Sahil Kapur

Sahil Kapur is TPM's senior congressional reporter and Supreme Court correspondent. His articles have been published in the Huffington Post, The Guardian and The New Republic. Email him at sahil@talkingpointsmemo.com and follow him on Twitter at @sahilkapur.

Articles by Sahil

A centerpiece of the monumental Voting Rights Act is in jeopardy Wednesday as it heads before the Supreme Court for oral argument.

At issue is the constitutionality of Section 5 of the 1965 law, which requires state and local governments in 16 states to receive preclearance from the Justice Department or a federal court before making any changes to laws that affect voting. The purpose was to proactively snuff out voter discrimination where it's most likely to emanate, but conservatives argue that it has worked so well it now discriminates against the mostly southern regions covered.

Although Congress has repeatedly reauthorized and the Supreme Court has repeatedly upheld it, Section 5 faces a clear danger now as the Roberts Court's five conservative-leaning justices signaled their misgivings with it in a 2009 case involving a Texas jurisdiction's right to "bail out" of the preclearance requirement.

In that 2009 case, the Court refrained from ruling on the underlying constitutional question, but during oral arguments and in eventual written opinions, the five Republican-appointed jurists built their case against that portion of the law -- which is why supporters are nervous. Here are some excerpts from that case:

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After nearly a year of resistance that has damaged them politically with women voters, House Republicans have found a clever way to back down on the reauthorization of an expanded Violence Against Women Act, aides confirmed to TPM late Tuesday.

The original plan was for the Republican majority in the House to pass its version of the Violence Against Women Act reauthorization and then go to conference conference committee with the Senate. The Senate has already overwhelmingly passed a more aggressive bill, with protections for LGBT, Native American and undocumented women that have been at the heart of the dispute with House Republicans.

But all that changed Tuesday night. The Rules Committee instead sent the House GOP's version of the Violence Against Women Act to the floor with a key caveat: if that legislation fails, then the Senate-passed version will get an up-or-down vote.

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Chris Christie of New Jersey on Tuesday become the latest Republican governor to support the Medicaid expansion under Obamacare.

"It's simple. We are putting people first," Christie said in a speech before the legislature unveiling his budget. "Which is why, after considerable discussion and research, I have decided to participate in the Medicaid expansion under the Affordable Care Act."

"Let me be clear, refusing these federal dollars does not mean that they won't be spent," he said. "It just means that they will be used to expand health care access in New York, Connecticut, Ohio or somewhere else. ... In fact, [New Jersey] taxpayers will save approximately $227 million in fiscal year 2014 alone."

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A new effort by a large group of influential Republican luminaries to champion same sex marriage represents a breakthrough for the party and the cause.

At least 75 current and former Republican officials and intellectuals have signed on to a draft legal brief calling on the Supreme Court to overturn California's Proposition 8 and similar laws prohibiting gay marriage, according to the New York Times.

The signatories to the brief include noted Republicans such as Reps. Ilena Ros-Lehtinen (FL) and Richard Hanna (NY), senior George W. Bush administration officials Carlos Gutierrez and James Comey, former Utah Gov. Jon Huntsman, Reagan White House budget director David Stockman and former California gubernatorial nominee Meg Whitman, among others. The Times reports that the amicus brief will be filed with the Court this week.

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The White House said Tuesday that it "cannot support" the House version of the Violence Against Women Act and called on GOP leaders to allow a vote on the bipartisan Senate-passed reauthorization. But it stopped short of a veto threat.

The full statement from the Office of Management and Budget:

The Administration is pleased that the House of Representatives has committed to reauthorizing the landmark Violence Against Women Act (VAWA), but the Administration cannot support the House substitute to S. 47 as currently drafted.

The bill omits crucial provisions that would address the high rates of violence experienced by young women on college campuses.  For example, the Senate bill requires colleges and universities to provide information to students about dating violence and sexual assault and to develop policies that improve reporting, investigation, and services for victims of these crimes.  Every parent who has sent a child off to college knows the importance of these commonsense measures to keep young people safe.

The House bill also would inhibit the successful prosecution by tribal authorities of non-Indian perpetrators of domestic violence.  The proposal as currently drafted would continue to allow for disparate treatment of Indian and non-Indian offenders and fails to adequately address serious criminal violations of domestic violence in Tribal communities.  The Administration urges the House to adopt the Senate language recognizing Tribal criminal jurisdiction in domestic violence cases.

The Administration is disappointed that the House bill does not require covered housing programs to implement emergency transfer plans for victims of domestic violence and sexual assault and does not explicitly protect LGBT victims of crime from discrimination when they seek services or protections funded by VAWA.  Unfortunately, the House measure also does not reauthorize the Trafficking Victims Protection Act, which provides critical protections and services for victims of modern day slavery.

The Administration urges the House to fulfill its commitment to reauthorize VAWA by scheduling a vote on the bipartisan version of S. 47 that overwhelmingly passed the Senate and was championed by both Democrats and Republicans.

