Wednesday, February 27, 2013

Voting Rights Law Draws Skepticism From Justices


A central provision of the Voting Rights Act of 1965 may be in peril, judging from tough questioning on Wednesday from the Supreme Court’s more conservative members.
If the court overturns the provision, nine states, mostly in the South, would become free to change voting procedures without first getting permission from federal officials.
In a vivid argument in which the lawyers and justices drew varying lessons from the legacies of slavery, the Civil War and the civil rights movement, the court’s conservative wing suggested that the modern South had outgrown its troubled past and that the legal burdens on the nine states were no longer justified.
Chief Justice John G. Roberts Jr. asked skeptically whether “the citizens in the South are more racist than citizens in the North.” Justice Anthony M. Kennedy, whose vote is probably crucial, asked whether Alabama today is an “independent sovereign” or whether it must live “under the trusteeship of the United States government.”
Justice Antonin Scalia said the law, once a civil rights landmark, now amounted to a “perpetuation of racial entitlement.”
That remark created the sharpest exchange of the morning, with Justice Sonia Sotomayor on the other end. “Do you think that the right to vote is a racial entitlement?” she later asked a lawyer challenging the law, with an edge in her voice that left little doubt she was responding to Justice Scalia’s statement. “Do you think that racial discrimination in voting has ended, that there is none anywhere?”
The outcome of the case will most likely remain in doubt until the end of the court’s current term, in June. Many legal observers predicted that the justices would overturn part of the voting law in 2009, when the court had the same conservative-leaning majority, only to be proven wrong.
One important change, however, is that Chief Justice Roberts suggested in the 2009 ruling that Congress update its formula to determine which parts of the country should remain subject to the law. Congress has not done so.
The question at the heart of Wednesday’s argument was whether Congress, in reauthorizing the provision for 25 years in 2006, was entitled to use a formula based on historic practices and voting data from elections held decades ago.
Should the court strike down the law’s central provision, it would be easier for lawmakers in the nine states to enact the kind of laws Republicans in several states have recently advocated, including tighter identification standards. It would also give those states more flexibility to move polling places and redraw legislative districts.
The four members of the court’s liberal wing, citing data and history, argued that Congress remained entitled to make the judgment that the provision was still needed in the covered jurisdictions. The law passed the Senate unanimously and House overwhelmingly, by a vote of 390 to 33 in 2006.
It’s an old disease,” Justice Stephen G. Breyer said of efforts to thwart minority voting. “It’s gotten a lot better. A lot better. But it’s still there.”
Justice Kennedy said that history taught a different lesson, referring to the reconstruction of Europe after World War II. “The Marshall Plan was very good, too,” he said. “But times change.”
Justice Breyer looked to a different conflict.
What do you think the Civil War was about?” he asked. “Of course it was aimed at treating some states differently than others.” He also said that the nation lived through 200 years of slavery and 80 years of racial segregation.
Debo P. Adegbile, a lawyer with the NAACP Legal Defense and Educational Fund, which joined the government in defending the law, echoed that point. “This statute is in part about our march through history to keep promises that our Constitution says for too long were unmet,” he said.
The law was challenged by Shelby County, Ala., which said that its federal preclearance requirement, in Section 5 of the law, had outlived its usefulness and that it imposed an unwarranted badge of shame on the affected jurisdictions.
The county’s lawyer, Bert W. Rein, said that “the problem to which the Voting Rights Act was addressed is solved.”
In any event, he added, the unusual requirement that a sovereign state’s law did not count until blessed by the federal government required substantial justification. The law, he said, was “an unusual remedy, never before and never after invoked by the Congress, putting states into a prior restraint in the exercise of their core sovereign functions.”
It was common ground among the advocates and justices that the act was important and necessary when it was first enacted.
There is no question that the Voting Rights Act has done enormous good,” Justice Samuel A. Alito Jr. said. “It’s one of the most successful statutes that Congress passed in the 20th century and one could probably go farther than that.”
There was agreement, too, that the nation and the South in particular have taken great strides toward equality.
There isn’t anybody on any side of this issue who doesn’t admit that huge progress has been made,” Justice Ruth Bader Ginsburg said.
Most of the argument instead concerned the formula for determining which states the law covered.
Chief Justice Roberts reeled off statistics to suggest that the coverage formula no longer made sense. Massachusetts, which is not covered, “has the worst ratio of white voter turnout to African-American voter turnout,” he said. Mississippi, which is covered, has the best ratio, he said, with African-American turnout exceeding that of whites.
The more liberal justices responded that the nine states were responsible for a sharply disproportionate share of federal voting-rights violations, adding that Alabama was in a poor position to challenge the choices Congress made in deciding which parts of the country to cover.
Under any formula that Congress could devise,” Justice Elena Kagan said, citing data about voting rights suits, “it would capture Alabama.”
The point seemed to interest Justice Kennedy, in one of his few questions skeptical of the law’s challenger. “If you could be covered under most suggested formulas for this kind of statute,” he asked Mr. Rein, “why are you injured by this one?”
Should the court strike down the coverage formula when it decides the case, Shelby County v. Holder, No. 12-96, Congress would be free to take a fresh look at what jurisdictions should be covered. But Congress seems unlikely to be able to agree on a new set of criteria, given the current partisan divide, meaning the part of the law requiring federal pre-approval of election changes would effectively disappear.
Justice Kennedy asked whether it would be proper to make the entire country subject to the provision. Solicitor General Donald B. Verrilli Jr. said no, at least based on the information compiled by Congress in connection with the 2006 extension of the law.
Justice Kennedy seemed to view the response as a concession. “And that,” he said, “is because that there is a federalism interest in each state being responsible to ensure that it has a political system that acts in a democratic and a civil and a decent and a proper and a constitutional way.”
Congress has repeatedly extended the preclearance requirement: for 5 years in 1970, 7 years in 1975, and for 25 years in both 1982 and 2006.
But it made no changes after 1975 to the list of jurisdictions covered by Section 5, relying instead on a formula based on historical practices and voting data from elections held decades ago.
It applies to nine states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia — and to scores of counties and municipalities in other states, including the boroughs of Brooklyn, Manhattan and the Bronx.

