns, there was still a lot of authority left in the states in how to exercise criminal justice. For instance, not only does the 14th A specifically allow for the states to exclude felons from the vote, but the 13th A specifically allows the states to sentence a convict to slavery. So even without that 14th A language, the fact is a state can legally enslave a criminal, makes the notion that this slave still nonetheless has the right to vote a little laughable.

    As for the notion that congress can go beyond what the constitution says, well, as an original matter you have a more valid argument. I believe that the word “appropriate” in the enforcement clauses of the 13th, 14th and 15th amendments includes the ability to define the right. In essence it was an attempt to take all of the precedents under McCulloch v. Md, and its progeny, including the case (whose name I forgot) that upheld the Fugitive Slave Act (FSA) of 1850. Under the FSA congress took a clause that merely prevented states from freeing slaves and read into that a power on the part of congress to retrieve slaves, including the right to conscript ordinary citizens into the effort (with no exceptions for contentious objectors), and to stomp all over the due process rights of accused slaves. And it really was an outrage upon due process: a free man could be declared a slave based on nothing more than an affidavit, in a proceeding in which the accused slave had no right to appear or speak, and where the judge was paid by the decision–$10 if he declared the accused to be a slave, $5 if he declared him to be free. All of this was upheld by the Supreme Court in rulings that granted to the federal government sweeping powers. So much like the Germans, storming the Maginot line, turned the cannons around on the French they were built to defend, the radical republicans wanted to turn these doctrine around and use them to advance a good cause. So you are hitting on something valid.

    The problem is that the supreme court refused to follow those rulings. I mean they did at first on the 13th A, allowing Congress to define the prohibition on slavery far beyond simply banning slavery itself. But then with the 14th they started saying more or less, it is our right to define the rights at stake, and all congress can do is pass laws enforcing our decrees.

    But even if we go back to original understandings, I think your argument fails. Look, do you really think, circa 1868, or even 1865, that the founders believed that the justice system was fair or was likely to become fair anytime soon, especially in the south? No. but they nonetheless allowed states to take away a person’s vote, and literally sentence that person to slavery, based on convictions nonetheless. I think its hard to say that about 140 years later, with overt racism on its death bed, subconscious racism not far behind, that now suddenly for the first time this is a problem or that congress can address it. I think it is hard not to conclude that the founders had a massive limitation built into their concepts—that equal protection was much less potent in the criminal justice context.

    By the way, as far as the apportionment issue is concerned, I haven’t researched this in detail, but I wonder if we could say that a person incarcerated in a given county is not a “resident” of that area for apportionment purposes? I know under various statutes, you can live in a place but not be its resident if you don’t intend to stay. I used that loophole to claim I was a Texas throughout law school, even though I knew I was unlikely to be going back to Texas, and thus opting out of state income taxes (I will add that while I knew I wasn’t likely to go back to texas, I also knew that I was unlikely to be living permanently in any of the states I stayed in at the time—namely Connecticut and Maryland, and indeed after law school I moved to Virginia and remained there).

    A.W. (e7d72e)

  82. “I am a little hazy on what you are referring to as “this outcome,” but I can say this. Under basic principles of statutory construction, the 14th A allowed the states to keep felons off the rolls for voters.”

    Just because the constitution permits a state to do something doesn’t mean it forbids congress from stepping in a forbidding that a state do this.

    imdw (6eb217)

  83. imdw

    > Just because the constitution permits a state to do something doesn’t mean it forbids congress from stepping in a forbidding that a state do this.

    No, actually that’s exactly what it means when a state is granted a power: congress can’t just take it away by fiat.

    A.W. (e7d72e)

  84. “No, actually that’s exactly what it means when a state is granted a power: congress can’t just take it away by fiat.”

    It’s not by fiat, it’s by a power given to congress. Here the constitution is recognizing things that states may do and also giving congress certain powers to regulate how states do that thing. In this case congress has said that states cannot take away the right to vote in a manner that has discriminatory results. This is not constitutionally barred.

    imdw (00bfab)

  85. Well, if POTUS is a Constitutional scholar, why not imdw?

    Eric Blair (ddbceb)

  86. He’s not a scholar because he didn’t do scholarship, but the guy has taught constitutional law. Me? I just read the opinion in this case and the 15th amendment.

    imdw (688568)

  87. You miss the point, imdw. You are just a poseur, as always. You want to be taken seriously? Quit acting like a jerk. Then, over time, people will start to respect you, even when they disagree with you.

