There are few words that cut through the perennial story of American pride in its exceptionality, like “racism.” That one, ugly social system, propped up over our sordid history by institutional and ideological bulwarks of denial and ignorance, like Jim Crow, is part of the DNA of our country, away from which we are continually attempting to evolve. But just saying it’s over doesn’t end it. Seeing more minorities voting than ever doesn’t end it. Electing an African American president doesn’t end it.
Ask the people whose 2012 vote was protected by the Department of Justice denying attempt after attempt in states affected by Section 5 of the Voting Rights Act. The need for DoJ clearance and oversight is essential to implementation. That’s what makes the law “rational in theory and practice,” the loss of which, the plaintiff representing Shelby County, Alabama, in the case, argued Wednesday, should be grounds for overturning the preclearance called for in the disputed section of the VRA.
But Justice Antonin Scalia took that argument one step further, saying that since Congress didn’t reformulate the method applied in Section 5, that they did so not because it wasn’t necessary, but because they didn’t have the political stomach for it. He pointed to the declining number of nay votes for the VRA’s reauthorization over the years – from double digits in 1965 to zero in 2006 – and rather than attribute that to an evolving sensibility, he took the pompous, cynical route he is famous for, and blamed it on legislative entropy.
“I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement,” he revealed to the Court. “Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”
Rep. John Lewis (D-GA), whose horrible beating on the Edmund Pettis Bridge, in Selma, Alabama, during a 1965 civil rights march precipitated the passing of the Voting Rights Act, called Scalia’s words “unreal, unbelievable” and “appalling.”
“[T]hose of us who marched across that bridge 48 years ago, we didn’t march for some racial entitlement,” he told MSNBC’s Rev. Al Sharpton, Wednesday evening.
But Justice Scalia, not coy about where he stands on Section 5, was not wasting time figuring out what he would decide, as much as he was measuring the grounds upon which he could rest his opinion. He said he believed it was up to him and his fellow justices to do what politicians can’t be trusted to properly enact. “[T]his is not the kind of a question you can leave to Congress. There are certain districts in the House that are black districts by law just about now. …[T]hey are going to lose votes if they do not reenact the Voting Rights Act.”
“It’s not unusual for Justice Scalia to be provocative,” observed Dr. Andra Gillespie, an Emory University political scientist who specializes on race and politics. “And it reflects his general antipathy for race based remedies for past discrimination.”
In an email to Prose and Thorn, Gillespie explained what “the court will decide in this case is the constitutionality of the 1975 formula that is used in Section 5. Invalidating the formula would not necessarily eliminate preclearance entirely. Instead, it would require Congress to create a new formula that reflects contemporary voting disparities.” In that context, she said, “one could interpret Scalia’s phrasing as evidence of the fact that he doesn’t believe that the South should always be covered by preclearance provisions because of voting conditions in the region in the 1950s.”
Congressman Lewis, who was in the chamber during the arguments, told MSNBC that if the Court strikes down Section 5 of the Voting Rights Act, it would be “a dagger in the heart of the heart of the democratic process.”
But because it’s a “process,” the next generation of civil rights leaders is taking a pragmatic approach to the outcome of Shelby County v. Holder. “If the court chooses to strike down Section 5 of the Voting Rights Act, then we understand what our mission is,” Martin Luther King, III, told Politico, after the Supreme Court arguments. “Even if the court says it will stand, there still is work to do.”