Folks are wondering why Manchin would propose such an aggressive expansion of the VRA. Here's why

[StarfishSaver]

And it's not good.

Expanding the Voting Rights Act to 50 states would likely make it unconstitutional and guarantee it will be struck down.

Race-conscious remedies like the Voting Rights Act must be narrowly tailored to address specific problems in specific places. They can't be blanket solutions applied everywhere. That's why Section 5 of the Voting Rights Act applied only to certain jurisdictions with a demonstrated history of voter suppression. In order to get there, Congress held hearings, conducted investigations and made specific findings to support the provision. And even then, the Court ruled that the formula was inadequate and provided insufficient basis to the remedy the law required and imposed an unfair burden on jurisdictions without proof that they were in the wrong.

Manchin's "50 state strategy" applying the VRA's provisions to every state and locality whether or not they have any history of discrimination. It would surely be found to not be narrowly tailored, as required by the Constitution, and to be overly broad and thus, unconstitutional.

I think Manchin knows that and he knows the Democrats won't agree to it for that reason. Because most people don't understand this constitutional requirement, they will blame the Democrats for not being willing to go as far as Manchin wants, something Republicans will gladly exploit.

Don't be fooled. Manchin's proposal is NOT a good one.

[SoCalNative]

1. Except that it WAS tailored to specific places previously

and was struck down by the Roberts court.

[StarfishSaver]

2. Exactly

It was struck down because the Court said the record developed wasn't sufficient to justify the restrictions the VRA put on the individual jurisdictions, even though the record was very extensive and robust, based on years of research and hearings.

If that wasn't good enough, imagine what the Court would do to a law covering every single jurisdiction in the country passed with no or few hearings, no investigations proving that every one of those jurisdictions had a history of voter suppression? It would be thrown out - even the liberal justices would have no choice but to invalidate the law on the basis of its overbreadth.

[Haggard Celine]

5. I read an article here yesterday that said the law was

struck down because it applied only to a few states, and the conservative Justices said it was wrong to treat some states differently from others. The article said that there wasn't any constitutional basis for saying that all states had to be treated the same, but that was the reasoning behind their decision to strike it down. Manchin thinks that if the law applies equally to all states, it will be upheld by the Court. I think they'll find another reason to strike it down anyway, but that's what the article said.

[StarfishSaver]

11. That's not totally correct

The pre-clearance provision wasn't struck down because it applied only to a few states. It was struck down because the Court said Congress had not proven those jurisdictions had engaged in activities that justified their being "burdened" by the requirements of the pre-clearance provision. That would be the problem on steroids if the law were to be applied nationwide as states and jurisdictions with no demonstrated history of voter suppression were subjected to the law's requirements.

Manchin surely knows this - if he doesn't, his staff should educate him because that's basic law. And it's why the Voting Rights Act was neither permanent nor nationwide - as I said, remedial laws like this cannot be applied in a blanket fashion because that violates the Constitution's requirement that these kinds of laws be very narrowly tailored.

If the article said what you say, it is wrong. There's no constitutional basis for requiring all states to be treated the same. But if a state is going to be subjected to heightened requirements, such as a pre-clearance provision - the law must meet a strict scrutiny standard and be narrowly tailored to address the specific, demonstrated problem. It can't just be applied proactively to all states.

[lagomorph777]

26. That line of reasoning makes more sense to me - it SHOULD apply to all states; racism is everywhere.

However, sound reasoning does not seem to be a strong suit at SCROTUS these days...

[StarfishSaver]

29. The Voting Rights Act and the current bills DO apply to all states

But the preclearance provision, by necessity, only applies to certain states. Right wingers have often in the past tried to change the bills to make it nationwide because they knew that would be unconstitutional and, thus, doom the bill. Manchin's proposal would do just that. He should know better.

A 50-state pre-clearance provision is a non-starter. It would never get past the first court challenge.

[Fiendish Thingy]

9. Are you suggesting HR1/HR4 would be rejected as unconstitutional? Nt

[StarfishSaver]

12. If the pre-clearance provision were expanded to all 50 states, it would be struck down w/o question

[Fiendish Thingy]

14. What about the clauses regarding gerrymandering, early voting, paper trails, etc.? Constitutional? N

[StarfishSaver]

16. Those are probably fine

But the current version of the bill - which is a different bill - already applies nationwide, so Manchin's proposal does nothing to expand it. But

My concern is that he is pushing for a nationwide expansion of the pre-clearance provision in the John Lewis Voting Rights Act, which would doom it. It's a poison pill.

