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…
Joe Gandelman is a former fulltime journalist who freelanced in India, Spain, Bangladesh and Cypress writing for publications such as the Christian Science Monitor and Newsweek. He also did radio reports from Madrid for NPR’s All Things Considered. He has worked on two U.S. newspapers and quit the news biz in 1990 to go into entertainment. He also has written for The Week and several online publications, did a column for Cagle Cartoons Syndicate and has appeared on CNN.