The Supreme Court is currently hearing arguments to strike down sections of the Voting Rights Act of 1965. This has been a top news story, particularly after Justice Antonin Scalia called the VRA itself (not just the sections in question) a “racial entitlement”. Let’s look at the VRA of 1965 and the debate over it in the Court.
The VRA was passed in 1965 as part of President Johnson’s civil rights legislation. The U.S. Department of Justice website describes it this way: “Pursuant to the Act, the Voting Section undertakes investigations and litigation throughout the United States and its territories, conducts administrative review of changes in voting practices and procedures in certain jurisdictions, and monitors elections in various parts of the country.” This means that voting procedures anywhere in the U.S. can be reviewed, especially when those procedures are changed, and that elections can be monitored to make sure they are fair. Notice the language goes from the entire U.S. and its territories to “certain jurisdictions”—this was originally directed at the southern states, where repression of black voters was well-documented. The Act does not say “southern states” because its authors knew that while it was the south that had a demonstrable problem with fair elections in 1965, the problem could crop up anywhere else at any time. So wherever unfair elections were discovered, those “certain jurisdictions” would come under scrutiny.
Sections 2, 4 and 5 of the Act are the most critical. Section 2 forbids race discrimination in poll worker hiring, voter registration, and redistricting plans. Section 4 sets out the criteria for determining when a jurisdiction is violating fair elections and voting. And Section 5 states that once your state or territory has been designated as problematic and unfair in its voting and election process, any change with respect to voting there can’t be legally enforced until it’s been reviewed by the U.S. District Court or Attorney General. Any jurisdiction with a proven history of voting discrimination had to prove that the change being proposed is not discriminatory—not just another attempt to prevent minorities from voting freely. The jurisdiction has to prove the absence of racial discrimination, and if it can’t, the proposed change cannot be made law. If the suspect jurisdiction can prove that it has gone 10 years without any voter discrimination, it is no longer subject to Section 5.
The key word in all this, of course, is proof. The suspect locale has to prove it is not discriminatory. This represents a rejection of the federal government’s traditional tactic, post-Reconstruction, of listening to southern political leaders say everything was just fine and there was no threatening or lynching of black voters and saying, Great—that’s good news.
The VRA as a whole has been re-approved by Congress several times, most recently in 2006, when it passed by a vote of 98-0 in the Senate and 390-33 in the House. At that time, House Speaker John Boehner (R-Ohio) said the VRA was “an effective tool in protecting a right that is fundamental to our democracy.”
But in the summer of 2012, Shelby County, Georgia, challenged the 2006 reauthorization, saying that Congress had exceeded its authority under the Fourteenth and Fifteenth Amendments and violated the Tenth Amendment and Article IV of the United States Constitution. To quote from SCOTUS Blog:
“…lawyer Bert Rein, representing Shelby County in its challenge to the statute… began by reminding the Court of its 2009 decision in Northwest Austin Municipal Utilities District No. 1 v. Holder, in which it acknowledged that “the South had changed” and “questioned whether current remedial needs justified” the costs – both financial and to the jurisdictions’ autonomy – of the pre-clearance requirement. But Justice Sonia Sotomayor quickly jumped in, observing that even if the South as a whole has changed, Shelby County itself has not. Because Shelby County’s track record of discrimination at the polls remains poor, she suggested, it ‘may be the wrong party bringing this’ case.”
In short, Shelby County said the VRA was outdated and permanently labeled the south as racist, violating the south’s right to equal protection and due process under the law. Justice Sotomayor said this was not about the past but about the present, as Shelby County could not prove it was not discriminatory at the moment, in 2012. Between 1984 and 2010, Shelby County underwent a shift from majority Democratic to Republican, and in 2010 100% of all elected county officials were Republican. The county has not proved that this is the result of the free will of all voters, regardless of race, and not election fraud or voter intimidation, and so it must remain subject to Section 5 of the VRA.
