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.

This is part of the Reuters series on the future of the Voting Rights Act’s Section 5, which the Supreme Court may strike down this year. You can read other pieces in the series here.

On Wednesday the Supreme Court is set to hear oral arguments in Shelby County v. Holder, challenging the constitutionality of a key part of the Voting Rights Act. But in the wide public debate about this case, we are getting to the point where — as election law scholar Pam Karlan has noted — everything has been said, but not necessarily by everybody.

In addition to this Reuters symposium on “If the Court Strikes Down Section 5,” other symposia, commentaries and op-eds have considered whether the act still serves a vital purpose; whether the court should strike it down; and what should replace it if the court rules that Congress went too far in requiring certain states to continue to get federal permission when making changes in any voting rules until 2031.

This is part of the Reuters series on the future of the Voting Rights Act’s Section 5, which the Supreme Court may strike down this year. You can read other pieces in the series here.

The Voting Rights Act has worked for almost 50 years to remove racial discrimination from the electoral process and prevent its return. Wednesday the U.S. Supreme Court is expected to hear oral argument on the constitutionality of Section 5, one of the act’s most powerful provisions. Section 5’s work is done, this argument goes, and the provision has outlived its usefulness.

Yet some of Section 5’s most important work lies beyond its technical application. Section 5 requires that jurisdictions with a documented history of racial discrimination in voting seek federal approval for any voting changes. The aim is to ensure that new voting laws will not “retrogress” — or harm — minority voting rights. It subtly and constructively inserts race into electoral decision-making — creating a race consciousness among decision-makers that can often preempt discrimination. This deterrent effect, and its impact on the discourse of race in elections, may be Section 5’s most important — and unfinished — work.

This is part of the Reuters series on the future of the Voting Rights Act’s Section 5, which the Supreme Court may strike down this year. You can read other pieces in the series here.

If the Supreme Court strikes down Section 5 of the Voting Rights Act in Shelby County v. Holder, the focus will turn to Congress and the question of what legislation it should enact in place of Section 5. An equally compelling question is what will happen to the scope of congressional authority over elections.

In City of Boerne v. Flores (1997), the court identified the Voting Rights Act as the ideal piece of remedial legislation, perfectly tailored to address the harm of voting discrimination and therefore an “appropriate” use of congressional authority. The court made this determination without discussing the combined authority of Congress under the 14th and 15th Amendments to regulate state and federal elections. The decision focused only on authority granted under the 14th Amendment.