[Volaris]

21. I get it, but by that legal logic, the only places where the EPA would have

any kind of functional jurisdiction is in places where environmental degradation had already occurred...

[StarfishSaver]

23. No. That's different

The EPA doesn't involve any race-based remedies and therefore, is not subject to the same standard of scrutiny that the Voting Rights Act is.

[SMC22307]

3. Many DUers have railed against Manchin for years...

but are always told he's the best we can do in West Virginia. Bullshit. I'd wager an authentic Democrat like John Fetterman (Lieutenant Governor of PA) could win in the state.

[NewJeffCT]

4. Manchin was primaried from the left in 2018

by Paula Swearengin. Manchin won the primary by 30% and then barely held on to win the general election.

In 2020, Swearengin won the nomination to run against Republican Shelly Moore Capito for Senate. Capito won by nearly 45%.

Army veteran Richard Ojeda tried to run as that authentic Democrat in 2018 and was leading in many polls in a heavily Republican district for US House, but ended up fading in the end and lost by 13% . He did not get the nomination against Swearengin last year for Senate, though, losing in a close primary race. Ojeda is more progressive than Manchin, but still fairly moderate.

[AZSkiffyGeek]

10. Ojeda also ran as pro-Trump at one point, didn't he?

Or at least claimed he voted for Trump over Clinton?

[NewJeffCT]

13. Yes

In 2016, he said he voted from Trump...but ran as anti-Trump

https://www.cnn.com/2018/10/03/politics/richard-ojeda-west-virginia-trump-country-congress

[SMC22307]

25. So he's not an authentic Democrat. I really think a John Fetterman could win. (n/t)

[SMC22307]

27. Did she have DNC backing? Or a Stacey Abrams-like grassroots movement behind her?

Why did Ojeda "fade in the end"? I vaguely remember some controversy surrounding him, but don't recall. Did he have the Democratic machine behind him? I still think a John Fetterman could pull if off - jobs, healthcare, education and legal weed.

[StarfishSaver]

32. He's probably the best that can come out of W.Va, so I'm not interested in getting rid of him

I just want to get more Senate Democrats elected so he no longer controls the Senate agenda.

[NewJeffCT]

40. that's the best way to do it

Flip seats in Wisconsin, NC, PA and Ohio and Manchin and Sinema are much less powerful

[onenote]

33. That's a wager you'd lose.

[Make7]

6. I'm not sure I am understanding the argument.

Doesn't Section 2 of the VRA already apply everywhere? But you say provisions of the VRA need to be narrowly focused, as required by the Constitution.

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations...

It seems Congress has broad powers to regulate elections in all the States.

[StarfishSaver]

15. Section 2 applies everywhere, but Section 5, the preclearance provision applied only to a few places

Section 2 is a prohibition and, therefore, it is fine for that to apply nationwide. But Section 5 imposes additional requirements on certain places - i.e., required particular states and localities to submit any changes to their laws or processes that could affect voting to DOJ for preclearance before they could be enacted. Because the law placed an additional duty - or as some people see it "burden" - on those areas, the law must be predicated on a clear showing of a history of discrimination and voter suppression and must be very narrowly tailored to address that problem and only that problem. Every time the VRA was reauthorized, Congress conducted extensive hearings, investigations, etc., to demonstrate the existence of such problems in the covered jurisdictions. The reauthorized law contained only those jurisdictions that met the criteria.

Even with the voluminous record proving that the covered jurisdictions had a history and continuing pattern of voter suppression, the Court ruled that the formula used was faulty because it was not narrowly tailored enough and risked including - "burdening" jurisdictions who really shouldn't have been included. That's why they threw out Section 5 - not because it only applied to a few places but because they claimed Congress' formula for determining which states to include could unfairly loop in states and localities who didn't have a proven pattern of voter suppression.

If preclearance provision were applied nationwide, this law would be thrown out. Even the liberals on the Court would likely agree since this would be a blatant constitutional violation.

This is one reason that civil rights legislation is so hard to craft - there are so many Constitutional restrictions on how remedial measures are promulgated - largely because the right has been so successful in using the 14th Amendment to fight back on what they claim to be "reverse discrimination" and painting everyone with too broad a brush ("not all white people ...".)

I hope that makes sense ... If not, please let me know.

[Xoan]

30. You're making me wonder if the Constitution really sucks.

[StarfishSaver]

31. The Constitution is fine. Awesome, in fact

It's the right wing judges interpreting it and have turned the 14th Amendment on its head - distorting it from a provision intended to protect minorities into a sword used by the white majority (particularly white men) to maintain their white supremacy and privilege - who are the problem.

