Section 5 of the Voting Rights Act of 1965 is a provision that requires sixteen states with a history of voter suppression and racial discrimination to clear any proposed changes in voting laws with the Justice Department before they can go into effect. It is being challenged in the US Supreme Court, and today was the first day oral arguments were heard, and it wasn’t pretty. Justice Antonin Scalia unintentionally made the case for why Section 5 is still very much needed:
The Voting Rights Act took a beating from conservative justices Wednesday during oral arguments at the Supreme Court.
At issue is the constitutionality of Section 5 of the 1965 law, which requires state and local governments with a history of voter disenfranchisement to pre-approve any changes that affect voting with the Justice Department or a federal court.
Oral arguments showed a sharp divide along ideological lines and suggested that the conservative majority is strongly inclined to overturn Section 5 of the half-century-old law.
Justice Antonin Scalia attributed the continued congressional reauthorization to the “perpetuation of racial entitlement” and suggested that it will be renewed endlessly because members of Congress would never let it lapse for fear for political repercussions.
“I don’t think there is anything to be gained by any Senator to vote against continuation of this act,” Scalia said. “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?”
Here are Scalia’s full remarks, via the Daily Kos
JUSTICE SCALIA: …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?
Hat tip - Crooks and Liars