The Supreme Court heard oral arguments in the case of Shelby County v. Holder — a challenge to the Voting Rights Act of 1965, specifically Section 5, which requires states and localities with a history of voting discrimination against racial and language minorities to get “pre-approved” by the federal government before changing how elections are conducted or voters are registered.
Most commentators think that this core provision of the Voting Rights Act is in trouble. Judging by remarks from three of the five conservative judges, they may be right.
Chief Justice John Roberts asked Solicitor General Donald Verrilli whether the Obama administration thinks Southerners “are more racist than citizens in the North.” Verilli said no.
Of course, Roberts didn’t explain what the degree or quantity of individuals’ racism had to do with systemic and systematic governmental efforts to deny some eligible citizens the right to vote.
Justice Anthony Kennedy faulted Congress for relying on a decades-old formula for determining which states were covered by the act, and said Congress should “single out” the states “by name.” He also said, “The Marshall Plan was very good, too ... but times change.”
Of course, Kennedy didn’t explain why the age of the formula mattered, since by all accounts the formula still works. Nor did he explain the advantage to “naming states” or the relevance of his analogy. Times may change, but the problem persists.
Finally, Justice Antonin Scalia called the Voting Rights Act “a perpetuation of racial entitlement.” I hope even conservatives are appalled and disgusted by such an offensive falsehood.
On the other side are the facts:
In 2006, Congress reauthorized the Voting Rights Act for another 25 years. Congress did so only after extensive hearings, compiling over 15,000 pages of records showing Section 5 was still needed. The vote to renew was nearly unanimous: 390-33 in the House; 98-0 in the Senate.
U.S. District Court Judge John Bates — a George W. Bush appointee, by the way — in upholding the law, recognized not only Congress’s right to renew it, but the continued legal need for it, as he explained in his 131-page opinion.
Some more facts, from this past year:
A panel of federal judges refused to approve Florida’s attempt to cut early voting hours in the state’s five counties covered by Section 5 of the Voting Rights Act. After that decision, the state agreed to allow the five counties to return to offering 96 hours of early voting, ensuring that those counties enjoyed the same amount of early voting hours that were available in 2008.
In a Texas case, a panel of federal judges held that the state’s new photo ID law violated the Voting Rights Act, in part because the law would impose “strict, unforgiving burdens” on poor and minority voters. As the court stated, “a law that forces poorer citizens to choose between their wages and their franchise unquestionably denies or abridges their right to vote.” This restriction — under which voters could have cast ballots with a gun license, but not student or veteran IDs — did not go in effect on Election Day.
In South Carolina, the state’s photo ID law was blocked by a federal court that ruled not enough time remained before Election Day to implement it in a way that would satisfy Section 5 of the Voting Rights Act.
The conservative justices, who wrongly think that times have changed, should be reminded of what happened in early February. On the heels of Steven Spielberg’s biographical film of President Lincoln, after 148 years, the state of Mississippi finally ratified the 13th Amendment abolishing slavery.
When Congress debated renewal in 2006, Sen. Ted Kennedy explained why it was necessary: “We need to ensure that jurisdictions know that the act will be in force for a sufficiently long period that they cannot simply wait for its expiration, but must eliminate discrimination root and branch.”
And today, in response to Scalia’s vile comment, former President Bill Clinton told ThinkProgress.com: “Since the Act’s enactment in 1965, disciplined, systematic efforts to undermine its safeguards by disenfranchising younger, poorer, minority, and disabled voters — some even more determined today than they were 48 years ago — are reminding us of the fragility of this very precious right.”
Indeed, given the efforts to suppress or deny the right to vote in Pennsylvania and Michigan, and the minority-targeted voter intimidation billboards we saw in Ohio this election, an argument can be made that Section 5 of the Voting Rights Act should actually be expanded.
The expected 5-4 decision to strike down Section 5, along with a long-standing disdain for Congress and de facto disenfranchisement of voters, would further damage the reputation of a Supreme Court still shamed by the Dred Scott decision and Plessy v. Ferguson in the 19th century, and Bush v. Gore and Citizens United in the 21st century.
Donna Brazile is a senior Democratic strategist, a political commentator and contributor to CNN and ABC News.