Is This the End for the Core of the Voting Rights Act?

As the Supreme Court considers a new challenge to the 1965 Civil Rights law, questioning by conservative Justices suggests one of its central provisions may soon be struck down

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Evan Vucci / AP

People stand outside the Supreme Court before the start of a rally during arguments in the Shelby County, Ala., v. Holder case in Washington, Feb. 27, 2013.

At the Supreme Court argument Wednesday on the Voting Rights Act, Justice Anthony Kennedy – likely the deciding vote – had two potentially devastating words for those who want to see the landmark voting rights law upheld: “Times change.” It can be perilous to try to predict what the court will do based on the questions the Justices ask at oral argument. But those questions suggest that there may well be five votes — a majority — for striking down key parts of the act.

The Voting Rights Act was enacted in 1965 to ensure that black voters in the Jim Crow South were allowed to cast ballots. In the 48 years since, it has been a tool for the federal government to prevent states from racial gerrymandering — drawing district lines to stop minorities from getting elected — and election-day obstructions, like moving polling places at the last minute in minority neighborhoods.

(MORE: Will the Supreme Court Open the Door to Voter Discrimination?)

Conservatives have long been at war with the Voting Rights Act. They argue that it gives an unfair preference to minority voters, infringes on states’ rights, and is an abuse of power by Congress. The case the court is considering, Shelby County v. Holder, challenges a key part of the act: section 5, which requires all or part of 16 states to “pre-clear” changes with the Justice Department to ensure that they do not unfairly burden minority voters.

Going into the argument, the court’s four most conservative Justices were all-but-certain votes against section 5, and that seems just as true now. At the argument, Chief Justice John Roberts — who has expressed skepticism about the Voting Rights Act for decades — took up the line being pushed by Shelby County, Alabama: that the act unfairly puts a heavier burden on southern states (even though it also covers some northern jurisdictions). Chief Justice Roberts asked: “Is it the government’s submission that the citizens in the South are more racist than the citizens in the North?”

Justice Antonin Scalia — as is his wont — was less subtle. He called the act “a perpetuation of racial entitlement.” Justice Alito echoed Chief Justice Robert’s concerns, asking why Congress did not make a “new determination” about which states and localities should be covered. Justice Clarence Thomas did not ask any questions — his longstanding practice — but four years ago he voted to strike down the act, and it is all but certain he will again.

(MORE: How We Can Reform Our Elections)

The seeming solidity of those four conservative votes makes Justice Kennedy’s skeptical stance potentially decisive. At the argument, he said he saw the Voting Rights Act as “utterly necessary” in 1965, but it was now “not clear” to him. He added: “The Marshall Plan was very good, too — the Northwest Ordinance, the Morrill Act – but times change.”

The court’s four more liberal Justices used their questioning to underscore the reasons why the act is still needed – and why Congress had ample constitutional authority to enact it. Justice Sonia Sotomayor told the lawyer for Shelby County that even if parts of the South have changed “your county pretty much hasn’t.” Justice Stephen Breyer compared the racial discrimination that created the need for the act to a disease, and said that things may have changed to some degree “But we know one thing: the disease is still there in the state.” All these four liberal Justices can do without a fifth on their side, however, is write a dissent.

Cases do not always come out the way they appear headed in oral argument. Justice Kennedy, or one of the other conservative Justices, may ultimately balk at striking down a key part of a revered civil rights law that has been enacted repeatedly by Congress with bipartisan support. In the end, the court may use this case to give the Voting Rights Act a ringing endorsement. But right now, that is probably not the smart bet.

