Chief Justice Roberts has been gunning for the Voting Rights Act since he was in short pants. If you want to know the sordid history, which began when Roberts worked in the Reagan Administration, Adam Serwer has the recap. You should be very concerned. During oral arguments, today, Justice Scalia elicited audible gaffes when he said that Section 5 of the Voting Rights Act is a “perpetuation of racial entitlement.”
That’s right. Section 5 compels areas of the country with a documented history of race-based voter suppression to get permission from the Justice Department if they want to change their elections laws. The law says people of all “races” are entitled to vote. If you deny certain races that right by, say, intentionally causing eight hour voting lines in minority areas of Florida, then you are taking away something they are “entitled” to. It’s not a racial entitlement, it’s a citizen’s entitlement.
Do we have to lock Scalia in a room and force him to watch Lincoln until he gets this distinction?
The last two times that Scalia has heard a case on Section 5, he has complained that it was reauthorized with no dissenters in the Senate. Supposedly, the unanimous support for a law in Congress marks that law as suspect.
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.
SCOTUSBlog warns us that we should expect another 5-4 ruling, one that strikes Section 5 from the books. That’s their preliminary analysis after listening to oral arguments today. They don’t think preclearance will be will ruled completely unconstitutional, but the law will have to be redrafted somehow if we’re going to salvage anything.
That a black man, born in 1948 in Pin Point, Georgia, could be a party to such a ruling simply boggles the mind and takes self-loathing to a level probably not seen before outside of an asylum.
