In 2008, the Supreme Court decided Crawford vs. Marion County Election Board. Previously, the state of Indiana had passed a statute requiring voters to show photo ID at polling places, something that was likely to disproportionately hurt black turnout. Indiana's justification for the law was its interest in preventing voter fraud, something that they were unable to demonstrate even a single case of. Nonetheless, the court upheld the law under this reasoning:

If a nondiscriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators. The state interests identified as justifications for SEA 483 are both neutral and sufficiently strong to require us to reject petitioners’ facial attack on the statute. The application of the statute to the vast majority of Indiana voters is amply justified by the valid interest in protecting “the integrity and reliability of the electoral process.”

Today, the Supreme Court decided Shelby County vs. Holder, an attack on the "preclearance" requirement of the Voting Rights Act. In 2006, Congress renewed the Act for 25 years, and after considering voluminous evidence decided not to make changes to the formula for deciding which states require preclearance for changes to their voting regulations and which ones don't. Nonetheless, the court overturned the law:

Congress did not use the record it compiled to shape a coverage formula grounded in current conditions. It instead reenacted a formula based on 40-year-old facts having no logical relation to the present day. The dissent relies on “second-generation barriers,” which are not impediments to the casting of ballots, but rather electoral arrangements that affect the weight of minority votes. That does not cure the problem. Viewing the preclearance requirements as targeting such efforts simply highlights the irrationality of continued reliance on the §4 coverage formula, which is based on voting tests and access to the ballot, not vote dilution. We cannot pretend that we are reviewing an updated statute, or try our hand at updating the statute ourselves, based on the new record compiled by Congress.

Note the difference. In Crawford, where the target is a law that's likely to disenfranchise black voters, the bar for constitutionality is almost absurdly low. Regardless of what the real motives of the lawmakers are, or what the likely effect of the law is, it's valid if the state merely asserts a "neutral justification." That's it.

But in Shelby County, where the target is a law designed to protect black voters, the bar for constitutionality is suddenly much higher. Even though the Fifteenth Amendment gives Congress the unconditional right to enact legislation designed to prevent states from abridging the right to vote "on account of race [or] color," the court ruled that, in fact, Congress is quite fettered after all. It cannot decide to simply renew a law that it thinks is working well. Instead, it's required by the court to update its formulas to satisfy the court's notions of what's logical and what isn't.

So here's your nickel summary. If a law is passed on a party-line vote, has no justification in the historical record, and is highly likely to harm black voting, that's OK as long as the legislature in question can whomp up some kind of neutral-sounding justification. Judicial restraint is the order of the day. But if a law is passed by unanimous vote, is based on a power given to Congress with no strings attached, and is likely to protect black voting, that's prohibited unless the Supreme Court can be persuaded that Congress's approach is one they approve of. Judicial restraint is out the window. Welcome to the 21st century.

Is Rick Santorum the next Jeffrey Katzenberg?

Well, no, probably not. But like the DreamWorks mogul, Santorum will soon be the CEO of a movie studio. Over the weekend, failed Republican presidential candidate/former senator/gross-out internet obsession Santorum announced that he had been named CEO of EchoLight Studios, a Dallas-based, "family-friendly" film company catering to Christian audiences. "This is the right place and right time, and I've jumped in with both feet," Santorum said on Monday. "Dallas can become the Hollywood of the faith-and-family movie market...We're in a position with potential to transform the industry." (Santorum and a representative for EchoLight Studios did not respond to Mother Jones' requests for comment regarding his new gig.)

In the wake of revelations from intelligence contractor turned whistleblower Edward Snowden that the National Security Agency has collected massive amounts of phone and internet data on millions of Americans, the NSA posted a fact sheet online about what it was and wasn't doing. Titled "Section 702," the fact sheet outlined "Procedures for Targeting Certain Persons Outside the United States Other Than United States Persons" under the Foreign Intelligence Surveillance Act. It was meant to assuage fears that the NSA was breaking the law with its far-reaching PRISM operation.