[speak easy]

34. The constitution has a gaping hole - the pardon power.

[StarfishSaver]

35. The Constitution isn't perfect. It relies, by necessity, on humans

There is no way to craft an airtight document. It is up to us to put the right people in power.

[speak easy]

37. An unrestricted power to pardon

is an open invitation to subvert the rule of law. It is a disastrous cut and paste of the powers of the English King.

[StarfishSaver]

38. The pardon has worked fine for more than 200 years

The problem isn't the power. It's the person who exercises the power. Most powers of the president can be abused in the hands of a despot. We need to be more careful about who we hand over the powers of the presidency.

[speak easy]

39. Put an restricted power into the hands of an actor,

without any check, balance or review at all, is an invitation to autocracy. It is structural flaw.

The dangers were understood from the outset

“The president ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection? The case of treason ought, at least, to be excepted."

but dismissed, by those who contended that impeachment would be sufficient to a president in line. They were wrong. There was never a ghost of a chance that impeachment would not be a political process.

https://www.washingtonpost.com/history/2019/04/21/the-president-himself-may-be-guilty-why-pardons-were-hotly-debated-by-founding-fathers/

[Mr. Sparkle]

7. Manchin is too stupid to think!

He really should leave it to the professionals.

[Hortensis]

17. Any law written now to protect one or minority races is deeply inadequate, and suspect.

Sure, minorities are targeted more, but our democracy and the sovereignty of all citizens is under attack, and the main weapon and tactic is subversion of everyone's right to vote. If we'd lost, 2020 might well have been the last genuine national election any of us voted in.

But try, try again. Bills to curb voting rights have been introduced in almost every state, including all the very white ones. Among which is Manchin's WV.

Blacks are only 13.3% of all citizens. Tailoring protection to them is not protection. It can be a pretense though.

[StarfishSaver]

19. The various voting rights laws and bills aren't drafted to only protect Black voters

But it is not unconstitutional to discriminate against people of the same race for political purposes. For example, voter suppression bills in very white states intended to suppress the votes of people based on their political leanings is neither illegal nor unconstitutional. It is, however, unconstitutional to violate anyone's right to vote based on their race, whatever their race is. So if a state legislature tried to make it harder for white voters to cast a ballot, the Voting Rights Act and the proposed bills would operate against that exactly the same way it operates regarding measures intended to curtail the Black vote.

[Hortensis]

28. Let's hope. It would have to be clearly targeted at white-only voters and

proven later in court, after the winners have taken office.

Of course all voting rights laws will help, and we do have to protect the rights of minorities constantly under attack.

But I do wonder how much Republican strategies are being formulated to avoid over dependence on suppression of the vote in heavily minority states.

If the Republicans take over, it will likely be in large part by negating the power of those AA who do vote by subverting an even larger number of white Democratic votes. There are over 5 times as many whites, and most are in districts the Republicans must control. Many of those are in very white regions, and we know Repubs have learned out to win control of whole states and the nation by identifying and targeting strategic micropopulations. For reasons you explain, in most of these areas the laws we're discussing just won't come into play.

This is a kind of fun interactive map of the U.S. showing the most PREVALENT races in each area, town, etc.

https://flowingdata.com/2015/05/04/map-of-most-common-race/

(Regarding the dark green "Hispanic," many of those are white and consider themselves white, not minority even if they identify Hispanic/Latino.)

[dsc]

18. A bunch of voting rights lawyers disagree with you on this

Narrowly tailored has usually, if not always, applied to the amount of intrusion to a particular person or group of people, not the number of people being intruded upon.

[StarfishSaver]

20. What "bunch of voting rights lawyers" disagree with me on this settled tenet of Constitutional law?

Please identify them and tell me exactly what they've said about this.

[dsc]

22. Here is one

https://www.vox.com/22434054/joe-manchin-voting-rights-act-for-the-people-john-lewis-preclearance-filibuster-senate

[StarfishSaver]

24. Ian Millhiser isn't a voting rights lawyer, much less "a bunch" of lawyers

He's a journalist with a law degree. And while he may be knowledgeable about the law, in my opinion he is flat out wrong to believe that the Court might be willing to accept a 50-state pre-clearance provision when a less-conservative Court threw out a pre-clearance provision applying to a few states because it was too broadly applied.

As I said, there's a reason the Voting Rights Act pre-clearance provision was never applied to the entire country, despite calls from some quarters (usually right wing Republicans who knew this would doom the provision) to do so. It's the same reason the VRA was not made permanent, but has to be re-authorized every few years.

[FakeNoose]

36. StarfishSaver thanks for this post - it's very helpful