On Wednesday, the Supreme Court heard oral arguments on a question not touched for nearly 50 years – namely, the question of whether parts of the landmark Voting Rights Act (VRA) of 1965 still stand the test of constitutionality, and specifically a section that has long plagued states’ rights advocates.
Unfortunately for liberals, who view the VRA as one of their landmark legislative achievements, the answer to that question may well be “no,” as many court analysts seem to have viewed the oral arguments in the case as either an unadulterated disaster for the government, or at least as a strong sign that a majority of the court is willing to consider striking down at least part of the act.
And to add to the Left’s consternation, Justice Antonin Scalia, known for his strongly worded opinions, attacked the motives behind reauthorizing the supposed touchstone of racial equality for being motivated by Congressional cynicism about race in an impromptu speech. Here’s Scalia’s statement from the transcript of the oral argument (emphasis added):
Well, maybe it was making that judgment, Mr. Verrilli. But that’s — that’s a problem that I have. This Court doesn’t like to get involved in — in racial questions such as this one. It’s something that can be left — left to Congress. The problem here, however, is suggested by the comment I made earlier, that the initial enactment of this legislation in a — in a time when the need for it was so much more abundantly clear was — in the Senate, there — it was double-digits against it. And that was only a 5-year term.
Then, it is reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it. And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.
I don’t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution. You have to show, when you are treating different States differently, that there’s a good reason for it.
That’s the — that’s the concern that those of us who — who have some questions about this statute have. It’s — it’s a concern that this is not the kind of a question you can leave to Congress. There are certain districts in the House that are black districts by law just about now. And even the Virginia Senators, they have no interest in voting against this. The State government is not their government, and they are going to lose — they are going to lose votes if they do not reenact the Voting Rights Act. Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?
This statement touched off a furious reaction from the liberal corner of the blogosphere and commentariat, and understandably so, given that Scalia more or less took a cleaver to one of their most treasured sacred cows. Apparently there were gasps even within the Court chamber when Scalia made his comment about “racial entitlement,” and Justice Sonia Sotomayor furiously challenged Bert Rein, the attorney arguing for striking down the act (and by extension, Scalia) afterwards:
JUSTICE SOTOMAYOR: Do you think that the right to vote is a racial entitlement in Section 5?
MR. REIN: No. The Fifteenth Amendment protects the right of all to vote and -
JUSTICE SOTOMAYOR: I asked a different question. Do you think Section 5 was voted for because it was a racial entitlement?
MR. REIN: Well, Congress -
JUSTICE SOTOMAYOR: Do you think there was no basis to find that -
MR. REIN: — was reacting — may I say Congress was reacting in 1964 to a problem of race discrimination which it thought was prevalent in certain jurisdictions. So to that extent, as the intervenor said, yes, it was intended to protect those who had been discriminated against. If I might say, I think that Justice Breyer -
JUSTICE SOTOMAYOR: Do you think that racial discrimination in voting has ended, that there is none anywhere?
Readers might understandably wonder what prompted this outburst, and also, just what on earth the case was about in the first place. As such, we’ve put together the following handy explanation for the fireworks.
What Is at Stake
The Voting Rights Act of 1965 was originally passed to allow the Federal government to stop nine states (almost entirely Southern states) from practicing voter suppression against racial minorities in the South. Moreover, when Congress originally passed the law, they acknowledged that banning only particular suppression tactics would be ineffective, given that these same states would just come up with new, more subtle ways of suppressing votes once the more explicit ones were banned. So as part of the Voting Rights Act of 1965, they included a controversial provision in Section 5 called “preclearance.” From section 5:
Whenever a State or political subdivision with respect to which the prohibitions set forth in section 4(a) are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, except that neither the Attorney General’s failure to object nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 of the United States Code and any appeal shall lie to the Supreme Court.
In other words, any time one of the states (or any of the counties within those states) covered wanted to implement a new set of voting laws, they would have to get the Federal government to sign off on those laws before they could be implemented. Needless to say, this provision has prompted outrage from states’ rights advocates, and has been the subject of constitutional controversy for some time.
Which brings us to this particular case, in which Shelby County, Alabama, sued to have Section 5 overturned, claiming that its method for deciding which states would be subject to preclearance was badly out of date (as it still relied on a calculus used at the time of the law’s original passage), and that the law itself exceeded Congress’s authority, given the absence of the same extraordinary conditions that existed in 1965. A vote by the Supreme Court to strike down Section 5 would thus make preclearance either unconstitutional entirely, or force Congress to pass a new form of it, which would be much harder and more messy in the present climate.
So What’s Alll the Fuss About?
Essentially, striking down preclearance would allow states a much freer hand in terms of cracking down on certain forms of voter fraud, or to redraw their Congressional districts such that districts that formerly were designed to be “safe” and keep specific minority members of Congress in power could suddenly become competitive. This would threaten many “safe” Democratic seats, and would also act as a symbol that the Court believes the racial tensions of the 60’s are a thing of the past. In other words, it would be a nightmare for the portion of the Left that focuses on identity politics.
In this context, the frenzied reaction to Justice Scalia’s remarks makes even more sense, given that Scalia declined to even accept the idea that those voting for the VRA in the present day had noble motives. Rather, he attacked supporters of the VRA for cynicism and also used the phrase “racial entitlement,” which makes those who see racism as an enduring fact of American society see red because it suggest their concerns are not valid.
More to the point, Sotomayor’s valiant rearguard action notwithstanding, the liberal Justices mostly spent their time trying to get the argument against the VRA dismissed not by defending the VRA, but rather by arguing that Shelby County had no standing to sue, which some may see as an implicit concession that the VRA’s preclearance measures are not worth defending.
Adding to this problem, in the process of making their argument, those same Justices said things that are likely to offend conservative residents of the South, and especially of Alabama:
JUSTICE SOTOMAYOR: May I ask you a question? Assuming I accept your premise, and there’s some question about that, that some portions of the South have changed, your county pretty much hasn’t.
MR. REIN: Well, I -
JUSTICE SOTOMAYOR: In — in the period we’re talking about, it has many more discriminating -240 discriminatory voting laws that were blocked by Section 5 objections. There were numerous remedied by Section 2 litigation. You may be the wrong party bringing this.
MR. REIN: Well, this is an on-face challenge, and might I say, Justice Sotomayor -
JUSTICE SOTOMAYOR: But that’s the standard. And why would we vote in favor of a county whose record is the epitome of what caused the passage of this law to start with?[…]
JUSTICE KAGAN: But think about this State that you’re representing, it’s about a quarter black, but Alabama has no black statewide elected officials. […] If you use the number of Section 5 enforcement actions, Alabama would again be the number two State on the list. I mean, you’re objecting to a formula, but under any formula that Congress could devise, it would capture Alabama.
No doubt, many residents of Alabama would object to the idea that their state is the second most racist in the country and still unavoidably has to be policed by the Federal government. And indeed, the argument from both sides during the case played on ideas that at least some people in the country would find offensive. These were eschewed by the court’s swing vote, Justice Kennedy, who sent mild signals that he was favoring overturning preclearance.
Still, both liberals assuming the worst and conservatives feeling optimistic should be wary of over-confidence about their predictions. Oral arguments are an infamously poor predictor of what will happen in a case when the Court rules. For instance, in HHS v. Florida (also known as the Obamacare case), oral arguments went terribly for the government, yet they ended up winning the case.
The Voting Rights Act is not dead yet.