But on Monday, two US senators called out the NSA for the contents of the fact sheet, saying that the agency was misleading the public about what it was really doing with the program. Then, on Tuesday, the fact sheet mysteriously disappeared from the NSA's website. (Instead, you can see it here.)

"We were disappointed to see that this fact sheet contains an inaccurate statement about how the section 702 authority has been interpreted by the U.S. government," Ron Wyden (D-Ore.) and Mark Udall (D-Colo.) wrote in an open letter to NSA's director, General Keith Alexander. "In our judgment this inaccuracy is significant, as it portrays protections for Americans' privacy as being significantly stronger than they actually are."

They didn't get specific, instead identifying the inaccuracy in a classified attachment to the letter. And they underscored that the NSA is facing a credibility problem. "As you have seen, when the NSA makes inaccurate statements about government surveillance and fails to correct the public record, it can decrease public confidence in the NSA's openness and its commitment to protecting Americans' constitutional rights," they wrote.

The letter also says the NSA is "somewhat misleading" people when it says that any "inadvertently acquired communication of or concerning a US person must be promptly destroyed if it is neither relevant to the authorized purpose nor evidence of a crime."

As of Tuesday afternoon, the URL for the NSA's posted fact sheet led to this:

The NSA didn't reply to questions from Mother Jones about when and why the document was taken off the site, or about the issues brought up by Wyden and Udall. Instead, it emailed this cryptic statement in response:

"Given the intense interest from the media, the public, and Congress, we believe the precision of the source document (the statute) is the best possible representation of applicable authorities," said NSA spokeswoman Judith Emmel.

UPDATE: The NSA responded to Wyden and Udall Tuesday, saying that "the fact sheet ... could have more precisely described the requirements for collection under Section 702 of the FISA Amendments Act" and pointing out several limitations to the law, all beginning with the phrase "may not intentionally" (full letter below). Considering that Wyden and Udall's basis for saying the NSA had made inaccurate statements in the original fact-sheet is classified, it's hard to know what the NSA is responding to in the June 25 letter.

Trevor Timm, a digital rights analyst with the Electronic Frontier Foundation, said the senators' letter points to the fundamental problem with excessive secrecy.

"This is a perfect example of why this secrecy is so bad for the country, that the NSA or [director of national intelligence] or executive branch can issue misleading statements or outright falsehoods and it's impossible for the American people to fact-check them," Timm said. "If it wasn't for Ron Wyden or Mark Udall, the NSA possibly could have kept this up forever."

Here's the full letter:

Wyden and Udall Letter to General Alexander on NSA's Section 702 Fact Sheet Inaccuracy



Here's how Gen. Alexander responded on Tuesday:



Conservative Activist Edward Blum

For the past twenty years, conservative operative Edward Blum has played a crucial behind-the-scenes role in America's most contentious court fights: He identifies people who will make compelling plaintiffs; pairs them with lawyers who are willing to sue to upend affirmative action, voting-rights laws, and other race-conscious policies; and raises money to help cover the legal fees.

As Mother Jones reported last year, Blum, a 61-year-old former stockbroker, was deeply involved in several of the most controversial cases before the Supreme Court this term. He engineered Fisher v. University of Texas, a case challenging affirmative action in college admissions that the Supreme Court sent back to a lower court for further consideration on Monday. But the greatest victory in Blum's long career came Tuesday morning, when the Supreme Court used Shelby County v. Holder, a case Blum helped launch and fund, to strike down Section 4 of the 1965 Voting Rights Act. After decades in the legal wilderness, it looks like Blum finally has his big win.

Blum's decades-long crusade started after he ran for Congress in Houston. Blum lost, but was later able to prove the district he ran in had been gerrymandered along racial lines. Since then, he's launched over a dozen cases, building recruiting websites, cold-calling local officials, and convincing his picks to become the face for ending race-based protections. "The first hurdle is to seek out plaintiffs who are of, in my opinion, the right philosophy, and have no ax to grind. Sensitive to the fact that there are individuals and organizations who believe that these laws should stay in place," Blum told NBC News. "You cannot seek out people who are bigots or small-minded." A onetime Democrat converted by Reagan and Commentary magazine, Blum has argued that his challenges are efforts to promote "colorblind" policies, asserting that the current laws are unfair to whites and stigmatize minorities.