The Court began hearing arguments in the case on February 27, 2013. This was the day Justice Scalia made his controversial claim that Section 5 was a “racial entitlement”, but his 2006 run-up to that statement is even more illustrative of how he sees the VRA:
“The comment came as part of a larger riff on a comment Scalia made the last time the landmark voting law was before the justices. Noting the fact that the Voting Rights Act reauthorization passed 98-0 when it was before the Senate in 2006, Scalia claimed four years ago that this unopposed vote actually undermines the law: ‘The Israeli supreme court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there.’
“That was an unusual comment when it was made, but Scalia’s expansion on it today raises concerns that his suspicion of the Act is rooted much more in racial resentment than in a general distrust of unanimous votes. Scalia noted when the Voting Rights Act was first enacted in 1965, it passed over 19 dissenters. In subsequent reauthorizations, the number of dissenters diminished, until it passed the Senate without dissent seven years ago. Scalia’s comments suggested that this occurred, not because of a growing national consensus that racial disenfranchisement is unacceptable, but because lawmakers are too afraid to be tarred as racists. His inflammatory claim that the Voting Rights Act is a ‘perpetuation of racial entitlement’ came close to the end of a long statement on why he found a landmark law preventing race discrimination in voting to be suspicious.” [our italics]
Here is Scalia’s 2013 statement: “[The VRA was] reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it. And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. 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.”
Scalia’s point, and that of most of the VRA’s opponents, is that the Act is no longer necessary, for two main reasons: a) the south isn’t racist anymore; b) other regions are racist but not being subjected to the Act. As we’ve seen, the Act is not written specifically for the south, but for any jurisdiction, state, or region that has provable voter repression and unfair elections. Yes, repressive new voting laws in northern and western states, usually strict voter ID laws, should be investigated as well… yet how can they be if the VRA is revoked? If the complaint is that all other regions of the nation should be equally suspect of racial discrimination in elections and should be punished for that, how can they be punished if the Act making that illegal is taken away?
What the push to revoke Section 5 and, one can’t help believing, the VRA as a whole, reveals is not a rejection of Civil War-era prejudice against the south but the very modern push to get rid of “big government”. Anti-VRA activists don’t want the DoJ involved in regulating and investigating state voting procedures. They want voting procedures to be regulated by the states, with no federal oversight, which is exactly the situation that made the VRA so necessary, when states violating fair elections were allowed to do that because there was no federal law to stop them. States with a history of racial discrimination in voting—whether it goes back to 1865 or started in 2012—have to be subject to federal oversight because they will not change their own laws.
We’re not sure if members of Congress voted to re-authorize the VRA in 2006 because they were afraid to be labeled as racist if they didn’t; we’re not sure that’s a bad thing. One would hope that being racist would always be a red flag in the United States, and something politicians would want to avoid. But we do know that there is a new trend in play, in which laws that have outlawed discrimination against minority populations have been called reverse discrimination, or revoked because they were successful. The latter is like saying, “Why do you take pills for your high blood pressure? You haven’t had high blood pressure in years. Why are you wasting all that money taking medicine for something you don’t have?” And if one replies, Well, if I didn’t take the pills my high blood pressure would come back, so the pills are preventive, the other party would say “So you’re paying good money not to fix a real problem, but to make sure a problem doesn’t happen? What evidence do you have that the problem might ever happen?” And one might say, My history of high blood pressure. And the arguer would say, dismissively, “History! You’ve got to respond to conditions as they are today, not spend money based on what happened in the past.”
But we would hold that a history—no matter how long or how short—of racial discrimination is a red flag, and needs to subjected to federal investigation in the present, to ensure the future. The fact that states all over the nation are regularly introducing discriminatory voting laws proves that we need the VRA, and need it to be more stringently enforced than ever, not that it’s time to realize that the south isn’t racist and the government’s too big and everything is just fine with voting in the U.S., and all the other claims being made in the Court and the nation as we follow this case.
The Historic Present 