    But you won’t be able to keep from acting like a troll. It’s who you are.

    Eric Blair (ddbceb)

  88. You know eric, i’m not acting from some secret fountain of knowledge. Like I said, just reading the constitution and the opinion. Like i’m sure AW has done, since he doesn’t want to be a poseur.

    [note: fished from spam filter. --Stashiu]

    imdw (8f8ead)

  89. Oh, and you are quite correct. POTUS never did any scholarship, it appears, even while editor of the Harvard Law Review. Nor had he done any scholarship when he was offered a tenured position at the University of Chicago’s law school.

    Hmmm. I wonder why all those things happened? Probably a bunch of people thought he was all scholarly without any, well, evidence.

    Sort of like the last election, given how things have been going?

    Quite a “B+” performance.

    Eric Blair (ddbceb)

  90. “Hmmm. I wonder why all those things happened? Probably a bunch of people thought he was all scholarly without any, well, evidence.”

    I don’t see who would think he was scholarly, as he wasn’t publishing scholarship. I can see why some people might mistake his teaching for him being a ‘scholar,’ but not other scholars. He did edit some scholarship, and a conservative legal scholar was impressed enough with that to help him get a position at Chicago. But that’s not scholarship, and thus he’s not a scholar.

    Thanks for sharing your concern with “poseurs.” A+ on that effort.

    imdw (490521)

  91. imdw

    > it’s by a power given to congress.

    Except that is just my point, it isn’t granted to congress. It is reserved to the states by the very amendments that expanded these rights. Its really hard to square the fact that you can sentence a man to slavery for a crime, with the notion that prisoners should still have the right to vote.

    And you also have the fact that about 140 years have passed, and now suddenly it is unconstitutional. And bear in mind, back then you could hardly call the system facially neutral. As of the date that the 15th Amendment was ratified many states still had laws on the books stating that a black person could not testify against a white person, although it was certainly unconstitutional after 1868 when the 14th A was ratified. Do you think that the attitudes that this reflected disappeared? Or do you think that justice was very much determined by the color of the skin of the accused and the victims? If there was a time to invalidate the felon exclusion, that is the time to do it. But it never happened. It’s the dog that didn’t bark.

    By comparison if we were talking about desegregation, we might note that most school in the north actually did desegregate in the years following the war.

    So you have one amendment specifically granting that a state can ban felons from voting. Then you have one amendment saying a man might be declared a slave based on a conviction. And you have the fact that these challenges have continually failed for around 140 years, when the argument for this approach made much more sense around 135 years ago. As the song goes, “one of these is not like the other.” This ruling is clearly an ahistorical aberration.

    You combine that with patently fallacious logic from the circuit court, arguing bizarrely that it is inappropriate for the police to be more interested in fighting crimes that occur 1) out of doors, 2) in the inner city, and that 3) harm the poor more than the right, and you realize the decision is just crap. Not to mention that it is a decision in the 9th circuit.

    Look the framers of the civil war amendments were much better on race relations than we typically give them credit for. But there were limits.

    A.W. (e7d72e)

  92. “Its really hard to square the fact that you can sentence a man to slavery for a crime, with the notion that prisoners should still have the right to vote.”

    But it’s not hard to square the fact that you can sentence a man to slavery with the notion that you cannot take away the right to vote in a racially disparate way.

    “If there was a time to invalidate the felon exclusion, that is the time to do it. But it never happened. It’s the dog that didn’t bark.”

    The second clause of the 15th amendment gave congress the power to enforce the first clause. It didn’t set a time limit on this.

    imdw (3c1553)

  93. You know, imdw, you don’t know a bloody thing about which you speak. I particularly enjoy you spouting off about academia.

