Voting Rights And Property Rights

The Supreme Court issued several major rulings today covering issues ranging from voting rights to property rights. Tomorrow will be the final decision day and will feature marriage equality rulings.

The voting rights case was Shelby County v. Holder and focused on two aspects of the 1965 Voting Rights Act. Sections 4 and 5 were challenged by Shelby County Alabama on the grounds that they were unconstitutional.

Section 4 of the law lays out a formula which determines whether a state or local government is within the coverage of the act while section 5 requires that those governments under the act per section 4 have to get clearance from Washington either through the Justice Department or three-judge panel to make changes to their voting laws.

Section 2 which was not impacted by the decision applies to all state and local governments and forbids discrimination in voting but requires that a challenge be brought by a voter or some other challenger rather than automatically requiring review.

In a 5 to 4 ruling the Court determined that section 4 was based on data over 40 years old and therefore seriously out of date and did not reflect “current conditions” anywhere in the country.

Accordingly that provision was struck down however the Court also stated that Congress can draft a new formula that reflects current conditions. In other words the general concept was not struck down instead the court required that the data be periodically updated.

The court also left in place section 3 which allows the federal government to go to court and ask that a state or local government he put under the provisions of section 5 because of its more recent history in dealing with minority voters. This provision has been used to bring states like Arkansas and New Mexico under section 5 as well as a number of cities and counties.

In his majority opinion Chief Justice Roberts stated that the Court had voiced concerns about the law more than four years ago giving Congress ample time to update the covered formula but they did not do so and as a result the court had no choice but to declare the section unconstitutional.

Justice Ginsburg joined by the three other liberal justices issued a strong and vehement dissent stating that the court should not override the Congress’ recent decision to extend the act for another 25 years.

The question of course is whether Congress will be able to agree on a new version of section 4 and whether that new version would satisfy the court. In his ruling Chief Justice Roberts made it clear that inclusion under section 4 must reflect current discriminatory practices and not rely on practices of the past.

Although I understand many will be troubled by this decision it seems to me to be rooted in reasonableness. If someone today is engaging in discriminatory practices then they should absolutely be included under the provisions of this law and subject to stringent review by the federal government.

On the other hand to say that because someone 40 or 50 years ago engaged in such practices requires that they be subject to review seems unfair. It’s like saying because your father or grandfather did something wrong we should assume that you’re doing the same thing and punish you for it.


The property right case was Koontz v. St. Johns River Water Management District and was a victory for property owners over government regulatory agencies.

This case dealt with a man who wanted to develop a portion of his property in Florida. Because the property had been designated as a wetland it required special permission from the local government agency. The agency refused to approve his permit unless he agreed to a list of conditions, including payment to improve public lands in another area.

Mr. Koontz objected and sued under a Florida law but his claim was denied by the Florida Supreme Court who ruled that he had no claim because 1) the existing standards set by the US Supreme Court did not apply to denial of permits, only to approval and 2) that they did not apply to demands for money, only to actions directly related to the land.

The standard in question were established in two cases: Nollan v. California Coastal Commission and Dolan v. City of Tigard. Those cases require that there be a reasonable connection between what the government demands from the landowner and the impact of the proposed land use. For example if the development cuts off public access to a beach it might be reasonable to demand an easement to provide public access.

The US Supreme Court reversed the Florida Court, holding that 1) the Nollan-Dolan standard must apply to both approval and denials of permits  and 2) that it must include demands for money.  The logic was that if you did not require this then local governments would simply use denials and money demands to circumvent the Nollan-Dolan rule.

The four dissenting justices agreed that the rule must apply to denial as well as approval of permits but disagreed on the issue of the demand for money because they felt it would become too complicated if applied any fees (such as normal permitting fees).


Posted on June 25, 2013, in 14th Amendment, 15th Amendment, 5th Amendment, Amendments, Constitution, Patrick and tagged , . Bookmark the permalink. Leave a comment.

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