Through his one-man legal defense fund, the Project on Fair Representation, Blum has corralled financial backing to keep mustering judicial challenges from conservative allies, running funds through his nonprofit, Donors Trust. The tactic at which he excels, finding plaintiffs that can carry an issue to the highest court, was pioneered by groups like the NAACP, and has been long used by liberals and conservatives alike.

Tuesday's Supreme Court decision struck down the formula that determines which parts of the country deserve extra federal scrutiny of their voting laws. But if Blum's his past record is any indication, this victory will only fuel his fire. As Al Vera—the plaintiff in Blum's 1996 case arguing that race-based gerrymandering violated the Equal Protection Clause of the 14th Amendmentonce said, Blum is "like a bulldog once he attaches onto an issue he believes in." 

There was lots of economic data released Tuesday. We'll start with the good news:

The 2008 bailout has largely been repaid: The US government has recovered most of the bailout funds it disbursed to financial institutions and auto companies under the Troubled Asset Relief Program (TARP) launched in 2008. The Treasury department has just unveiled a new interactive that tracks those funds so you can see for yourself.

The Treasury has recovered all of the $68 billion it disbursed since 2008 to AIG (the giant insurance corporation that insured a bunch of top-rated mortgage-backed securities that turned out to be junk):

The government has regained almost all of the $245 billion injected into banks since 2008:

And taxpayers have gotten back 62 percent of the $80 billion in bailout funds distributed to GM and Chrysler:

Consumer confidence is up: Despite the fact that Wall Street is freaked out about the Federal Reserve lightening up on its stimulus efforts, consumer confidence—the measure that gives investors a sense of how freely Americans will spend in coming months—rose for the third month in a row, far beyond what was forecasted. Economists have credited much of the increase to rising house prices; new numbers released Tuesday showed that April home prices were up 12 percent over last year.

But not everyone gets to be part of the recovery:  Even though unemployment ticked downwards last month, the Wall Street Journal reported Tuesday that "there are signs the job market is splitting into two" as the long-term jobless are being left in the dust:

Close to 25% of the short-term unemployed—those out of work for six months or less—find jobs each month, a figure that has shown steady improvement since the recession, though it remains below its long-term average of 30%.

The nation's 4.4 million long-term unemployed haven't seen similar gains. Only about 10% of them find jobs each month, a number that has hardly budged in the past two years. In a recent experiment, economist Rand Ghayad sent out mock résumés for about 600 job openings; those that showed six months or more of unemployment generated far lower response rates from employers, regardless of the other skills or experience.

And a final downer: the current share of the population that is employed is still far below what it was at the before the recession.

President Obama hasn't given his big climate speech yet, but the bullet points have been released and I think it's fair to say that everyone thinks the biggest deal is his executive order telling the EPA to establish carbon pollution standards for both new and existing power plants.

I'll wait for more details to comment further, except for one thing: one of the key issues here is what Obama's real goal is. Does he really want the EPA to create new regs? Or does he want to use the threat of new regs as leverage to get Congress to pass a carbon tax of some kind? Probably the former, but you never know. Back when the cap-and-trade bill was being debated in 2010, one reason for guarded optimism was the fact that even Republicans might prefer it to the alternative, which was crude EPA regulation of power plants. In the end, that turned out not to be enough. Republicans apparently weren't convinced that the EPA would really go through with tough new rules.

But now that changes. If Obama and the EPA are serious, then utility operators are going to get increasingly nervous as the rules work their way through the system and start to look like they're really going to happen. At that point, will Republicans relent and agree to a bill that sets a carbon tax (or cap-and-trade limits) in return for a congressional halt on new EPA regs?

No one knows, of course. But to me, this is the key issue burbling under the surface of Obama's announcement today. Are his new regulations just what they seem, or are they really a bargaining chip for a carbon tax? Stay tuned.

Keith Humphreys wants to know what's up with tennis and all the different surfaces it's played on:

Think how shocked we would be if a professional basketball team announced that they were changing the surface of their floor from wood to cement and were also going to raise their rim by six inches. We expect consistency in the conditions of basketball, ice hockey and bowling, but not tennis.

