THE COURT IN ACTION: We all know what Justice Scalia said about “racial entitlement.”  Now, hear also how Solicitor General Donald Verrilli responds:

By Gilda Daniels, Associate Professor of Law at University of Baltimore School of Law

One of the key discussions in today’s Shelby County v. Holder United States Supreme Court argument, a case challenging the constitutionality of Section 5 of the Voting Rights Act, was whether the “covered jurisdictions” still warrant federal oversight for voting changes.  Section 5 of the Voting Rights Act of 1965 requires “covered jurisdictions” (nine whole states-primarily in the South- and parts of seven others) to obtain approval from the federal government before it can implement any voting changes.  In the Shelby case, one of those jurisdictions argued that the coverage formula was outdated and that Congress should not have used it when it reauthorized Section 5 in 2006.  Bert Rein, who argued the case on behalf of Shelby County, started his argument stating “the South has changed.”  However, as Justice Sotomayor pointed out to Rein, “…some portions of the South have changed, your county pretty much hasn’t.”

Shelby County and other Section 5 covered jurisdictions, in spite of a changing South, continue to have more voting rights infractions than other parts of the country.  While Rein argued that the South no longer had poll taxes and literacy tests and thus should not be subject to Section 5, at least four justices seemed to disagree, arguing that “under any formula (standard) that Congress would devise Alabama would be covered”; so, would most, if not all of its counterparts.  At least four other justices seemed to argue that if other states have worse records in voter turnout and registration then “why wasn’t it incumbent on Congress ..to make a new determination of coverage?  Maybe the whole country should be covered,” Justice Alito pondered.

What is interesting to me is the assumption that because there are other wrongdoers that are not covered, Alabama, and states like it, should not be either.  Essentially, they obliquely argue that if those other states get to have worse records than Alabama on voter registration and turnout then the federal government should not “punish” it with Section 5.  It is perplexing to me how this is a viable states’ rights argument.  States do not have a right to act badly or to discriminate, particularly in the fundamental right of voting.  Congress has the constitutional power to propose and enforce legislation that protects citizens from discrimination.  Interestingly enough, Shelby County neither addressed nor attempted to defend its Section 5 record of noncompliance and discriminatory voting practices at any point during the argument.  It couldn’t.  It merely argued that “the South had changed.”

Everyone agrees that the South, indeed, has changed and progress in the area of voting has been made.  However, this progress has been made because of, not in spite of, the Voting Rights Act.  Section 5 is a preventative measure that deters discrimination and ensures that jurisdictions do not implement laws that discriminate against its minority citizens.  Remedial measures, like Section 5, even if considered extraordinary, are needed to protect the extraordinary democratic right to vote.  Section 5 is needed and covered jurisdictions require oversight to ensure that minority voting rights are not infringed upon. While some states may indeed have worse records, the protection that Section 5 provides in covered jurisdictions, like Alabama, is warranted. The assertion that some states are worse is not a rationale to eliminate Section 5; it provides a strong argument for its extension.

Finally, some justices had concerns that Section 5’s oversight would last “in perpetuity.”  Justice Scalia asserted that Section 5 served as a “perpetuation of racial entitlement(s).” Voting is an American entitlement and if Congress deemed it necessary to provide oversight in covered jurisdictions to protect that entitlement, I would think it very difficult for the Supreme Court to say otherwise, even if things have changed. 

Gilda R. Daniels is Associate Professor of Law at the University of Baltimore School of Law and the Former Deputy Chief of the US Department of Justice Voting Section.

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