I attended the oral argument in the Voting Rights Act case before the U.S. Supreme Court, and I came away even more convinced that the Court should uphold the contested parts of the law. Section 5 of the Voting Rights Act requires that covered states “preclear” their proposed election law changes with federal officials. Nine states plus parts of seven others are “covered,” and many of these areas are in the South. Conservatives often complain about “activist judges legislating from the bench.” But some of the more conservative Justices’ comments reveal that the fate of the Voting Rights Act should be a decision for Congress, not for the Court. Justice Scalia said he thinks Congress’s decision in 2006 to renew Section 5 was motivated by a “perpetuation of racial entitlement.” It was the kind of political screed you might hear from Rush Limbaugh. Scalia’s baseless platitude could just as easily be made in the opposite direction–someone could claim Scalia wants to strike down voting protections to “perpetuate racial entitlement” whites have enjoyed for centuries. Neither assertion is appropriate in a court of law.
Contrary to Scalia’s belief, renewal was motivated not by “racial entitlement,” but by findings of voting discrimination. Congress found that discrimination remains concentrated in covered states based on 21 hearings, the testimony of over 90 witnesses, and a 15,000-page record. For example, Congress found that more than 750 Section 5 objections blocked approximately 2400 discriminatory voting changes between 1982–when Section 5 previously was reauthorized–and 2006. It also recognized that 650 successful voting rights lawsuits were brought in covered jurisdictions.
Scalia’s “hunch” about perpetuating “racial entitlement” is not legal reasoning. Instead, his hunch reveals that Congress is much better equipped than the Court to determine whether voting discrimination remains concentrated in covered areas.