White House, Republicans dig in ahead of budget talks


Looking resigned to the $85 billion in "sequestration" cuts starting on Friday, government agencies began reducing costs and spelling out to employees how furloughs will work.
Expectations were low that a White House meeting on Friday between Obama and congressional leaders, including Republican foes, would produce any deal to avoid the cuts.
Speaking to a business group, Obama said the cuts could shave 0.6 percentage points or more from already anemic growth and urged executives to pressure Congress into compromising on a broad deficit reduction package.
"Whether that can be done in the next two days - I haven't seen things done in two days in Washington in quite some time," Obama told the Business Council, which is composed of chief executives of major U.S. corporations. "The good news is that the public is beginning to pay attention to this."
Public services across the country - from air traffic control to food safety inspections and education - might be disrupted if the cuts go ahead.
Put into law in 2011 as part of an earlier fiscal crisis, sequestration is unloved by both parties because of the economic pain it will cause, but the politicians cannot agree how to stop it.
A deal in Congress on less drastic spending cuts, perhaps with tax increases too, is needed by Friday to halt the sequestration reductions, which are split between social programs cherished by Democrats and defense spending championed by Republicans.
Obama stuck by his demand that Republicans accept tax increases in the form of eliminating tax loopholes enjoyed mostly by the wealthy as part of a balanced approach to avoiding sequestration.
"There is no alternative in the president's mind to balance," White House spokesman Jay Carney told reporters.
Obama wants to end tax breaks for oil and gas companies and the lower "carried interest" tax rate enjoyed by hedge funds.
But Republicans who reluctantly agreed to raise income tax rates on the rich to avert the "fiscal cliff" crisis in December are in no mood for that.
"One thing Americans simply will not accept is another tax increase to replace spending reductions we already agreed to," said Senate Republican leader Mitch McConnell.
In one of the first concrete effects of the cuts, the administration took the unusual step of freeing several hundred detained illegal immigrants because of the cost of holding them.
Republicans described that move by Immigration and Customs Enforcement (ICE) as a political stunt aimed at scaring them into agreeing to end the sequestration on Obama's terms.
The issue looked like it might become more controversial on Wednesday when the Associated Press reported that the Homeland Security Department official in charge of immigration enforcement and removal had announced his resignation on Tuesday just after news of the immigrants' releases came out.
But ICE said the report was "misleading." The official, Gary Mead, told ICE weeks ago of his retirement in April after 40 years of federal service, a spokeswoman said. Earlier, Carney denied the White House had ordered the immigrants' release.
Friday's White House meeting will include McConnell and the other key congressional leaders: Senate Democratic leader Harry Reid, House of Representatives Democratic leader Nancy Pelosi, and House Speaker John Boehner, the top U.S. Republican.
'BELATED FARCE'?
The chances of success were not high.
One congressional Republican aide criticized the White House for calling the meeting for the day the cuts were coming into effect. "Either someone needs to buy the White House a calendar, or this is just a - belated - farce. They ought to at least pretend to try."
Unlike during other fiscal fights in Congress, the stock market is taking the sequestration impasse calmly.
U.S. stocks rose, with major indexes posting their best daily gains since early January, as Federal Reserve Chairman Ben Bernanke remained steadfast in supporting the Fed's stimulus policy and data pointed to economic improvement.
On Thursday, the Senate is expected to vote on competing Democratic and Republican ideas for replacing the sequestration. Both measures are expected to be defeated.
The Republican plan unveiled late on Wednesday would let the sequestration go into effect on Friday, but require Obama to submit an alternative $85 billion spending reduction plan to Congress by March 15, thus allowing more flexibility on how the cuts would be carried out.
Congress would have until March 22 to reject the proposal, in which case the original sequestration would remain in place. Democrats were still studying it. But on Tuesday, Senate Majority Leader Harry Reid said new revenues needed to be part of any substitute plan.
The Democratic proposal would replace the across-the-board cuts mainly with tax increases on the rich coupled with spending cuts. Some of those would be achieved by eliminating crop subsidies for large agricultural companies. More savings would be through minor defense cuts in later years.
Republicans have vowed to block any tax increases for deficit reduction.
Bernanke said sequestration was too drastic an approach for reducing the budget deficit.
"What I am advising is a more gradual approach. I'm not saying we should ignore the deficit. I am not saying we shouldn't deal with long-term fiscal issues, but I think that from the perspective of our recovery, a more gradual approach would be constructive," he told a House Financial Services Committee hearing.
Among many warnings from the Obama administration of possible damage to public services, the Air Force said its Thunderbirds exhibition flying team is expected to be grounded if sequestration happens.
The Pentagon will put most of its 800,000 civilian employees on unpaid leave for 22 days, slash ship and aircraft maintenance and curtail training.
But the full weight of sequestration will take place over seven months, allowing Obama and the Republicans time to work out a deal after the cuts begin this week.
White House spokesman Carney said sequestration would officially start just before midnight on Friday night if no deal were reached.
Government agencies began to tell employees how sequestration will force them to take furloughs. The Environmental Protection Agency acting head, Bob Perciasepe, told employees in an email that the agency did not know how much of its budget will be cut but it was working on an estimate of 5 percent.
"What might that mean for our employees? If the sequester order requires a 5.0% cut, the impact could be up to 13 furlough days," he said. That would likely mean four furlough days by June 1, he said.