    But that isn’t a surprise, given your long history of trolldom. What makes me happy is that you are now seeing the “change” you believed in is nothing more than an inexperienced Chicago party hack, even more corrupt and venal and hypocritical than the worst things ever said about GWB.

    You know it, and it burns you inside. All you are left with is making excuses, saying Republicans are bad too, and being a troll.

    Eric Blair (ddbceb)

  94. > It didn’t set a time limit on this.

    Its not about time limits. its about what they understood it to mean. if this is how it was understood then why did it take so long for anyone to figure it out?

    its implausible. and that is only one of several arguments arrayed, here. sorry, the founders didn’t conform to your policy preference. tough.

    A.W. (b1db52)

  95. A.W., it is nice that you try, but spend some time reading over imdw’s former posts here. He’s not here to discuss.

    Eric Blair (ddbceb)

  96. I would look at the privileges or immunities clause of the Fourteenth Amendment.

    nk (df76d4)

  97. Two other constitutional points seem pertinent.

    One is that the Constitution guarantees all states a republic. That suggests fair-and-square voting to some degree although states decide their own qualifications.

    The other is that the 10th amendment reserves all non-inumerated powers to the states or to the people.

    Joseph Somsel (e5cbf5)

  98. “if this is how it was understood then why did it take so long for anyone to figure it out?”

    How could the voting rights act be understood in any way before it was even passed?

    Also, I’m unfamiliar with referring to the Reconstruction amendments as coming from “the founders.” Usually that term refers to people in the late 18th century, not the 19th century which gave us reconstruction. But yes indeed when it comes to racism and race in many ways the founders have different policy preferences than what I and many people today prefer. I’m quite aware of that.

    “You know, imdw, you don’t know a bloody thing about which you speak. I particularly enjoy you spouting off about academia.”

    Spouting what? Am I wrong in saying he wasn’t a scholar because he didn’t do scholarship? I’d think that would be a minimum requirement.

    “What makes me happy is that you are now seeing the “change” you believed in is nothing more than an inexperienced Chicago party hack, even more corrupt and venal and hypocritical than the worst things ever said about GWB.”

    To me Obama promised to be no more than a corporate friendly Dem in the mold of a Clinton. And frankly following Bush, that was enough to want him getting elected. I’ve talked on here about how the Dems are just another branch of the business party. I knew what I was getting. Didn’t you? Or did you believe all that hogwash that he was a muslim commie foreigner?

    “You know it, and it burns you inside. All you are left with is making excuses, saying Republicans are bad too, and being a troll.”

    Keep telling me about “posing” please. That was real good.

    imdw (bb8086)

  99. A-10…
    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    imadumbass is not the only one who forgets this strict limitation on the powers of the Federal Government, and on the States.
    He is in the fine company of virtually every Congressional leader with a “D” after their name; and power hungry bureaucrats everywhere within the Leviathan.

    Plus, for nk, the P&I clause of A-14 has been ignored by SCOTUS since Slaughterhouse, but has a chance of rejuvination with McDonald v. Chicago to be argued March 2nd.

    And, the Free Slave Act was affirmed by Dred Scott, the finest decision ever by a Supreme Court of the United States//s

    AD - RtR/OS! (946807)

  100. The other is that the 10th amendment reserves all non-inumerated powers to the states or to the people

    Right.

    Presumably the voting rights act was passed pursuant to Congress’ power under the fifteenth amendment to enforce the article via appropriate legislation. While it’s been established that Congress may enforce the fifteenth amendment by passing rules which go further than the fifteenth amendment requires, it’s also been established that there’s a limit to that ability, and it’s not clear where that limit lies.

    But even if this use of the VRA does exceed Congressional power under the fifteenth amendment, the exact same use limited to federal elections only almost certainly falls within Congressional power under Article 1, Section 4. As a practical matter, few if any states will maintain seperate voter rolls for federal elections than they do for state elections, and so the result would likely be the same.

    aphrael (e0cdc9)

  101. that 3) harm the poor more than the right

    that’s an interesting typo.

    aphrael (e0cdc9)

  102. You betcha, imdw. All your prior posts sure do fit your current pose.

    NBAT. Again, based on your prior posts.

