In recent decades, support for the Voting Rights Act became nearly universal -- that is, until very recently. As much of the right has become increasingly radicalized, the VRA has become a popular target, and Attorney General Eric Holder recently noted that there have been more conservative legal challenges to the Section 5 of the VRA over the past two years than during the previous four decades.
The timing of these challenges is not coincidental -- GOP policymakers nationwide launched an ambitious "war on voting," deliberately creating longer voting lines, closing early-voting windows, addressing imaginary voter fraud through punitive voter-ID laws, restricting voter-registration drives, and overseeing an anti-voting campaign unlike anything seen in the United States since the days of Jim Crow. In many parts of the country, the Voting Rights Act has stood in the way of the larger conservative agenda.
This in turn set the stage for a historic Supreme Court showdown, which after this morning's oral arguments, appears to heavily favor Republicans.
A central provision of the Voting Rights Act of 1965 may be in peril, judging from tough questioning on Wednesday from the Supreme Court's more conservative members.
Justice Antonin Scalia called the provision, which requires nine states, mostly in the South, to get federal permission before changing voting procedures, a "perpetuation of racial entitlement." Chief Justice John G. Roberts Jr. asked a skeptical question about whether people in the South are more racist than those in the North. Justice Anthony M. Kennedy asked how much longer Alabama must live "under the trusteeship of the United States government."
The court's more liberal members, citing data and history, said Congress remained entitled to make the judgment that the provision was still needed in the covered jurisdictions.
Last summer, during some of Scalia's partisan antics, a constitutional law professor at UCLA said the conservative jurist "has finally jumped the shark." If that was true in June, I think it's fair to say "perpetuation of racial entitlement" is proof that Scalia has already taken the skis and the leather jacket off, but just doesn't care about credibility anymore.
For voting-rights proponents, there's a lot to find discouraging. The five-member conservative majority, by all accounts, was deeply skeptical of the VRA this morning, and while Chief Justice John Roberts was willing to break ranks on health care, Roberts has also been trying to tear down the Voting Rights Act for much of his career. Voting-rights supporters can hope Justice Kennedy might be the swing vote, but it appears to be a long shot.
Roberts and Justice Anthony Kennedy, who led the questioning challenging the Voting Right Act, both labeled the formula used for Section 5 "reverse engineering."
Kennedy said the formula "obscures the real purpose." He declared that "if Congress is going to single out states, it should do so by name." Although he said there's no question Section 5 was "utterly necessary" in 1965, its validity now is "not clear" to him.
"The Marshall Plan was very good too," Kennedy said. "But times change."
It would appear the consensus among conservatives is that systemic discrimination and institutional racism throughout the South was a problem before, but that unpleasantness is behind us, which necessarily means the Voting Rights Act has outlived its usefulness.
As Rep. John Lewis' (D-Ga.) reminded us the other day, those assumptions are wrong.
In 2006, Congress debated this very question over 10 months. We held 21 hearings, heard from more than 90 witnesses and reviewed more than 15,000 pages of evidence. We analyzed voting patterns in and outside the 16 covered jurisdictions. We considered four amendments on the floor of the House; the Senate Judiciary Committee considered several others.
After all of that, Congress came to a near-unanimous conclusion: While some change has occurred, the places with a legacy of long-standing, entrenched and state-sponsored voting discrimination still have the most persistent, flagrant, contemporary records of discrimination in this country. While the 16 jurisdictions affected by Section 5 represent only 25 percent of the nation's population, they still represent more than 80 percent of the lawsuits proving cases of voting discrimination.
For VRA advocates, the problem remains a national scourge in need of a remedy that's already in place. For VRA proponents, there is no problem, so the remedy is superfluous.
We can expect a final ruling from the Supreme Court over the summer. It's probably best to start lowering expectations now.
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It's funny how the Court Majority leans so heavily on the Rational Basis test -- essentially giving legislatures carte blanche to find (for instance) a compelling need for laws to address voter fraud and to find that photo ID will solve this crisis. Except, it appears, when the Legislature finds a need to protect voting rights in Red States. Then the Court becomes the ultimate fact-finder without any need to actually hold a trial of the facts in question.
