Voting ruling lamented, lauded

The Supreme Court puts pressure on Congress to update a 1965 law.

THE WASHINGTON POSTJune 26, 2013 

  • SUPREME COURT NOTEBOOK

    Private property rights

    In a decision bolstering property rights, the court ruled that a Florida landowner could sue a local government agency for denying him a building permit because he refused to pay for improvements on public property several miles away.

    The 5-4 decision expanded the ability of property owners to claim that government requirements attached to land-use permits amount to an improper "taking" under the Constitution. The Fifth Amendment says private property cannot be taken for public use without "just compensation."

    "The ruling is a powerful victory for everybody's constitutional property rights, from coast to coast," said Paul J. Beard II, principal attorney for the Pacific Legal Foundation, a property rights group that represented the landowner in the case. "Regulators can't hold permit applicants hostage with unjustified demands for land or other concessions - including, as in this case, unjustified demands for money," Beard said.

    Writing for the majority, Justice Samuel Alito said "extortionate demands" from government agencies in exchange for granting a permit application "frustrate the Fifth Amendment right to just compensation" and are prohibited by court precedents.

    Adoption case

    The justices said that federal law doesn't require that a Native American child be taken away from her adoptive parents and given to her biological father.

    The justices' 5-4 decision came in a case about a law intended to keep Indian children from being taken from their homes and typically placed with non-Indian adoptive or foster parents. South Carolina courts said the 1978 Indian Child Welfare Act favored the biological father of the girl, named Veronica. But the South Carolina couple who raised her for the first 27 months of her life appealed that decision.

    Alito, writing for the court's majority, said the federal law didn't apply in this case because the biological father never had custody of the child and abandoned her before birth. Alito also said the law doesn't stop non-Native Americans from adopting the child when no other eligible candidates stepped forward.

    The law "doesn't apply in cases where the Indian parent never had custody," said Alito, who was joined in his opinion by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Stephen Breyer.

    Gay marriage

    The U.S. Supreme Court on Wednesday will decide whether same-sex couples will soon have the legal right to marry in California for the first time since voters forbade such nuptials by passing Proposition 8 nearly five years ago.

    Ending months of anticipation, the Supreme Court announced Tuesday that it will release rulings Wednesday in the long-running legal battle over Proposition 8 and a separate challenge to the 1996 federal Defense of Marriage Act, which denies federal benefits to same-sex couples nationwide.

    Roberts indicated that the court will end its term with rulings in its remaining cases, and the same-sex marriage cases are two of the three still to be decided. The rulings will be released starting at 8 a.m. MDT.

    The justices are reviewing a federal appeals court's ruling last year striking down Proposition 8, a voter-approved ban on same-sex marriage. The court is also considering a separate ruling declaring DOMA unconstitutional.

    Statesman wire services

WASHINGTON - With a 5-4 vote Tuesday, the court invalidated a crucial component of the landmark Voting Rights Act, but not the act itself, ruling that Congress has not taken into account the nation's racial progress when singling out certain states for federal oversight.

Swing vote Justice Anthony Kennedy joined Chief Justice John Roberts and the other conservative members in the majority.

The court did not strike down the provision that calls for special scrutiny of states with a history of discrimination, but it said Congress must come up with a formula based on current data to determine which states are subject to the requirements.

Proponents of the law called the ruling a death knell. It will be almost impossible for a Congress bitterly divided along partisan lines to come up with such an agreement, they said.

And there could be immediate consequences from the court's ruling. Just hours after it was announced, Texas Attorney General Greg Abbott said his state will move forward with a voter-identification law that had been stopped by a panel of federal judges and will carry out redistricting changes that had been mired in court battles.

The act covers Alabama, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia, as well as Alaska, Arizona and parts of seven other states. It requires them to receive "preclearance" from the U.S. attorney general or federal judges before making any changes to election or voting laws.

'THE FORMULA'

Roberts said the court had warned Congress four years ago, in a separate case, that its decision to continue using a formula based on "40-year-old facts" would lead to serious constitutional questions.

"Congress could have updated the coverage formula at that time, but did not do so," Roberts wrote. "Its failure to act leaves us today with no choice but to declare 'the formula' unconstitutional."

He added, "Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions."

He was joined by Justices Kennedy, Antonin Scalia, Clarence Thomas and Samuel Alito.

One sign of racial progress has been the election of the nation's first African-American president, who said Tuesday that he was "deeply disappointed" in the decision.

"For nearly 50 years, the Voting Rights Act ... has helped secure the right to vote for millions of Americans," President Barack Obama said in a statement. "Today's decision invalidating one of its core provisions upsets decades of well-established practices that help make sure voting is fair, especially in places where voting discrimination has been historically prevalent."

In Virginia, the state government presumably will no longer need approval from Washington for its new voter-ID law. The law could still be subject to a legal challenge, but the burden would be shifted to plaintiffs to show that the law would hurt minority voters.

THE DISSENT

Attorney General Eric Holder, who called the decision a "serious setback for voting rights," said his department will "continue to carefully monitor jurisdictions around the country for voting changes that may hamper voting rights."

Justice Ruth Bader Ginsburg emphasized the liberal court members' disagreement with the decision by reading her dissent from the bench. She said the majority inserted itself into a decision that the Constitution's Civil War amendments specifically leave for Congress.

"When confronting the most constitutionally invidious form of discrimination, and the most fundamental right in our democratic system, Congress' power to act is at its height," Ginsburg wrote in her dissent.

She noted that the 2006 extension of the Voting Rights Act, and the continued use of the formula in Section 4, was approved unanimously in the Senate and signed by President George W. Bush. "What has become of the court's usual restraint?" she asked.

She was joined in dissent by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.

'AS IF NOTHING HAD CHANGED'

Roberts, too, was ready with history lessons. In his opinion, he noted that in 1965, white voter registration in Mississippi was nearly 70 percent and black registration stood at 6.7 percent. By 2004, a greater percentage of blacks than whites were registered to vote in the state, and that was true in five of the six states originally covered by Section 5.

"These are the numbers that were before Congress when it reauthorized the act in 2006," he said.

Roberts cited the deaths of men registering others to vote in Philadelphia, Miss., and "Bloody Sunday" in Selma, Ala. "Today both of these towns are governed by African-American mayors," Roberts wrote. Yet the "extraordinary and unprecedented features" of Section 5, along with the coverage formula, were reauthorized "as if nothing had changed" in America.

'EGREGIOUS BETRAYAL'

Reaction to the ruling was impassioned.

Edward Blum, who coordinated the current challenge to Section 5 and a previous one in 2009, said the decision "restores an important constitutional order to our system of government which requires that all 50 states are entitled to equal dignity and sovereignty. Our nation's laws must apply uniformly to each state and jurisdiction."

Civil rights groups were outraged, though. "I think we should not soft-pedal what is an egregious betrayal of minority voters," said Sherrilyn Ifill, head of the NAACP Legal Defense Fund, whose lawyers participated in the case.

In his opinion, Roberts noted that the decision "in no way affects the permanent, nationwide ban on racial discrimination in voting" found in another part of the Voting Rights Act. And he said that "Congress may draft another formula based on current conditions."

But whether there is any bipartisan appetite for that on Capitol Hill is questionable; some lawmakers said such an attempt would be unsuccessful.

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