MOREHow to Solve the Voter ID Debate

77 comments
AnthonyMcMillan
AnthonyMcMillan like.author.displayName 1 Like

The right has been going after this legislation for years becasue without it, interferring with elections becomes easier. Overt racism exists on all sides of the aisle and in society itself, however the rights insistence that this legislation be cut down is hardly in our "best interest". The republican party has tried almost everything esp. during the last presidential election to get minorities to stop voting because they almost always vote with the democrats. By creating "voter right" laws that do anything but protect voters to actually having people standing outside polling places to avert voters away, its pathetic and sad that the right has stooped to such cowardly ways to try to win a election. The Surpreme Court has been almost equally damaging with the "Corporations are People" agenda that has been signed into law, allowing corporations, some outside the country to dedicate uncontrolled amounts of money toward a election, ensuring that the american people have even less control of the govt. then at anyother time in history. I hardly expect them to act otherwise, unfortunately. Perhaps the surprieme court should revisit whether surpreme court justices should have "lifetime" appointments. Hell now would be my answer.

rohit57
rohit57 like.author.displayName 1 Like

"Justice Alito echoed Chief Justice Robert’s concerns, asking why Congress did not make a “new determination” about which states and localities should be covered."

This is a very important point.  Suppose that an examination is given at a certain date, most students pass but a few fail.  OK, fine, some pass and some fail.  Several decades pass and the same exam is given to the same students, and miracle, EXACTLY the same students fail.

 This is mindboogling.   And note that two of the nine states covered have non-white governors, one has a black senator, and the country has a black president.  None of this was true in 2006, let alone 1965.

 So "times change".   But I suspect that the liberal habit of describing everyone who disagrees with them as racist, will not change.

Adenah
Adenah

@rohit57 What does 2 Black Govenors, a Black Senator out of 9 States & a Black Prez have to do with County officials doing everything in their power to disenfranchise voters, gerrymander districts and otherwise illegally influence the right to vote?

rohit57
rohit57

@Adenah @rohit57 Voters can be disenfranchised  in Ohio, or Pennsylvania or New York.  When that happens, then remedies must be applied.  It is no longer proper to prejudge the issue for a particular group of six states based not on what they have done but based on what we think they might do.

If Congress wants to write a new law based on the reality NOW, they are welcome.  But the current law was out of date.

Also, I know particular cases of non-citizens voting.  This is not something invented by Republicans.

mrbomb13
mrbomb13 like.author.displayName 1 Like

Just like affirmative action, the Voting Rights Act is an obselete piece of federal legislation.  Both pieces served their purpose when overt discrimination existed in society, and racism was prevalent across many segments of society.

kramartini
kramartini like.author.displayName 1 Like

The real reason for Section 5 has nothing to do with racism in the South generally, but with real or perceived racism in Federal courts in the South.

After all, Section 2 of the Voting Rights Act makes discriminatory voting changes illegal in ALL states, Those suffering from discrimination can sue in local Federal courts and seek relief. Furthermore, if a state or smaller jurisdiction repeatedly defies the Federal court, it can be sued under Section 3, and could be forced to preclear all future voting changes in a manner much like Section 5 does today.

By contrast, states covered by Section 5 must bring suit in a Federal court in Washington, DC, not locally. This was needed in the 1960's because many Federal judges were segregationist and could not be trusted to provide equal justice in voting matters.

Today, Federal judges in the South are no different than those elsewhere, and they all take voting rights seriously. Thus, Sections 2 and 3 are sufficient and there is no reason for Section 5.

SanMann
SanMann like.author.displayName 1 Like

Now that an African-American is president of the United States, on what basis is the Voting Rights Act still valid? Is it meant to be continued for perpetuity? I'm Asian and not black, and so I want to know if African-American voting rights are the automatic litmus test for rights in America. Hispanic Americans now outnumber African Americans in the US. So is the shadow of Jim Crow supposed to dominate political thinking and policymaking forever? Or hasn't this simply degenerated into another form of political pandering?

DBritt
DBritt like.author.displayName like.author.displayName 2 Like

@SanMann The voting rights act doesn't apply just to African Americans.  And I don't see why Obama being president is relevant.  If a company that has been around for decades hires its first female CEO does that mean there is absolutely no gender discrimination anywhere down the line?  Your logic is wanting.

rohit57
rohit57 like.author.displayName 1 Like

@DBritt@SanMann "And I don't see why Obama being president is relevant."

Because it proves that the US of 2013 is a different country from the US of 1965.

