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Posted by on Feb 27, 2013 in Featured, Law | 7 comments

Voting Rights Act: Poised to be Gutted by the Supreme Court?

Wolverton, Cagle Cartoon

Is the Voting Rights Act poised to be gutted by a Supreme Court where the conservatives still wield considerable clout? It sounds that way:

Conservative justices on the Supreme Court expressed skepticism Wednesday about whether the federal government should still be requiring preclearance of voting system changes in certain places with a history of racial discrimination in elections.

Justice Antonin Scalia suggested that the continuation of Section 5 of the Voting Rights Act represented the “perpetuation of racial entitlement,” saying that lawmakers had only voted to renew the act in 2006 because there wasn’t anything to be gained politically from voting against it.

“Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes,” Scalia said during oral argument in Shelby County v. Holder.

“Even the name of it is wonderful, the Voting Rights Act. Who’s going to vote against that?” Scalia wondered. He said that the Voting Rights Act had effectively created “black districts by law.”

But liberal justices argued forcefully that Section 5’s preclearance requirement was still necessary and had proved to be an effective way for the Justice Department and the courts to stop discrimination at the polling place. Justice Elena Kagan said the formula “seems to be working pretty well.”

Justice Sonya Sotomayor said that Shelby County, Ala., probably wasn’t the right part of the country to be challenging a key provision of the Voting Rights Act.

“Some parts of the South have changed. Your county pretty much hasn’t,” said Sotomayor. “You may be the wrong party bringing this.”

“Under any formula that Congress could devise, it would still capture Alabama,” added Kagan.

Even the court’s traditional “swing vote” seems poised to swing against the act:

Justice Anthony Kennedy, often the swing vote between the Supreme Court’s liberal and conservative blocs, didn’t offer progressives much hope that he would find Section 5 constitutional, saying that while the provision was necessary in 1965, this was 2013.

“The Marshall Plan was very good, too — the Northwest Ordinance, the Morrill Act — but times change,” Kennedy said.

If Congress wants to “single out” states, he said, the legislators should “do it by name.” He repeatedly described Congress as having “reverse engineered” the formula originally used in the Voting Rights Act to ensure that certain states would be covered by Section 5. Lawmakers didn’t take the “time and energy” to come up with a proper formula for which states should be subject to preclearance, said Kennedy.

The likelihood: part of the Voting Rights Act gets scrapped, some states and partisans take advantage of the change — and a new movement begins that may last some years to put in place new measures to ensure a court ruling doesn’t set back the cause of protecting minority voting rights several decades.

Here’s how The Christian Science Monitor put it into perspective yesterday:

Voting Rights Act: Is major portion outdated? Supreme Court to hear arguments. (via The Christian Science Monitor)

It is recognized as the most powerful and effective civil rights law in American history. So why is the US Supreme Court being asked to declare a major portion of the landmark Voting Rights Act of 1965 unconstitutional? On Wednesday, the high court is set to take up a legal challenge filed on behalf…

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  • That it’s an old law doesn’t make it unconstitutional.

    That it could have a better formula doesn’t make the one it has unconstitutional [the constitution doesn’t require best laws or best formulas].

    That there is no political advantage to voting against it doesn’t make it unconstitutional.

    That five members of the U. S. Supreme Court view themselves as a working arm of the Republican Party may make it unconsititutional…or at least result in such a ruling.

    Bush v. Gore…Citizens United…striking down part of the Voting Rights Act could be next. We’ll see.

  • SteveK

    Well said tidbits.

    The “Supreme Court Five” are definitely going to find a place in U.S. History but it won’t be the place they’re looking for.

    Many of their recent decisions might have been paved with good intentions but, like the road to hell, still gets you to the same place… And they’re taking U.S. values and all of US with them.

  • brcarthey

    What absolutely astounds me is how someone like Justice Thomas, who grew up in a segregated Georgia, can sit idly by and pretend that blacks during that time were all as happy-go-lucky as “Uncle Remus.” Does he really think that we live in a post-racial society that the Voting Rights Act is not needed, especially after the voting restrictions that just coincidentally happened in mostly minority (re: black an latino) neighborhoods? SMH, I can just hear Justice Thomas whistling “Zippity Do Da” on his way home tonight.

  • SteveK

    SCOTUS conservatives signal intention to dismantle Voting Rights Act
    Rachel Maddow reviews the history and necessity of the voting Rights Act and shows the overwhelming political and evidentiary support for the law when it came up for review, only for it to be held in low regard by some Supreme Court justices today.

    Visit for breaking news, world news, and news about the economy

    Includes some pretty powerful video clips from the period when the Voting Rights Act was passed showing why it was needed.

    They include clips from “The March to Montgomery” and LBJ’s address to both houses of Congress PLUS as Rachael Maddow was in court today she shares her first hand take on what the “Supreme Court Five” were up to today.

  • DR. CLARISSA PINKOLA ESTÉS, Managing Editor of TMV, and Columnist

    I’d have to agree steve with your comment about the clips. And add: just watching some of the barring of voters in nov 2000 in florida and elsewhere seems to say, still need laws for certain people will not grant the grace of equal access to everyone without such laws in place. Impunity re those who would block voting access, free and clear and unencumbered, has never been a good idea.

  • zephyr

    This has to be the worst supreme court in my lifetime. It makes me want to pull my hair out.

  • zephyr

    Btw, GWB may be gone (and forgotten by many) but his USSC appointments will be around for a long, long time.

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