An idea to save the Voting Rights Act

The Supreme Court has invalidated Section 4 of the Voting Rights Act. That provision sets forth a formula for determining what jurisdictions must get "preclearance" from the Department of Justice to change voting practices (even trivial things such as the location of a polling place).

Technically the Court just said that the Congressional formula is no longer "appropriate legislation" given the changes that have occurred since the Voting Rights Act was passed in 1964. So Congress could theoretically fix the provision by coming up with an up-to-date formula. But many think that's likely to be impossible given the political realities in Congress. The main reason they kept approving the old formula was that it was political poison to get into the weeds of renegotiating the formula. So the provision is fixable in theory but dead in fact.

But what if Congress just passed a law that delegated the responsibility to come up with a good formula to some federal agency? They could even say the formula has to be revisited and revised every year, or whatever, thus ensuring that it would always be up to date. This would bypass many of the political obstacles to getting the provision fixed, and it would also meet the Court's argument that the provision was based on antiquated factors.

There are probably big problems with this idea, and I'm certainly no expert on the Voting Rights Act or the unconstitutional delegation doctrine, but I thought I'd just throw it out there for discussion.

Was anyone denied Confirmation?

Read the initial post on this story here.

According to the website LifeSiteNews, Father LaMoine denies that he refused to confirm Lennon Cihak.  Instead, Father LaMoine says that Mr. Cihak decided not to be confirmed.  However, Father LaMoine goes on to say that had Mr. Cihak chosen not to be confirmed, Father LaMoine would have refused to confirm him.  The story quotes Father LaMoine as saying, “You can’t have people out there saying things that are so contrary to the central teaching and doctrine of the Catholic faith, and going through Confirmation.After he put it out in the public, we would have looked like a bunch of hypocrites in confirming him.”  So if one believes Father LaMoine's version of events, Father LaMoine would have denied Mr. Cihak confirmation if Mr. Cihak had let him.  Decide for yourselves whether this is an improvement.

I want to assure our Reader(s)™ that the Catholic Church is not monolithic on this point.

The Catholic Church: still messing with children.

This is not a post about recent news of a Roman Catholic priest sexually abusing a child.  Although it would be pretty easy to do a post about that.

The Outer Limits of the First Amendment

Out in California, they sure do vote on a lot of stuff.

For example, Los Angeles County had a ballot initiative this year about whether actors in pornographic films should be required to wear condoms. The idea, apparently, is that this will improve the public health by reducing the spread of sexually transmitted diseases. However, county lawmakers opposed the measure because it will require the creation of a new bureaucracy:

The county has said the law, pushed by AIDS activists concerned about disease outbreaks, forces the establishment of a new bureaucracy, complete with inspection schedules, a permitting process, a training program for dealing with bodily fluids and a special vault for evidence seized from movie sets. County employees could even be called upon to screen X-rated titles for condom compliance.

What's more, not even public health officials in Los Angeles county supported the measure:

County officials said they were in favor of condom use, but didn't support new local action because the state had jurisdiction for workplace safety and, in any case, enforcement would be too difficult. Dr. Jonathan Fielding, the county health officer, wrote in a report this summer that it would be challenging to identify "underground, inconspicuous, intentionally non-compliant filmmakers." County lawyers also said they worried that the measure violated the 1st Amendment.

Nonetheless, the measure passed and, as County supervisor Zev Yaroslavsky said, "People voted for it, and they're entitled to have it on the books. It's a challenge we're going to have to confront."

Pornographers, of course, are in an uproar and are threatening to take their business elsewhere:

The passage of the law created an outcry Wednesday in the adult entertainment industry. Porn producers have long said consumers will not purchase movies in which actors wear condoms and on Wednesday, executives and directors once again threatened to move from long-time production sites in the San Fernando Valley to other California counties, Las Vegas or Hungary, Europe's center of adult moviemaking.

Some thoughts:

1) I never thought I'd see the day where government officials in an urban county would oppose a law on the basis that it would create too much bureaucracy but then the people would go ahead and overrule them by saying, in effect, "we want more bureaucracy!" Truly, we get the government we deserve.

2) It seems to me that the lawmaking system that permits such a thing to occur is sub-optimal. In other words, it is too easy to get these kinds of measures on the ballot in California.

3) I am looking forward to the First Amendment fight over this new law. Porn has often been at the center of First Amendment jurisprudence. Indeed, under the standard set forth in Roth v. United States, the Supreme Court was constantly reviewing pornography to determine whether it was "obscene" and therefore beyond the First Amendment's protection. This led to one of the Supreme Court's great moments, in Jacobellis v. Ohio, when Justice Stewart admitted that he could formulate no legal standard to separate obscenity from protected material but "I know it when I see it." The current standard on obscenity, set out in Miller v. California has essentially ended such investigations and allowed hard-core pornography to proliferate freely. But the proliferation is partly because neither the pornographers nor the prudes want to test the boundaries of the law, for fear of enshrining an unfavorable regime. In other words, the prudes are waiting for their moment. Maybe this is it. (But probably not.)

Cook County Mails Voter Registration Information to Wrong Addresses

According to the Evanston Patch:

An unknown fraction of about 1,500 people were sent someone else's voter information due to a clerical error at the Cook County Clerk's office. The Clerk's office says the info is incomplete and harmless.

Well, I am just shocked.

On Actually Voting in Illnois

I grew up in Wisconsin, where it is very easy to vote. You show up at the polls with some proof of your address, and you vote. Then I moved to Minnesota, where it was much the same.

Now I live in Illinois. It's harder to vote here. You have to register in advance. And, as my wife found out today, your registration can be rendered "inactive" by some bureaucrat without notice. If you show up to the local polling place with this "inactive" registration, you will be turned away. [BUT SEE UPDATE.]

Here's the story, set forth in emails between me and the Cook County clerk's office.

Did Richard Milhous Nixon win the popular vote in 1960?

A fascinating blog post by Sean Trende at RealClearPolitics says yes, although the real answer is that the question is incoherent because of the way Alabama voted for its electors.

Meanwhile, according to Nate Silver there is currently a 5.4% chance that Mitt Romney will win the popular vote but lose the election this time around (see "scenario analysis" in right sidebar at link).

And Ross Douthat wonders whether, in such an event, the Electoral College could survive.

I wonder, on the other hand, whether the Electoral College could ever be killed.

On Voting

People are always asking me: "Bart, how should I decide who to vote for in the upcoming presidential election?" In the future I will refer these people to this blog post.

My advice is simple, but surprisingly controversial: "You should vote for the candidate that you actually want to become president." This is controversial, it turns out, because it seems to give people license to vote for a candidate other than a Republican or a Democrat.