Thursday, February 28, 2013
As he intended, Supreme Court Justice Antonin Scalia caused quite a stir yesterday when he said “that the Court had to rescue Congress from the trap of being afraid to vote against a “racial entitlement”—the “entitlement” in question being 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?” This incident alone makes me rethink the validity of permanent appointments.Justice Roberts has been wanting to strike down the Voting Rights Act for longtime but he chose not to use the caustic language. This is another one of those issues they will come down to a 5-4 decision depending on what side Justice Kennedy takes.
It’s an interesting case where Shelby County, Alabama thinks that they should not be bound by the 1965 Voting Rights Act since they think they have cleaned up their act, and racism is not as prevalent as it once was. I think the most engaging aspect of the case is Section 5 of the Voting Rights Act which questions the merits of the formula the law uses to decide what states and counties have to get permission before enacting new voter provisions. I think the Supreme Court will take the cowardly approach and strike down the Voting Rights Act rather than send it back to Congress as they should. The politicos in Washington would never vote against the Voting Rights Act, so the action of the court could give them the political cover they want. I’ve noticed that the Republican lawmakers are remaining relatively quiet on this issue.
I’m surprised that Justice Roberts thinks that the Voter Rights Act is no longer necessary because we have elected a black president and several black legislators. It’s never been about who gets elected; it’s always been about who gets to vote. Recently a legislator in Pennsylvania was caught on tape bragging about enacting voter ID laws would ensure a Romney win. Texas had their voter ID laws shot down because it was just a political gimmick since they could not prove voter fraud.
Striking down section five of the Voting Rights Act will not take us back to the days of Jim Crow because section two of the Act is a permanent part of the statute that prevents literary tests, poll taxes, or other types of shenanigans intended to suppress the minority vote.
I’m reminded of something I saw on a liberal blog after Justice Roberts sided with the liberals when he said that the Affordable Care Act was constitutional under the commerce clause. The blogger warned not to start singing the praises of Justice Roberts just yet, because affirmative action, DOMA and section five of the Voters’ Rights Act are on the docket, so there was still a lot of time for Roberts to reclaim his conservative bona fides.
Under normal circumstances, I would be left wondering how Congress would react to a strike down of section five of the Voters Rights Act, but with the makeup of the house, I’m pretty sure they’ll be some silent high fives. Perhaps the Senate could look at 2012 data and create a new formula and target districts that are known for their political shenanigans and then put pressure on John Boehner to bring it up for a vote. It’s a little premature, perhaps Justice Kennedy may wake up and want to do the right thing.