It’s been a week of big events in the voting rights world, and I’ve been privileged enough to witness much of it first-hand. On Wednesday, the U.S. Supreme Court heard oral arguments in Shelby County v. Holder, a case challenging the constitutionality of Section 5 of the Voting Rights Act. Even Justice Samuel Alito has acknowledged that this law is “one of the most successful statutes that Congress passed in the 20th century and one could probably go farther than that.” And earlier in the week, a three-judge panel of North Carolina state judges heard oral arguments in the case challenging the constitutionality of the state legislative and congressional redistricting plans enacted by the General Assembly in 2011. Listening to discussion of the Voting Rights Act in both cases, I was struck by contrasts between the arguments advanced by lawyers for Republicans in the North Carolina case and what the conservative justices were concerned with the Shelby case.
Section 5 of the Voting Rights Act requires certain parts of the country (including 40 of North Carolina’s 100 counties) to get pre-approval before making any changes to voting laws, including redistricting plans. The differences are more than a little ironic.
For example, Justice Antonin Scalia railed, offensively to my ear, against “perpetual racial entitlements,” worrying that the Voting Rights Act might forever mandate that “certain districts … are black districts by law.”
But voters of color in North Carolina are the ones now fighting Scalia’s fight – they don’t want or need a map of just “black districts” and “white districts.” They consistently argued in favor of building on the progress they’ve made in creating successful multi-racial coalitions. They repeatedly asked Bob Rucho and David Lewis, Republican chairmen of state legislative committees on redistricting, not to be shoved into “black districts” when they’ve proven that black candidates can win in districts that are not majority black.
It’s the General Assembly’s 2011 maps that perfected the brand of racial entrenchment that Scalia finds distasteful.
Similarly, the Supreme Court conservatives posed sharp questions about the need for Congress to develop evidence that established the specific record of racial discrimination in each state subject to Section 5. They suggested that it was important not to lump states together in assessing whether a voting rights remedy remained necessary.