The Voting Rights Act of 1965 is one of the landmarks of the Civil Rights Era, enacted to end voter suppression tactics that had disenfranchised African-Americans throughout the South for more than 80 years.
But in the case of Shelby County v. Holder, now before the U.S. Supreme Court, today’s racists are attempting to gut the law through dishonest arguments. While we should expect Supreme Court justices to decide cases based on the facts and law in a fair-minded way, the decision will unfortunately depend on whether enough justices have the integrity to reject racism and dishonesty.
The heart of the Voting Rights Act is Section 5, under which any changes in voting laws or procedures in all or parts of 16 states with histories of racist voter discrimination, mostly in the South, must be cleared in advance by the U.S. Justice Department. In 2006, Congress reauthorized Section 5 for another 25 years.
States and localities covered by Section 5 can petition for exemption if they can prove they no longer practice racial discrimation in voting, as has been successfully done by 31 cities and counties in Virginia. But officials in Shelby County, AL, south of Birmingham, with a population that is 11 percent African-American, instead of petitioning for exemption, sued over Section 5, claiming that federal monitoring was overly burdensome and unwarranted.
Oral arguments were held before the Supreme Court last week, with the four liberal justices ready to uphold Section 5 in its entirety. Justice Sonia Sotomayor asked why the court would rule “in favor of the county that is the epitome” of why the Voting Rights Act was passed in the first place. Justice Elena Kagan pointed out that while Alabama’s population is 28 percent African-American, it has no African-American statewide elected officials, and that Alabama has had the highest number of successful lawsuits per million residents under Section 2 of the Voting Rights Act, which bans voter qualifications that deny or abridge votimg rights due to race or color.
The five more conservative justices were another story. As I previously pointed out in Showing their true colors, it’s been said that if you scratch a conservative, nine times out of ten you will find a racist under the surface. So it is with Justice Antonin Scalia.
Referring to the 2006 reauthorization of the Voting Rights Act, Scalia said, "I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.
"I don't think there is anything to be gained by any senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless a court can say it does not comport with the Constitution."
Here Scalia combined a racist attitude and contempt for democracy with dishonesty. We are dealing here with protecting the right to vote, which is fundamental to American democracy, not a “racial entitlement,” and the Voting Rights Act has a constitutional basis in the 15th Amendment, which states, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” Racists such as Scalia like to ignore the 15th Amendment, as was done in the bad old days of the Jim Crow South, which made enacting the Voting Rights Act a necessity.
Justice Anthony Kennedy raised federalism concerns, claiming that federal oversight under Section 5 undermines state sovereignty. This argument is nonsense, because the 15th Amendment clearly applies to the states. There is in fact no valid constitutional argument against Section 5.
Chief Justice John Roberts also questioned federal intrusion while dishonestly claiming that, "Things have changed in the South.” Changing the laws does not change racist attitudes. Given all the racist and un-American voter suppression tactics that have arisen in recent years, as I described in It’s time to ban voter suppression, this was a blatant lie. Indeed, under Section 5, federal judges refused to allow five Florida counties to cut early voting hours and threw out a Texas photo ID law due to its effect on poor and minority voters.
If anything, the Voting Rights Act needs to be strengthened to ban all voter suppression tactics, with nationwide application. Whether all five conservatives are racist enough to gut Section 5 in whole or in part remains to be seen, but we should remember that there were racist Supreme Court majorities in the past that decided such cases as Plessy v. Ferguson in 1896 and Dred Scott v. Sanford in 1857. A ruling in this case is expected by June.