    Eric Blair (ddbceb)

  103. “You betcha, imdw. All your prior posts sure do fit your current pose. ”

    I know. And yet you go ahead and act as if there was some magic to the “change” you imagine I believed in. But lets talk about scholarship. Is there something here you think i’m wrong about, or is your hand waving pose all we’re going to get?

    imdw (8f8ead)

  104. imdw

    > How could the voting rights act be understood in any way before it was even passed?

    Jesus, imdw, do the math. When I am talking about something that is about 140 years old, what am I talking about?

    Aphrael

    > But even if this use of the VRA does exceed Congressional power under the fifteenth amendment, the exact same use limited to federal elections only almost certainly falls within Congressional power under Article 1, Section 4

    That’s not my understanding of the clause. my understanding is that within certain limitations the qualifications of voters is wholly up to the states.

    > that’s an interesting typo.

    I have a migrane I think, so sorry.

    And indeed saying right for rich is inaccurate. I mean George Soros is not poor. Many very rich people are liberal under the principle of crony capitalism.

    The point is that these are laws that facially target a group of people who uniquely prey on the poor. The courts think this is inappropriate, and I think they are crazy.

    A.W. (e7d72e)

  105. “Jesus, imdw, do the math. When I am talking about something that is about 140 years old, what am I talking about?”

    The wrong thing — this case is under the voting rights act.

    imdw (490521)

  106. Imdw

    Okay, let’s try this again, because you’re not getting it.

    You feel that the 15th section 1 addressed intentional discrimination.

    You feel that section 2 would allow congress to address unintentional discrimination—that is facially neutral rules that would result in more African Americans being excluded.

    But, back in the 1870’s more black people would have been excluded under this rule.

    And that exclusion would be significantly the result of intentional discrimination. Seriously if a black man is accused of raping or attempting to rape a white woman, in Virginia, in 1877, there is no defense he could offer that would keep him from prison or possibly the death penalty. Indeed, he would be lucky not to be lynched.

    And yet in all of that time, despite this rabid and intentional discrimination that you yourself said should have triggered the 15th A… no federal court held that the felony exclusion had a problem at that time.

    So that was their understanding back then. And again, that is one piece of it all. There is also the language of the 14th A and the 13th. I mean you have nothing more than the belief that it should come out the way you prefer. But there is a difference between what the law, including the constitution says, and what we might wish it said. What the law obviously says is that excluding the felons from the vote is kosher. And if you don’t like it, you need to amend the constitution, not to pretend that congress has a power it does not.

    And of course the 9th circuit opinion is based on flimsy evidence as Patterico and myself have indicated, and false and silly assumptions.

    A.W. (e7d72e)

  107. Hey, imdw. You aren’t an academic, and you sure as heck aren’t a scholar. Most of all, you aren’t a college professor, as POTUS supposedly was when he taught ConLaw.

    So you are just…well….trolling. Again.

    Eric Blair (ddbceb)

  108. And remember, imdw: you have a long history of posting here and elsewhere. So all your lofty “I’m above it all” snide-osity regarding partisanship—and your supposed nonpartisanship—rings hollow. Very much hollow. Like a BB in a boxcar.

    What you are is a partisan troll here to “speak Truth to Power” on a right wing blog. I don’t think you care about anything other than being contrarian and trying to score points. It’s tiresome.

    Again, my opinion is based on your frequent prior posts, many of which were quite vulgar to prod a response—like your equally faux-intellectual buddy Myron. Except he had to “bounce.”

    To reiterate: if you are serious about discussing things with people, you have a lot of trollish background to overcome. It will take effort and courtesy, both which are not your strong suites—again, based on the records here and elsewhere.

    Good luck with all that.

    Eric Blair (ddbceb)

  109. What the law obviously says is that excluding the felons from the vote is kosher

    I don’t see that.

    I see the law not saying anything on the subject one way or another.

    It’s not as if it explicitly said felons could be denied the right to vote.

    aphrael (e0cdc9)

  110. “Hey, imdw. You aren’t an academic, and you sure as heck aren’t a scholar. ”

    No shit. But apparently you have a problem with me saying that Obama was not a scholar because he didn’t do scholarship or something like that. So tell me, what’s the problem?