Liberals are always harassing people to make decision according evidence-based reality... commies.
Muleman are you drunk? Or did you forget how to speak/write in english? Perhaps this is not your native language? Whatever the case...learn to communicate if you want anyone to ever comprehend your comments.
Judy
I think Muleman was being sarcastic..or I least I hope he was.
Justice Antonin Scalia called the provision, a "perpetuation of racial entitlement.
He's correct- the Constitutional ENTITLEMENT to vote!
Sort of like "Life, Liberty, and the pursuit of Happiness" is an entitlement.
Well I'm not surprised,It's never been meant to be the melting pot the US has become.This is nothing more than white supremacy in Paranoia . Afraid the minority's will take control.Sad for years they asked minority's to trust them,now that the shoe could possibly be on the other foot,They have found away in there fear to stop the progression of Human Right's ! GOD help us all:)
"For VRA advocates, the problem remains a national scourge in need of a remedy that's already in place. For VRA proponents, there is no problem, so the remedy is superfluous."
Um, aren't advocates and proponents the same thing?
If the justices are too stupid to realize what happened in the last election, than maybe they should not have lifetime appointments. Maybe they need to to go out among the people and get a reality check.
It should be counted among the absurdities of life that the reich wing Supremes are the only 'leaders' of the repuke party who are actually effective in getting the far reich agenda of the wealthy implemented.
It is not as doom and gloom as it sounds. I'm surprised that MSNBC and Steve Benen were so quick to cast such a bleak outlook. At the end of my post is a link to a commentary regarding today's arguments before the SCOTUS. There are some very valid arguments on the pro-voting rights side of the case.
SCOTUSblog commentary
And since when has a valid argument meant more than burp to the right wingers on the bench? Remember how they managed to contort themselves in order to give corporations the right to buy elections? Remember how they contorted themselves in the Lily Ledbetter case?
The obvious answer to Kennedy's question is a picture of the Florida voting lines in black areas vs. a picture of the two people in the white areas.
And the obvious answer to Roberts' question isn't that the people are more racist, but that the political system is. The Voting Act doesn't address individual people's attitudes, but rather it addresses the way the political system suppresses minority voters.
To say that the voting rights act is no longer needed because everyone can vote now is ridiculous. The result would be that states could go back to the old days and require a poll tax to vote or require that voters pass a written test.
Should we also repeal the 13th Amendment, which abolished slavery, since there are no longer slaves? Should we abolish the Civil Rights Amendment and allow businesses to post "Whites Only" signs on their doors.
I said it before: Republicans required a reading out loud of the entire Constitution at the beginning of the 2011 Congress in order to bid it a fond farewell before they rip it to shreds.
Supreme Court Where is Thine Supremacy.
The voting rights act will now -- become a permanent campaign item -- for whoever believes in the right to vote.
That the world has changed, we have no doubt, as it was the right to vote that was not protected in the original Constitution but rather was delegated to the states.
This was because the original right vote was purposely discriminatory, and what better place to divide that responsibility to discriminate -- than to hide it in plain sight.
That the Constitution has changes, we have in known fact, blacks, minorities and women were granted that right to vote.
So it clearly follows that the right to vote is in conflict with the ability of act to be purposely discriminatory and to hide it under the ruse of state rights.
Those two things cannot coexist without encouraging endless local machinations by those claiming state powers not so claimed at the federal level at to belonging to the state.
Surely today, voting rights, granted, in fact by some constitutional amendments, are in conflict with the unfinished work to transfer of this power to the federal government, needed to complete the right to vote.
That work is not complete, hence the voting rights act sought to remedy in legislation -- whereas it clearly had to be a corrective amendment; that addressed all forms of voting discrimination that are regularly sought as new machinations by the several states and local fiefdoms.
The passage of specific sections to remedy the pattern of discrimination long neglected by Congress was merely an expedient to correct a long standing and permanent and recurring problem.
Today to overrule that expedient that has cost the country dearly and without the fullness of remedy is to swing the pendulum backward and to suspend the process of improving justice over the imperfect laxity of the Congress. The cost of doing the endless future campaigns to correct the egregious wrong clearly wasteful, and the cost dear, and outcome halting and dangerously reversible. History cannot be allowed to be so reversed.