Vatican gets ready to say 'Ciao!' to Pope Benedict


The first Pope in nearly 700 years to voluntarily step down, Pope Benedict spoke in front of his final audience Wednesday and will officially resign on Thursday at which point he will be known as pope emeritus. NBC's Anne Thompson reports.
A meeting with the red-clad “princes of the church.” A 10-minute helicopter ride to Castel Gandolfo. A quick wave from the balcony to throngs in a candlelit square.
That’s the script for Pope Benedict XVI’s final hours as spiritual leader of the world’s 1.3 billion Roman Catholics before his resignation becomes official at 8 p.m. Thursday -- ending an often rocky eight-year tenure and launching the church into a potentially contentious search for his replacement.
His farewell address has already happened – a speech Wednesday morning before a cheering crowd of more than 100,000 in front of St. Peter’s, where he acknowledged moments of great joy and difficulty and asked followers to pray for him in his retirement.
The spotlight will remain on Benedict, however, for at least another day before attention turns to the highly ritualized conclave that will choose his successor.
Cardinal Antonio Rouco Varela (3rd L) reacts while attending the last general audience of Pope Benedict XVI.
At 11 a.m. Thursday, Italian time, he is scheduled to meet the cardinals that have rushed to Rome for the historic event. Each will have the chance to say a few parting words to him, but a major speech is not expected.
The personal goodbyes will continue as he leaves the Apostolic Palace before 5 p.m. and is driven to the helipad, where Cardinal Angelo Sodano, dean of the College of Cardinals, will see him off.
The 85-year-old pope knows how to fly a helicopter but presumably will rely on a pilot from the 13th Squadron of the Italian Air Force for the jaunt to the hilltop town where he will live in his summer residence for a few months while a monastery in the Vatican Gardens is prepared for him.
Town priests are planning a prayer vigil in Castel Gandolfo to begin a few hours before Benedict’s arrival, and he is likely to bestow a brief greeting on the thousands crammed into the town square, clutching rosaries and candles.
Once he leaves Rome, there will be only a few more hours in his papacy, which officially ends at the stroke of 8 p.m. Thursday. From that moment on, he will be known as pope emeritus, and aides say a life of quiet reflection will commence.
I think we’ll probably catch some glimpses of him walking in the garden,” Vatican spokesman Greg Burke told NBC’s TODAY. “He’s not the kind of guy who is going on a book tour.”
At the Vatican, the Swiss Guards will go off duty – and the cardinals will be officially called back to work the next day with a formal announcement of what’s called the sede vacante, Latin for "the seat being vacant."
A Vatican spokesman told the Catholic News Service the college will probably not meet over the weekend but could gather the following Monday for informal talks to set a date for the conclave and begin talking about priorities for 266th pope.
Under old church law, the conclave couldn’t start until March 15, but an amendment this week will allow the cardinals to push up the date as along as all 115 electors are in place. There were supposed to be 117, but one is too sick to attend and another recused himself after being accused of inappropriate behavior with priests.
And, of course, the Vatican guesthouse where the cardinals will stay during the conclave must be swept for listening devices before they can move in for the duration.
The length of the conclave — with its four secret ballots a day, cast in the Sistine Chapel — is anyone's guess; it took just two days to elect Benedict and three to choose his predecessor, John Paul II.
Vatican watchers say there is no clear front-runner and Benedict's legacy will loom large as they look to the future.
An introverted theologian, he is credited with pushing the "new evangelization" and repairing rifts with Jews but faulted for not taking stronger action as a sex-abuse scandal tarnished the church's reputation and letting the Vatican bureaucracy run amok.
He alluded to the crises during Wednesday's address, saying he had often felt like "St. Peter with the Apostles in the boat on the Sea of Galilee."
"The Lord has given us many days of sunshine and gentle breeze, days in which the catch has been abundant," he said. "[But] there have been times when the seas were rough and the wind against us, as in the whole history of the Church it has ever been — and the Lord seemed to sleep."