Is there a sport that allows as much variation in the game under the same name? The only one I could think of is baseball, in which a stadium can have artificial turf versus grass and the outfield fences can be arranged in a variety of ways.

Are there other examples of sports that are really multiple, different versions of a game? And are any of them as variable as is tennis?

I wouldn't put baseball (or football or soccer or cricket) in the same league. Changes from grass to artificial turf, along with the modest differences in the size of the playing field, don't make nearly as much difference as tennis surfaces. Clay and grass are practically different games in the tennis world.

In theory, a sport like golf or bicycle racing might qualify, since the field of play is wildly different from week to week. In practice, though, it doesn't really seem to make that much difference. Some golf courses favor long hitters, just as some bicycle races favor climbers, but the results seem to be much less systematic than tennis.

However, I think the surface difference in tennis is starting to decline. In the 90s, when serve-and-volley players still roamed the earth, Wimbledon and the French Open really were like two different sports. One set of folks won on grass, the other set won on clay. Pete Sampras, the best player of his era and one of the best of all time, never even made the finals of the French and only got to the semis once. Conversely, Gustavo Kuerten, who won the French three times, only made it past the third round of Wimbledon once.

But as playing styles converge, this is becoming less of an issue. Before long, it's likely that virtually everyone on the tour will be playing the same basic power game: big looping forehand and killer two-handed backhand, with everyone pinned behind the baseline about 90 percent of the time. When everyone plays the same game, they're all at the same advantage (or disadvantage) on all surfaces. That's why Roger Federer routinely gets to the finals of the French and even won once (a year when Rafael Nadal lost early) and why Nadal has done the same at Wimbledon. Surface is less of a factor than it used to be, and this trend will almost certainly continue.

Which, in a way, makes the argument for standardizing surfaces stronger than ever. It'll never happen—not soon, anyway—but the sport would probably be better off if grass and clay disappeared and tournaments all moved to a moderately fast artificial surface of the type used at the U.S. and Australian Opens. Those are always my favorite tournaments, because anyone can win and they don't disqualify a big chunk of the field right from the get-go.

As near as I can tell, I'm one of the few who loved watching serve-and-volley tennis on grass, especially when there was a contrast of playing styles (Borg-McEnroe, Becker-Lendl, Sampras-Agassi). But that's pretty much gone the way of the dodo, and with it the reason for playing on grass at all. But it was nice while it lasted.

(And why am I writing about this? I guess I'm just trying to take my mind off the Supreme Court's Voting Rights Act decision. Even though I expected it, I'm feeling pretty morose about the whole thing.)

UPDATE 12:30 p.m.: Planned Parenthood Federation of America President (and native Texan) Cecile Richards announced via Twitter that the abortion bill did not pass.

UPDATE 11:50 p.m.: After State Sen. Wendy Davis (D-Fort Worth) led a captivating all-day filibuster, the Senate concluded in chaos. The session was, by law, supposed to end at midnight. It appeared likely to finish without a vote, until Republican leadership forced one in the closing minutes, over the chants of protesters. The final vote, however, did not come until just after midnight local time–when the session was supposed to be over. Not long after, the legislature appeared to change the time stamps on the vote on its website. Senate Democrats and Republicans were still hashing out what exactly went down several hours later. Check out the Texas Tribune for up-to-the-minute coverage.

Texas Democrats launched a 13-hour filibuster in the state Senate on Tuesday to block a GOP-backed bill that would dramatically limit abortion access in the Lone Star State. The bill bans abortions after 20 weeks gestation, even in cases of rape and incest, and creates strict new building codes for abortion clinics that threaten to shut down nearly all of the state's providers.

The bill passed through the House on Monday despite a 12-hour delay by Democrats and a citizens' filibuster that brought hundreds of protesters to the State Capitol in Austin. "I saw the future of Texas last night, and it is not apathetic," Heather Busby, executive director of NARAL Pro-Choice Texas, told The Huffington Post.  "It is ready for a change."