    “And yet in all of that time, despite this rabid and intentional discrimination that you yourself said should have triggered the 15th A… no federal court held that the felony exclusion had a problem at that time.”

    But why would that matter? This case depended on the Voting Rights Act and thus you can’t look at what didn’t happen in the past before the voting rights act existed.

    “I mean you have nothing more than the belief that it should come out the way you prefer.”

    I also have the text of the voting rights act. That counts for something.

    “What the law obviously says is that excluding the felons from the vote is kosher”

    But the constitution doesn’t just say that. It allows states to do this but it *also* allows congress to write laws to protect the right to vote. And what that law obviously says is :

    “No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color”

    And this only since 1982.

    What you don’t seem to get is that while states can disenfranchise felons, they don’t get to do that under whatever means they want. There are limits. They also have to do in ways that comply with the laws that congress passes pursuant to the 15th amendment.

    imdw (ee9fce)

  111. “Most of all, you aren’t a college professor, as POTUS supposedly was when he taught ConLaw. ”

    I think he would more accurately be called a law professor. I never heard of him teaching college classes, but law classes.

    “. So all your lofty “I’m above it all” snide-osity regarding partisanship—and your supposed nonpartisanship—rings hollow.”

    What supposed non-partisanship? I just told you that I wanted Obama elected. That’s pretty partisan. I do clearly prefer democrats over the GOP. It’s just that I’m not fooled at what I’m actually getting with democrats: the more friendly (to me) wing of the business party.

    imdw (019915)

  112. Aphr

    > It’s not as if it explicitly said felons could be denied the right to vote

    Read section 2 of the fourteenth amendment, again. Yes it does. It says not only can they be excluded, but that the states will not even be penalized for doing so in determining apportionment.

    And frankly virtually every state did it at the time.

    imdw

    > But why would that matter?

    Because it is close to the time of the founding.

    > This case depended on the Voting Rights Act and thus you can’t look at what didn’t happen in the past before the voting rights act existed

    But according to your own interpretation of the 15th it should have happened. Look think of it this way. You take the famous “hide the decline” email from climategate. Few know what decline they were trying to hide. Let me explain. These scientists used the formation of tree rings as a proxy for temperature. That is they could take core samples from very old trees, and measure the distance between their rings to indicate just how cold temperatures were a long time ago. So they are plugging in that data, and then something inconvenient happened. They did the same analysis in the 1960’s, and suddenly it showed a temperature drop. Except in reality, there was no corresponding drop. So in other words, their theory predicted that the tree rings would correspond to temperature but when it was put to a real world test it came up laughably short. So they used a few “tricks” to “hide the decline” and bury a power piece of evidence calling their research into serious question.

    By comparison (and I am not comparing you to their dishonesty, mind you), your theory of the 15th A would then require the courts, with or without congressional legislation, to strike down some of these felon exclusions. According to your theory this is what should have happened. But it didn’t. So apparently the people living just after the founding of the 15th Amendment didn’t follow the interpretive rules you yourself advocated. So how do you explain that?

    A.W. (e7d72e)

  113. imdw is repeatedly insincere and unserious… always attempting to send the discussion on a tangent away from the actual topic, and often peddling things he later admits he knew were lies. A lot of people have learned that this blog attracts an element of liberals who are very determined to derail threads, and don’t take imdw or others like him very seriously anymore.

    If you want to debate with him when he’s pretending to be serious, that’s one thing. If you actually think he’s going to be a serious liberal counterpart for examination of the issues, you’ve been fooled.

    Anyway, it’s interesting to see people talk about the practical and legal ramifications of this insane and obviously unintended interpretation of the VRA. Of course it impairs state elections too. Saying that’s OK because of the 15th amendment is a valid point, except that this simply is slight of hand.

    Denying felons the right to vote doesn’t violate the 15th amendment, since the basis is a jury ruling them a felon. The 15th amendment doesn’t say ‘The government has to make sure every legal instrument affects races equally, proportionally, and without problem’.

