In heated oral arguments Wednesday, the Supreme Court justices gave the impression that they’re ready to get rid of a key section of the Voting Rights Act. At issue is section 5, which requires the Department of Justice to issue a “preclearance” of any changes to districting or other voting laws in a number of set jurisdictions, covering most of the South but also Manhattan, Brooklyn, some counties in California and South Dakota, and towns in Michigan and New Hampshire. Justice Antonin Scalia argued that the laws had the effect of requiring racially motivated gerrymandering, amounting to the “perpetuation of a racial entitlement” on the part of black legislators and constituents benefiting from the districting. Chief Justice John Roberts agreed, asking Solicitor General Donald Verrilli, “Is it the government’s submission that the citizens of the South are more racist than the citizens of the North?”
Justice Anthony Kennedy, the swing justice on the court, seemed less concerned than Scalia about whites being treated unfairly and less concerned than Roberts about the risk of discriminating against Southerners. Instead, he questioned the law on on federalism grounds. “If Alabama wants to have monuments to the heroes of the Civil Rights Movement, if it wants to acknowledge the wrongs of its past,” Kennedy asked Verrilli, “is it better off doing that if it’s an own independent sovereign or if it’s under the trusteeship of the United States Government?”
But what would actually happen if Section 5 were overturned? Rick Pildes, an election law expert at New York University, thinks some of the reactions to those questions on the voting law are hyperbolic. He notes that the home page of the Huffington Post Web site featured the headline “Back to 1964?” Nonsense, he argues. “No one in their right mind can think that there’s a risk that we’re on the verge of going back to the world that existed before 1965.”
So, what is the risk, if there is one? Pildes notes that the Justice Department has come to use section 5 more as a tool to that ensure minority populations are represented in legislative bodies than a way to tackle “ballot box” issues, like voter ID, wait times at the voting booth, and so forth. “For several decades now, it’s been far more significant in terms of redistricting issues than it has in ‘access to the ballotbox’ issues,” he says. “We like to talk about first generation versus second generation claims. First generation claims are about access to the ballot box. Second generation claims are about the representativeness of districts and how they are constructed.”
Full Article: The Supreme Court could strike down part of the Voting Rights Act. Here’s what that would mean.