House Minority Leader Nancy Pelosi (D-CA) told reporters Tuesday that "sequestration equals employment" and labeled the House GOP leadership "irresponsible" for "avoidance behavior" on addressing the sequester.

She addressed Speaker John Boehner's (R-OH) contention Tuesday that the Senate get up off their "ass" and act because House Republicans voted twice to avoid the sequester last year.

"The Republican leadership says we passed bills last year," Pelosi said. "I remind them, that was a different Congress. That doesn't count in this Congress. The Republican leadership says let the Senate begin. I remind them that the Constitution says that appropriations and revenue bills must begin in the House."

"I don't think they're even kicking the can down the road," she said. "I think they're nudging the potato across the table with their nose."

When the Supreme Court hears oral arguments Wednesday on the Voting Rights Act, opponents will argue that a centerpiece of the law aimed at letting the federal government proactively thwart attempts at voter discrimination has outlived its validity.

"The only reason Section 5 was originally justified and upheld by the courts was because of Jim Crow -- the unusual circumstances at the time in terms of voter disenfranchisement," Ilya Shapiro, the editor-in-chief of the Cato Supreme Court Review who filed an amicus brief in the case, told TPM. "I don't think there's a way to justify Section 5 anymore."

Section 5 of the Voting Rights Act requires state and local governments across 16 states -- mostly in the South -- to seek preclearance from the Justice Department or a federal court before making any changes to their laws which affect voting. Shapiro said the point of the lawsuit is that residents in each of the covered jurisdictions are being treated unfairly.

"There's a tremendous imposition of paperwork and litigation costs on these jurisdictions to making voting changes -- even miniscule things like moving a polling place from a park to a school," he said, pointing out that the vast majority of proposed changes get approved. "All this would say is that you would no longer have a presumption that everything that states in the covered areas do is unconstitutional."

The case carries important implications, not merely for voting rights in the mostly southern regions targeted by Section 5 but also for the conservative legal movement's longstanding efforts to limit the scope of federal power.

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Republican Gov. Rick Scott's announcement last week that he supports the Medicaid expansion in Florida may not be enough to seal the deal. That's because it still needs budget approval from the overwhelmingly Republican legislature, which has majorities of 28-12 in the Senate and 74-46 in the House, and is wary of going along with one of the key provisions of "Obamacare."

Florida's House Speaker Will Weatherford (R) told National Review he's "personally skeptical that this inflexible law will improve the quality of health care in our state and [e]nsure our long-term financial stability." He said the legislature, not the governor, will have the final word.

Democrats are taking the threat seriously.

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Senate Judiciary Chairman Patrick Leahy (D-VT), the author of the Senate-passed Violence Against Women Act reauthorization, on Monday accused House Republicans of prioritizing "partisan politics" over protecting vulnerable populations who suffer from domestic violence.

"In contrast to our actions in the Senate, House leadership is poised to once again take a different route," Leahy said on the floor. "Tomorrow, they are scheduled to substitute our bipartisan bill with a partisan alternative that leaves vulnerable victims without protection and mires our efforts in partisan politics, which will delay getting help to victims.  I hope they reconsider this ill-conceived approach."

He continued:

The House substitute drastically weakens protections for vulnerable victims.  It eliminates key protections intended to keep college students safer.  It fails to include meaningful language to ensure that LGBT victims can get the same help as any other victims.  For immigrant victims, the House substitute actually adds new hurdles that would make it harder for victims to help law enforcement and receive assistance.  It adds new burdens and loopholes to protections for Native women who experience domestic violence at horrific rates.  The House substitute would continue to allow the most aggressive abusers of native women to escape justice since the most that could be charged in tribal courts would a misdemeanor.  That is not justice for the most vulnerable victims of domestic violence.

I stand ready to work with House leadership and have reached out to Speaker Boehner several times.  I have not heard from House leadership once this year.

House Republicans intend to pass their alternate VAWA this week.


Once again, House Republicans are in a predicament on the Violence Against Women Act. The legislation, aimed at combating domestic abuse, is political dynamite with women voters, and for that reason GOP leaders desperately want the issue off the table. But they can't figure out how to make that happen now any more than they could last year, during an election.

House GOP leaders find themselves unable to appease simultaneously House conservatives and advocates against domestic violence. The two factions are at an impasse on new protections for gays, illegal immigrants and Native American women who suffer from domestic abuse. Anything that placates one side seems to aggravate the other. The legislation House Republicans unveiled Friday came after weeks of trying to resolve that tension, but fell short of the goal.

"Unfortunately, the National Task Force must oppose the House proposed VAWA legislation," said the National Task Force to End Sexual and Domestic Violence Against Women, after the bill was released. "This legislation lacks necessary protections for victims of violence and rolls back current law. NTF supports efforts to move the House legislation closer to the inclusive, bipartisan Senate-passed bill."

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