    It’s not about effect. It’s about basis. Says so, right there, in the constitution. That’s why this ruling is a farce. Whatever problems do or don’t exist that are so racist, you need to fix the actual problem. Find the bad convictions, fix the bad cops, etc. Redefining basis to mean effect is simply a crime against democracy.

    If you’re going to amend the constitution, which is what this ruling amounts to, you need more than Reinhardt and some friends.

    Dustin (b54cdc)

  114. You can’t prove a negative. You can’t prove that no juror was racist.

    We have great protections against innocent people going to jail. Appeals, paid lawyers, burdens of proof. THAT IS ENOUGH. We have a fair legal system. Saying that because the AG didn’t provide evidence or proof of a negative we can utterly reverse the meaning of the 15th amendment, changing basis to ‘good reason to see some disparate effect that is not fully explained’, is hogwash. Reinhardt knows it is. Aphrael knows this isn’t what the the 15th amendment says, in black and white.

    It’s not even demonstrated that the problem exists, but even if it did, the solution is not to make hairbrained interpretations of the constitution with extremely drastic consequences on our elections. That is so far out of line.

    As to IMDW, he said someone murdered and raped a child. I asked him to back up his claim and he admitted it was satire while peddling new lies about the libel suit. He’s not serious. He thinks it’s fun to smear people, so long as it’s him doing the smearing.

    Dustin (b54cdc)

  115. Dustin

    Well, I wouldn’t say that the courts can never strike down a practice that is racially neutral but has a racist effect, if the racist effect is intended. For instance, I think it is fair to say that the purpose the 15th A was to eliminate racial discrimination in voting. But besides banning discrimination by race and color, it also bans discrimination based on “previous condition of servitude.” The logic behind this language is clear: they don’t want a bunch of KKK idiots passing a law that excludes ex-slaves from the franchise and then claiming this was legal. And the courts have taken that to give them permission to look behind the purpose of other laws, such as the infamous grandfather clauses, literacy tests and citizenship tests (I have seen the citizenship test used in one state; it was damn near impossible to pass in the time allotted, and it would be hard to pass without time pressure). So the courts regularly struck down measures designed to take away the black vote by subterfuge.

    But there is still a world of difference between striking down a facially neutral law that was in actuality designed to screw black people over, and a law that actually was neutral, that was not intended to screw black people over, but still has a disparate effect, which what we are arguing about here.

    A.W. (e7d72e)

  116. “By comparison (and I am not comparing you to their dishonesty, mind you), your theory of the 15th A would then require the courts, with or without congressional legislation, to strike down some of these felon exclusions.”

    My theory of the 15th amendment is that congress has the power to pass the voting rights act as amended in 1982. That does not require any previous action by a previous court. But were there any cases before this one of courts upholding racially disparate felon disenfranchisement under the 15th amendment? Or did that dog also not bark?

    “We have a fair legal system. ”

    I think Dustin has solved the problem. The superiority of his posture is also evident in the previous thread when he declared:

    “Some minorities commit more crimes. This explains it all.”

    and

    “And when some minorities get worse sentences, that often is because of the details of the crimes being worse in minority cases.”

    Rightfully I declared that there really is no way to counter this.

    “I asked him to back up his claim and he admitted it was satire while peddling new lies about the libel suit”

    It wasn’t libel. It was a domain name dispute. Do you remember when you claimed someone was remaining anonymous when using their own letterhead and signature? This was not like today. That was a case where there really was an easy way to counter you: reading the document.

    imdw (00bfab)

  117. imdw

    simple question, yes or no. Do you feel that even without legislation the 15th A means that any law with a disparate impact according to race on the right to vote, that is the result of intentional discrimination, is unconstitutional?

    And if so, do you feel that our justice system was filled with intentional racial discrimination in the 1870′s?

    And if you said yes to both, then why didn’t it get struck down.

    As for your question about whether it was challenged, do you really think none of the inmates would have tried this? have you seen what these jailhouse litigants are like?

    A.W. (e7d72e)

  118. imdw, you already lost the argument over your credibility. All you have left to defend it is your own word that isn’t honored.

