A few weeks ago, Supreme Court Justice Antonin Scalia said that a key provision of the Voting Rights Act was motivated by a “perpetuation of racial entitlement.” Now comes word that on Monday night, Scalia told a group of students that the provision is an “embedded” form of “racial preferment.” He believes the provision is a racial entitlement because the federal government does not take a similar interest in protecting the voting rights of whites. Even aside from improperly commenting on a pending case, Scalia is wrong. Section 5 of the Voting Rights Act — currently under review by the Court — is not a quota system to elect minority candidates. Instead, it is an enforcement tool to prevent voting discrimination. Section 5 requires that covered states “preclear” their proposed election law changes with federal officials to ensure the changes are not discriminatory. Nine states plus parts of six others are “covered.” States and localities that maintain a clean record for 10 years can “bail out” of coverage.
The 15th Amendment of the U.S. Constitution explicitly authorizes Congress to pass laws like Section 5 tailored to prevent voting discrimination. Those who subscribe to “original intent” know the initial motivation for the Fifteenth Amendment included preventing white Southern politicians from winning elections by manipulating election rules to deny or dilute African-American votes.
Recent facts show discrimination against voters of color remains concentrated in covered states. For example, covered areas account for less than 25 percent of the nation’s population, but more than 80 percent of successful voting discrimination lawsuits under another provision that applies nationwide. Extreme white bloc voting — which fuels political operatives’ incentives to suppress minority voting — is about twice as likely in covered areas as non-covered areas.
Based on 21 hearings, over 90 witnesses, and a fifteen-thousand-page record, in 2006 Congress determined that discrimination against voters of color remains concentrated in covered states, and overwhelmingly renewed Section 5.