State Sen. Glenn Hegar (R-Katy) introduced Senate Bill 5 in a special 30-day session that Texas Governor Rick Perry called, in which only a simple majority is needed to send the bill to the floor instead of the usual two-thirds majority. Today is the last day of the session, so filibustering past midnight will kill the legislation, unless Perry decides to call another session. The bill caps abortion access at 20 weeks, even though the 1973 Supreme Court ruling Roe v. Wade allows abortions up until the point that a fetus can live outside the womb (which is usually considered to be 24 weeks gestation). A dozen other states have already passed laws banning abortion after 20 weeks, but the laws have been struck down as unconstitutional in Arizona and Idaho.

The bill also requires doctors who perform abortions to have admitting privileges at a hospital within 30 miles of the clinic. Finally, the bill requires clinics to comply with building codes designed for out-patient surgery centers found in hospitals, a provision that the bill's opponents say would force most of the state's remaining abortion providers to close. Only five of the state's 42 clinics are expected to be able to comply with the new standards—in a state of 26 million people where women already travel an average of 43 miles to get an abortion. Texas clinics have already taken a heavy financial hit in the last two years, as legislators slashed state funds and refused federal Medicaid money in an attempt to shut down Planned Parenthood providers.

Last Thursday, more than 700 protesters, many of them women who had traveled from other parts of Texas, showed up to protest the bill and waited in line to testify for hours. When the chairman tried to end the public testimony, this happened:

State Sen. Wendy Davis (D-Fort Worth) is leading Tuesday's filibuster (in pink sneakers) and is expected to hold the floor and speak—without bathroom breaks—until the Senate adjourns at midnight. This isn't her first rodeo: In 2011, Davis temporarily stalled a plan from Governor Perry that would have slashed $5.4 billion from public schools, turning her into something of an overnight celebrity. That filibuster, however, was only a little over an hour. According to the Texas Observer, Texas Democrats knew that the abortion bill would pass through the House, but they delayed it Sunday night so that Democrats in the Senate would have time to launch a filibuster.

Senate rules require a 24-hour waiting period before the Senate can debate the bill. So House Democrats hoped to delay SB 5 long enough to give Senate Democrats a chance to filibuster the bill

"There's an assault on women in this state and this legislation is a prime example of that," the Senate's Democratic leader, Kirk Watson (D-Austin) told The Star-Telegram. "It's important that a woman [like Davis] who's the mother of two daughters will be the one standing. We will all be there providing assistance and help."

The protesters plan to continue to camp out in the capitol building throughout the filibuster.

Yesterday, in a post about the IRS targeting progressive groups for extra scrutiny, I mentioned in passing that they were also targeting open source software groups. What's up with that? A reader emails with the answer:

I noticed your curiosity about open source software organizations being called out for extra IRS scrutiny in the recently released documents. This is a story that's been developing for a few years. In short, the IRS is concerned that some of these organizations exist simply to market companies' software, and perhaps the associated services sold alongside them. The IRS suspects that such organizations would be a better fit for 501(c)6 classification, if anything.

I worked in the field for several years, and while it'd be pretty easy to convince me that some of these organizations deserve closer scrutiny, the IRS' "screening" has been wildly disproportionate. Groups that are unquestionably above board have been in limbo for years, unable to start fundraising in earnest, because the IRS refuses to finally approve or reject their application for 501(c)3 status.

Fundamentally, it's the same story that the Tea Party organizations have faced: the IRS has a reasonable question about the legitimacy of some of these groups, but they lack the resources to actually resolve those questions, so instead they just cast a massive net and catch everyone. The fact that this is hitting something as nonpartisan as software organizations should really drive home the point that this is all driven by structural problems at the IRS, rather than political scare tactics.

So there you go. I just thought some of the open source geeks in the crowd might be interested in this.

UPDATE: Another reader emails in with a bit of history:

A bunch of the case law on various 501(c)s specifically has to do with the old computer user groups of the 70s and 80s. You know, everyone who has an IBM mainframe in Missouri form an association to share ideas and promote tools and software to other people who have an IBM mainframe in Missouri, etc. Does such a group exist specifically to promote IBM and its products? Is it a trade association? Is it a general social organization? etc. I don't know how much institutional memory exists at the IRS, but it would not surprise me if this were a consideration in why these groups are getting (mostly unwarranted) extra scrutiny.