Penn State Upsets No. 4 Michigan 84-78


Jermaine Marshall scored 25 points and Penn State upset No. 4 Michigan 84-78 on Wednesday night for its first Big Ten victory in more than a year.
The Nittany Lions (9-18, 1-14) had lost 18 straight regular-season conference games dating to last season, but they roared back from a 15-point deficit with 10:39 left behind the energetic play of Marshall. The junior guard scored 19 in the second half, including four 3s that whipped Jordan Center fans into a frenzy.
D.J. Newbill added 17 points for Penn State, which hit a season-high 10 3-pointers. Marshall's twisting drive to the basket gave the Nittany Lions a three-point lead before Michigan's Glenn Robinson III misfired on a 3 with 17 seconds left.
Sasa Borovnjak had a memorable Senior Night, hitting two foul shots with 15 seconds left to seal the win. Moments later, Penn State fans rushed the court in delight.
Tim Hardaway Jr. scored 19 points for the Wolverines (23-5, 10-5).
It was Penn State's first win over a top 5 team since defeating No. 5 North Carolina 82-74 in the second round of the 2001 NCAA tournament.
Penn State also got its first conference win since beating Iowa 69-64 on Feb. 16, 2012.
The loss is likely to hurt Michigan as it jockeys for seeding in the NCAA tournament. The Wolverines squandered a chance to pull into a second-place tie in the Big Ten with Michigan State and Wisconsin.
Trey Burke had 18 points and six assists for Michigan, but also committed six turnovers. The Wolverines had 15 turnovers in the game, six more than their season average.
Still, two 3s by Hardaway during a 15-4 run midway through the second half gave his team a 66-51 lead. But it was Penn State that made clutch plays down the stretch.
Marshall led the way, while Ross Travis provided the muscle up front with 15 points and 12 rebounds.
Penn State coach Patrick Chambers has been saying all conference season long that his rebuilding team was "so close" to getting a league win.
The Nittany Lions finally got one against one of the toughest foes they'll face all year.
Two foul shots by Marshall gave Penn State its first lead since the first half, 76-74, with 3:55 left. The Jordan Center rocked as if it were a Michigan-Penn State football game across the street at Beaver Stadium.
Burke hit two foul shots with 1:21 left to get Michigan within one before Marshall's layup that teetered on the rim before dropping in.
It was all Penn State from there.
Midway through the second half, Michigan controlled the lane with dunks and cuts to the bucket. Long-range shooting gave the Wolverines breathing room after Nik Stauskus (12 points, eight rebounds) and Hardaway hit 3s on back-to-back possessions to help build the short-lived 15-point lead after Penn State had drawn within 49-45.
The first half was a sign of things to come. After struggling from long range much of the year, Penn state went 5 of 10 from behind the arc and forced 10 turnovers to stay within 39-36 at halftime.
All five of Michigan's losses have come on the road in the Big Ten — none worse than Wednesday night's defeat. Michigan finished February with a 3-4 record, heading into a showdown Sunday with No. 9 Michigan State.