    Dustin (b54cdc)

  119. “Do you feel that even without legislation the 15th A means that any law with a disparate impact according to race on the right to vote, that is the result of intentional discrimination, is unconstitutional?”

    I prefer “think” rather than feel. I think we can’t know, because the 15th amendment says “on account of race” and the facts you have given me are not enough to determine whether this is “on account of” race. I further think that congress can go further, and enact legislation like the voting rights act which reaches things that have disparate results in order to eliminate harms that are “on account of” race.

    “And if you said yes to both, then why didn’t it get struck down.”

    Maybe because our justice system was filled with intentional racial discrimination.

    Now, you tell me about the dog that didn’t bark. Did courts in the past uphold these challenges?

    “As for your question about whether it was challenged, do you really think none of the inmates would have tried this? have you seen what these jailhouse litigants are like?”

    I’m asking because I don’t know. Do you know? You’re confident in telling me what courts in the past did or did not do. Did they uphold these things? Or were they silent on that too?

    “imdw, you already lost the argument over your credibility.”

    And I’ve told you that you’re correct:

    “We have a fair legal system. ”

    That’s the end of the game.

    imdw (1926aa)

  120. imdw

    > and the facts you have given me are not enough to determine whether this is “on account of” race.

    Really? 1871, alabama. a black man is accused of raping a white woman, before an all white jury. Do you believe it is possible for a black man to be acquitted in that scenario?

    Let’s not be silly or naive here. and lets not impute naivete to the framers of the 15th A.

    I mean, sheesh, come on. i know it puts you in a corner, but you have to admit that southern justice was overtly racist in the 1870′s. its like saying you aren’t sure if gravity pulls downward–it just makes you look foolish to dicker about this.

    A.W. (e7d72e)

  121. imdw, of course you will lie and deny. This is your life. People either aren’t familiar with you or don’t respect you. I wonder what level of self awareness you have.

    Dustin (b54cdc)

  122. “Really? 1871, alabama. a black man is accused of raping a white woman, before an all white jury. Do you believe it is possible for a black man to be acquitted in that scenario?”

    Yes. Try googling this paper: “The Sexualization of Reconstruction Politics: White Women and Black Men in the South after the Civil War ”

    “I mean, sheesh, come on. i know it puts you in a corner, but you have to admit that southern justice was overtly racist in the 1870’s”

    I think there’s still a lot of racism today. That doesn’t mean that voting qualifications are “on account of race” just because they’re imposed on top of the results of an intentionally racist judicial system. You have to look at why those voting qualifications were put into place. You DONT have to look at why those qualifications were put into place if you’re just looking at disparate results, which is what the Voting Rights Act does.

    “imdw, of course you will lie and deny. ”

    About what? The letterhead? Or about this:

    “Some minorities commit more crimes. This explains it all.”

    Because there’s really no lying or challenge to that, is there?

    imdw (017d51)

  123. so let me see if i understand you correctly. the jury convicts a man because they are racists. but the results of that conviction are not the result of racism.

    mmm-kay.

    no, sorry, it means you lost the debate. have a nice weekend.

    A.W. (e7d72e)

  124. “so let me see if i understand you correctly. the jury convicts a man because they are racists. but the results of that conviction are not the result of racism.”

    No you’re not getting it. Let’s make it simple: Juries convict people because of racism. Legislature passes law that says convicts can’t vote — and they do this not because of racism, but for some other reason. Further the jury may not be convicting intending take away the right to vote, but for other reasons — like they just want the guy in jail or whatever. The result is that the denial of the right to vote is not necessarily ‘on account of race’ because that’s not why the legislature was passing that law and not why the jury was convicting. The denial of the right to vote will have racially disparate results, because it is built upon the racially disparate results of the judicial system. So it may pass the constitutional prohibition, but not the statutory one.

    Of course, the reason the statutory one exists is because it is hard to prove the constitutional level — so we use that to try to cover the constitutional cases with a easier level of proof.

    But I’m still curious about the dog that didn’t bark. Were these challenged and upheld under the 15th amendment? Or do you not know? I’ve asked a few times now….

    imdw (e66d8d)


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