So what is the right thing to do? It would not take the Wisdom of Solomon to keep this law in place, and to request that Congress produce a permanent non-expiring law or a Constitution amendment that makes new machinations by the several states and local fiefdoms subject to remedies such as voiding elections and requiring new elections. The politics might take a long time, but that is a problem of politics not of time.
We know from history, that there is no way to stop progress, to remove the right to vote, any more than we can stop new machinations to rig the elections, and to rig the voting districts and the precincts, and to rig the electoral college, and to buy elections, and to buy politicians, and to use the asymmetric wealth to purchase the media, and to purchase journalists, and to bias the whole of the country by technological saturation advertising.
Pray for the day when the only place of power is in the confines of a private voting booth, and blessed be the time of the voter to think in peaceful resolution and the vote.
The country ought to recite the pledge of allegiance every now and then.
I think it's time that justice scalia should recuse himself from this decision. He can't think straight when he says that VOTING BY BLACKS IS AN ENTITLEMENT!!!!
In fact, I think Scalia has poisoned the court against the Voting Rights Law..
Let's hope that the questions posed were meant to be raised and overcome in the justices' minds, and not forewarning of their positions, as Justice Sotomeyer told Charlie Rose within the last month.
I made a documentary, nominated last year for an Academy Award, which addresses this issue of voting rights through the eyes of an 85-year-old barber and foot soldier from Birmingham, Alabama. He was one of the thousands who were willing to risk their lives for the right to vote.
www.barberofbirmingham.com
We really need to overhaul our justice system!! There needs to be a term limit and out of cycle of other elections... say like a 3 year term.. That way the justice department won't follow the elected President at least right away..
Why should they get a life appointment?? What was the purpose behind that stupid rule?
I have suggested that each President [in the 1st July of each term] be allowed to force 1 SC Justice [incl. the Chief J] to retire and replace him/her in the normal way.
But, now I would need to also do something about filibustering nominations.
Racial entitlement? Aren't all races entitled to vote? All you have to do is look at the last election to know that the VRA is still needed, in fact it needs strengthening. That was a very stupid statement, but it came from Scalia so what can you expect?
Instead of striking down key provisions of the Voting Rights Act, the Supreme Court should be extending such provisions to all states! For those of us paying attention, we now know full well that voting suppression and other shenanigans are taking place over all our country, not just in the South and all perpetuated by Republicans who realize they can’t win an election any other way!
We also know full well that this Supreme Court, like the Heritage Foundation and the Chamber of Commerce and other such lofty sounding organizations, are nothing more than Conservative (often quite radically conservative) strong arms and extensions of the Republican and Tea Party policies and agendas. This is no accident and unfortunately, the highest court in the land is a POLITICAL court, more so now than ever before, or so it seems. Money, greed, racism, and partisan politics has corrupted this court, and now when an issue reaches the Supreme Court, one can fairly reasonable predict the outcome of the reached decision even before the discussions begin. Why, for example, would anyone be surprised at anything Scalia says. He is simply being true to who he is as a person…to his personal beliefs…to his history…to why he was put on the Court in the first place. To do other than that would be the surprise. Remember how surprised everyone was when Roberts went against the tide and found a way to uphold The Affordable Care Act? Remember the Republican and Conservative backlash and rebuke of Roberts. The possibility of this happening again is nil. They “toe the line” and if this is not in the interest of ALL the American people….so be it. Remember the Conservatives of the country want to roll back what most of us consider progress. The election and re-election of President Barack Obama has re-ignited a passionate movement to disenfranchise non-white people from participation in the democratic process. The Republican Party and The Tea Party , now inseparable, are predominantly white people, who appear threatened by the “Browning of America.” Since they and their policies do nothing to attract these people to their party, they are trying to find ways to remain viable without them. And that is the reason for the attacks on voting rights in America while at the same time, by the way, trying to export Democracy to other countries. They simply cannot win a major election with their anti-black, anti-latino, anti-women, anti-gay, anti-equality, anti-everything policies and agendas. And with the Highest Court giving them cover and protection under the law…….well, if it weren’t so devastatingly awful, bordering on criminal for so many people, it would be laughable….