Is the U.S. Supreme Court ready to kill the Voting Rights Act? If Justice Antonin Scalia’s recent comments are any indication, we’re in for some trouble.
On Monday at the University of California Washington Center, the high court judge said that the law an “embedded” form of “racial preferment.” According to Scalia’s interpretation, the Voting Rights Act was enacted as an emergency measure, but now amounts to a federal racial preference system for black people that discriminates against whites.
“Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes,” Scalia said. “Even the name of it is wonderful, the Voting Rights Act. Who’s going to vote against that?”
Disingenuous and simply wrong
The justice also criticized attempts to expand the number of minority groups protected by the federal government, noting that child abusers are a minority, but that doesn’t mean they deserve protection.
Scalia’s comments are historically and intellectually disingenuous and simply wrong. And his words are as repugnant as the circumstances that required the Voting Rights Act in the first place.
The Voting Rights Act of 1965 was enacted by Congress to outlaw discriminatory practices used to deny African-Americans their right to vote. It mirrors the language of the Fifteenth Amendment—which forbids federal and state denial of the right to vote based on “race, color or previous condition of servitude”—though the laws on the books were insufficient to overcome states intent on keeping black people away from the polls, out of power and out of luck.
The Voting Rights Act outlaws literacy tests, and also gives the Attorney General the power to challenge the use of poll taxes. Passed during the height of the civil rights movement, the law and its predecessor, the Civil Rights Act of 1964, were responses to the wave of domestic terrorism in the South against activists who sought the right to vote and equal protection under the law.
The heart of the Voting Rights Act is at stake
At issue is Section 5, the heart of the Voting Rights Act, which requires certain states and localities, mostly in the South and Southwest, to obtain permission from the federal government before changing their election procedures.
In Shelby County v. Holder, a case currently before the Supreme Court, Shelby County, the mostly-white suburb of Birmingham, Alabama, claims Congress exceeded its constitutional authority when it reauthorized Section 5 in 2006 for 25 years. The act was reauthorized with almost unanimous bipartisan support. Signing the re-authorization, then-President Bush said the law was still needed.
“I don’t know what they’re thinking exactly,” said Justice Stephen G. Breyer of Congressional re-authorization of the Act. “But it seems to me one might reasonably think this: It’s an old disease, it’s gotten a lot better, a lot better, but it’s still there.”
Yet section 5 is an abomination to conservatives who view the law as a federal intrusion on states’ rights, which, translated, means the right of states to treat their blacks the way they please. Let us not forget the inane tests given to blacks in the Jim Crow days. Black voters were asked questions as insulting as “How many bubbles in a bar of soap?” Or the local thugs—whether the police or the Klan—simply bashed in the heads of those Negroes who attempted to register to vote.
Modern-day Jim Crow
Today’s conservative war on voting rights is led by an overwhelmingly white, Southern-dominant Republican Party and their well-funded operatives, enablers and patrons such as the Koch brothers. And this war, like the Jim Crow voter suppression and intimidation techniques, is designed to block the vote of African-Americans, Latinos and others.
Voter disenfranchisement was a problem back in the day, but it is still a big issue now. The 20th Century version of Jim Crow comes in the form of voter ID laws, laws denying the vote to people with a criminal background, regulations that restrict early voting, and GOP redistricting plans that are once again segregating the former Confederacy.
“This statute is in part about our march through history to keep promises that our Constitution says for too long were unmet,” said Debo P. Adegbile, special counsel of the NAACP Legal Defense and Educational Fund, which has intervened in the Supreme Court case. Adegbile argued before the court that Section 5, the “pre-clearance” section, is crucial in defending the rights of voters of color in areas of the U.S. with the worst record of voter discrimination.
“Without Section 5, the very purpose of the Voting Rights Act will be demolished,” said Rev. Al Sharpton of the National Action Network and MSNBC. “It is the most detrimental blowback against our fundamental civil rights as citizens. After individuals like Martin Luther King Jr. and countless unnamed heroes of the civil rights era gave their lives for our liberties, we cannot allow this to take place.”
Arguing that racial discrimination is nonexistent
Meanwhile, conservatives also argue that the problem the Voting Rights Act was designed to address—racial discrimination— no longer exists. Chief Justice John Roberts has a long history of opposing the law, and did his best to try to weaken the law in the Reagan administration.
“Things have changed in the South,” Roberts said in 2009, claiming the Voting Rights Act “differentiates between the states in ways that are in tension with our fundamental tradition of equal sovereignty among the states.” The justice added that such distinctions “may no longer be justified by current conditions.”
Similarly, the other conservatives on the court, including Justices Antonin Scalia, Samuel Alito and Clarence Thomas, have expressed their opposition to the law. Justice Anthony Kennedy will provide the swing vote in Shelby County.
“Some parts of the South have changed. Your county pretty much hasn’t,” said Justice Sonia Sotomayor to the counsel representing Shelby County. “You may be the wrong party bringing this.”
Six of the nine states covered by Section 5 have passed voter ID and other voting restrictions in recent years, as opposed to only one-third of other states. With the opponents of the Voting Rights Act invoking states’ rights and the end of racism, their voter suppression tactics are the best argument in favor of maintaining the law.
A right that people died for
Meanwhile, as Americans preach to the world about the need for democracy, the rule of law and fair and open elections, we treat the franchise as something to use sparingly, for the privileged few. The U.S. Constitution mentions the right to vote five times.
This right has expanded over time beyond wealthy, white landowning men to include everyone. People were maimed and martyred in the streets while fighting for that right. Conservatives, if they have their way, will reverse the trend and take us back to the future.
The Voting Rights Act protects the minority, but it really protects us all.
Sadly, it seems that in the land of the free, you can have all the guns you want, but you’re out of luck if you want to use the ballot as a weapon instead. Shame on us, and shame on the court if they kill the Voting Rights Act.
Follow David A. Love on Twitter at @davidalove