The Great Debate

It’s rare to reach a point in our national sense of humor that a sitting Supreme Court justice emerges as the butt of popular jokes for comments he made during an oral argument. That’s what happened last week, however, after Justice Antonin Scalia asked lawyers defending Congress’s extension of Section 5 of the 1965 Voting Rights Act whether maintaining the pre-clearance formula for nine “covered” states, which are subject to federal oversight, was really just a “racial entitlement” program and not a constitutional necessity.

The media filled with guffaws about the justice’s audacity. Cartoonists ridiculed his racial insensitivity. MSNBC talk show host Rachel Maddow, dismissing Scalia’s words as mere willful provocation, called him a “troll.”

We’d be wise to watch the name-calling. Insulting as Scalia’s words sound, there’s more to the justice’s comments than political incorrectness. For those who care about more than full and fair voting rights for minorities, responding to the perceived slight with more name-calling misses the point. Scalia was talking about far more than the Voting Rights Act. He was talking about whether the Constitution affords minorities any real protection for a range of discrimination anymore.

Take Shelby County v. Holder, argued February 27 before the Supreme Court: Is the pre-clearance provision of the Voting Rights Act still constitutional — though Congress found extensive examples of racial discrimination in voting as recently as 2006? One might answer yes, because Congress has the authority to do that under our system. The 2006 extension came after Congress compiled a voluminous record of problems and was passed overwhelmingly by the House and — for the first time — unanimously in the Senate.

Beyond this question of congressional power, however, is a question of belief. If you answer yes, it is because you probably hold three beliefs. First, you believe that race and color are still significant risk factors in the exercise of some constitutional rights — like voting. Second, you believe there’s reliable evidence to support the first belief. And third, you think that laws as written can fix it.

If the Supreme Court strikes Section 5 of the Voting Rights Act, what next? It’s a depressing question, with a depressing answer. That’s because no practical substitute solves the problem that Section 5 solves.

Section 5 is special medicine for broken democracies. It demands that the federal government sign off on election changes, in areas where less than half the eligible population was able to vote in 1964, 1968 or 1972. Majority rule is grade-school civics. But in these jurisdictions, a majority of the electors could not cast a valid ballot. That is broken democracy.

In these areas, democracy was often broken by design ‑ crafty tactics to lock out the most vulnerable and shifting representational schemes to dilute the influence of the few who were able to sneak through.

The Republican Party is in danger of reaping what it has sown.

Much has been written about the GOP’s problem with minority voters.  Quite simply, the party has managed to alienate every nonwhite constituency in the nation.

This is not an accidental or sudden phenomenon. Ever since Republicans chose almost 50 years ago to pursue a Southern strategy, to embrace and promote white voters’ opposition to civil rights, the party has been on a path toward self-segregation.

Successive Republican administrations have pursued agendas that included retreating on civil rights enforcement and opposing government programs that increase minority opportunity. That steady progression culminated in Mitt Romney’s disastrous showing among African-American, Latino and Asian voters.

ILLUSTRATION: MATT MAHURIN

Former GOP presidential nominee Mitt Romney said in a Wednesday conference call to donors that President Barack Obama won re-election because he promised “big gifts” to voters, “especially the African-American community, the Hispanic community and young people.” Romney singled out healthcare reform as a “huge” gift to these voting blocs and the working poor.

This echoes what the conservative commentator Bill O’Reilly has been saying. “The demographics are changing,” O’Reilly lamented on election night. “This is not a ‘traditional America’ anymore.” Latino, black, and women voters, he noted, were turning out for Obama. They did so, O’Reilly said, because “they want stuff.”

The audacity of these claims is breathtaking. The Romney campaign promised $5 trillion in tax cuts and a pile of regulatory and other favors to the wealthiest Americans. Over the past three decades such conservative “gifts” have helped the top 1 percent of earners – the likes of Romney and his donors – to nearly triple their incomes and double their share of the national income.