The Voting Rights Act is Not A Racial Entitlement

Last week, during oral arguments for Shelby County v. Holder, U.S. Supreme Court Justice Scalia made the following controversial comments:

"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."

Justice Scalia's dismissive and condescending remarks are highly offensive for three reasons. First, the term" racial entitlements" implies that the Voting Rights Act ('VRA") is a voluntary handout to an undeserving people. 

That outlook negates our history and our struggle for voting rights. We must never forget our history. Never. The VRA is written in our blood.  Africans did not come to this country on the Mayflower. We did not voluntarily immigrate to this country. We were kidnapped and brought to this nation in chains. We were not citizens. We were property like a horse or cow. In fact, farm animals were treated with more respect and dignity than black people.

White supremacy was the only real racial entitlement system in America.  By law, the white man was entitled to rape, beat and kill black people with impunity.  In the words of the Dred Scott decision, the black man did not have any rights that the white man was bound to recognize.

After slavery, Congress passed the 13th, 14th and 15th Amendments. Those laws granted us citizenship rights. The Thirteenth Amendment abolished slavery. The Fourteenth Amendment guaranteed due process rights and equal protection under the law. The Fifteenth Amendment guaranteed all citizens the right to vote.

Despite the enactment of those crucial Constitutional Amendments, the forces of white supremacy used outright terrorism and Jim Crow laws to deprive African Americans of the right to vote and other basic civil and human rights. White racists did everything in their power to ensure that only white people were entitled to vote. The former states of Confederacy used poll taxes and so-called literacy tests to disenfranchise African Americans. Such tactics maintained the racist white power structure in the South with an iron fist.

We fought to end such racist practices. We marched and litigated. In response, police officers brutally beat us with batons and unleashed vicious dogs on us. The dogs bit us and ripped our clothes and flesh. To extinguish our hope, firemen used powerful blasts of cold water to slam us against buildings and throw us down the street. In addition to police brutality, we were victims of domestic terrorism. Terrorists assassinated civil rights activists like Medger Evers and countless others.

As a result of our struggle and sacrifice, Congress enacted the VRA to fulfill the broken promises of the Fifteenth Amendment. It was not a racial entitlement. Section 2 of the VRA prohibits discriminatory voting laws. Section 5 requires jurisdictions with a history of discriminating against African Americans to obtain preclearance from the Department of Justice and/or the United States District Court for the District of Columbia prior to enacting any changes in their voting laws.

Second, Scalia's comments suggest that Section 5 is unwarranted and unnecessary. VRA's effectiveness is unquestionable. It is evident by the increased black voter registration and participation rates. It is clear by the astronomical increase in the number of African American elected officials on the local, state and federal level. The election and reelection of President Obama, the nation's first African American President, epitomizes the VRA's success. However, the U.S. Senate remains virtually all white.  Moreover, there have been very few black governors.  Those are clear reminders that America still has a long way to go.

Section 5 is essential. Unlike Section 2, Section 5 prevents discrimination before it occurs. It saves plaintiffs the time and expense of trial. It places the burden on former Jim Crow states to demonstrate that their proposed voting laws changes will not adversely impact minority voters.

Shelby County, the petitioner, is prime example of why we still need Section 5. As Justice Sotomayer pointed out during oral arguments, the County had 240 discriminatory voting laws blocked by Section 5 and numerous violations remedied by Section 2 litigation. During oral arguments, Justice Kagan noted that the successful Section 2 litigation rate is four times higher in the covered jurisdictions than the rate in the non-covered jurisdictions. Again, that is more proof that Section 5 is still necessary.

Contrary to the Justice Scalia's assertions, Section 5 was not reauthorized for purely cynical political reasons. In 2006, Congress reviewed an extensive record, conducted hearings and determined that Section 5 was still necessary. Instead of respecting the role of the legislative branch and extending due deference, Justice Scalia and the other conservative justices question the findings and motives of Congress. If that is not judicial activism, I don't know what is. Where are those conservatives who usually love to complain about judicial activism?!?

As Congress did, we must realize that racism is not dead. As LDF attorney Debo Adegbile asserted during oral arguments, some white Alabama legislators in 2011 referred to African American voters as "illiterates" and "aborigines".  Most of the time, racism is less overt. It is covert. It has evolved and adapted to the times. Poll taxes and literacy tests have been replaced with restrictive voter ID laws, voter purges, ending early voting, documentary proof of citizenship requirements, restrictions on voter registration and deliberate noncompliance with the National Voter Registration Act. Such modern day tactics are designed to suppress minority voters.  As reported by Think Progress, Republican politicians in Florida, one of the states covered under Section 5, admitted that such laws are designed to suppress minority voters. 

Section 5 is an effective tool to address this new covert form of racism. In 2012, Section 5 prevented states such as Texas and South Carolina from enacting restrictive voter ID laws. Without the safeguards of Section 5, such voter suppression and dilution tactics will escalate in the South and throughout the other covered jurisdictions.

Finally, Scalia's statements imply that only minorities benefit from Section 5 of the Voting Rights Act. Section 5 benefits the entire nation. It has enabled this country to get closer to fulfilling its democratic ideals.  It protects all citizens' rights to participate in the electoral process. Such competition and involvement helps produce the best form of government. In sum, Section 5 is not a racial entitlement. It is a remedy to racial entitlement.

This article is cross-posted on Jack and Jill Politics.