Fascinating! Who knew I had so many readers with expertise in this esoteric field?

Justice Ruth Bader Ginsburg wrote a fiery dissent to the Supreme Court's 5-4 decision Tuesday striking down the part of the 1965 Voting Rights Act that determines which cities, counties, and states need to seek approval from the Department of Justice before changing their voting laws. The provision was designed to focus attention on areas with a history of discrimination. "Hubris is a fit word for today's demolition of the VRA," Ginsburg wrote.

Here are five key excerpts from her dissent:

  • "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."

  • "Demand for a record of violations equivalent to the one earlier made would expose Congress to a catch-22. If the statute was working, there would be less evidence of discrimination, so opponents might argue that Congress should not be allowed to renew the statute. In contrast, if the statute was not working, there would be plenty of evidence of discrimination, but scant reason to renew a failed regulatory regime."

  • "Just as buildings in California have a greater need to be earthquake­ proofed, places where there is greater racial polarization in voting have a greater need for prophylactic measures to prevent purposeful race discrimination."

  • "Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court's opinion today. The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story. See supra, at 18–19. Without even identifying a standard of review, the Court dismissively brushes off arguments based on "data from the record," and declines to enter the "debat[e about] what [the] record shows"…One would expect more from an opinion striking at the heart of the Nation's signal piece of civil-rights legislation."

  • "Given a record replete with examples of denial or abridgment of a paramount federal right, the Court should have left the matter where it belongs: in Congress’ bailiwick."

Ginsburg's dissent also rattled off these eight examples of race-based voter discrimination in recent history:

  • "In 1995, Mississippi sought to reenact a dual voter registration system, 'which was initially enacted in 1892 to disenfranchise Black voters,' and for that reason was struck down by a federal court in 1987."

  • "Following the 2000 Census, the City of Albany, Georgia, proposed a redistricting plan that DOJ found to be 'designed with the purpose to limit and retrogress the increased black voting strength…in the city as a whole.'"

  • "In 2001, the mayor and all-white five-member Board of Aldermen of Kilmichael, Mississippi, abruptly canceled the town's election after 'an unprecedented number' of AfricanAmerican candidates announced they were running for office. DOJ required an election, and the town elected its first black mayor and three black aldermen."

  • "In 2006, the court found that Texas' attempt to redraw a congressional district to reduce the strength of Latino voters bore 'the mark of intentional discrimination that could give rise to an equal protection violation,' and ordered the district redrawn in compliance with the VRA…In response, Texas sought to undermine this Court's order by curtailing early voting in the district, but was blocked by an action to enforce the §5 pre-clearance requirement."

  • "In 2003, after African-Americans won a majority of the seats on the school board for the first time in history, Charleston County, South Carolina, proposed an at-large voting mechanism for the board. The proposal, made without consulting any of the African-American members of the school board, was found to be an 'exact replica' of an earlier voting scheme that, a federal court had determined, violated the VRA…DOJ invoked §5 to block the proposal."

  • "In 1993, the City of Millen, Georgia, proposed to delay the election in a majority-black district by two years, leaving that district without representation on the city council while the neighboring majority white district would have three representatives…DOJ blocked the proposal. The county then sought to move a polling place from a predominantly black neighborhood in the city to an inaccessible location in a predominantly white neighborhood outside city limits."

  • "In 2004, Waller County, Texas, threatened to prosecute two black students after they announced their intention to run for office. The county then attempted to reduce the avail ability of early voting in that election at polling places near a historically black university."

  • "In 1990, Dallas County, Alabama, whose county seat is the City of Selma, sought to purge its voter rolls of many black voters. DOJ rejected the purge as discriminatory, noting that it would have disqualified many citizens from voting 'simply because they failed to pick up or return a voter update form, when there was no valid requirement that they do so.'"

Read the full dissent here.

This article has been revised.