Next question!

tesmith47
tesmith47 like.author.displayName 1 Like

@rohit57 @DBritt  

i would bet that all of the folks here that want to repeal this law are young white folks who dont really know the depths of anti black sentiment in a lot of white americans (not all),  the evil they have done and want to do to black folks

rohit57
rohit57 like.author.displayName 1 Like

@DBritt @rohit57 You make decent points, but it is impossible to solve any problem 100%.   And you cannot always solve problems by passing laws.  If a situation is sufficiently egregious, then you may need a law.  If the situation is sort of bad, but sort of not bad, then you may have to decide whether having a law is the best way to solve the problem.  A law usually has some undesirable side effects, and so having the law makes sense only if the benefit from reducing a problem exceeds the cost of side effects.

That is a judgment call and it is fine with me if the Supreme Court makes it.

But tell me this.   The law was enacted in 1965 and extended five years at a time until 2006 when it was extended for 25 years.  Why the sudden increase from 5 to 25?  Was the situation in 2006 WORSE than the situation in 1965?

Makes no sense unless you realize that it is all politics and posturing.  Somuething happened in 2006, and the senate voted 98 to 0 to extend it.  Why?  I am curious and would prefer NOT to get a partisan answer.


DBritt
DBritt like.author.displayName like.author.displayName 2 Like

@rohit57 Of course the country is different, but different isn't enough.  You have to show that there is equal access to voting for all the relevant groups.  That takes quite a bit more doing that pointing out who the president is.  As in my analogy before, having a female CEO doesn't mean a company has no gender discrimination at every level.  So there's your "next question."

SanMann
SanMann

@DBritt,

Not, it's your logic that's wanting. This act singles out particular states or regions, and exempts others. Are you going to seriously claim that a particular situation which existed in the 1950s will remain static and unchanged forever? It was rightly noted that the states singled out in that act now have higher voter participation rates from the "special groups" (note that neither Hispanics nor Asians were mentioned, and only the special litmus test group, blacks).

What about its impact on protection of local sovereignty from unwarranted Federal infringement?

Why all the emphasis on preserving this one act, when it's well known that colleges and universities are legally able to discriminate against Asian American minorities in favor of larger groups like whites and blacks? Just imagine, I as a minority will be given a harder time getting into a university of my choice just because of my skin color - and actually, my skin color is exactly the same as Obama's, but it's just that I'm not from his legally privileged ethnic group.

What hypocrisy - it's not credible at all.

SanMann
SanMann

@tesmith47.

Ohhh, really now? So you're from a special minority, are you?A minority more special than all others? Reminds me of that line from Orwell's Animal Farm, that "all animals are equal, but some animals are more equal than others"

And we really ought not to forget Orwell, when considering how some well-intentioned ideas with populist appeal can easily go awry.

tesmith47
tesmith47

@SanMann @DBritt  

you are disingenuous, at best.

there have never been codified national, state and local discrimination against your or your ilk 

rohit57
rohit57 like.author.displayName 1 Like

@DBritt@SanMann "Evidence of unequal access to the polls is still widespread.  Unchanged forever?  No.  Still a huge problem?  Yes. "

I would not call it a "huge" problem.  Also I live in New York, and I had to go twice to the polls to be able to vote, there were such long lines the first time.  Indeed there were long lines the second time as well.

Voting should be easy and convenient for all Americans, and it is silly to make it a race issue.   As for IDs, I think they SHOULD be required, but that the states or the federal government should subsidize voter IDs for those whose means are small or who live far from a place where IDs are issued.

This is the 21st century and ALL Americans should have picture IDs.  Suppose you live in Alabama and your sister in Montana has a heart attack.  You need to fly to her.  But you cannot board and airplane without an ID.

So, are you going THEN to go and get an ID?  You need to get on that flight to go see her, RIGHT AWAY.


DBritt
DBritt

@SanMann You've brought in a bunch of points that are extraneous to my post.  I made two claims:

1. The VRA doesn't only apply to African Americans.  I didn't apply any logic there, it's simply a fact.

2. Obama being president is not evidence that discrimination has evaporated from our society.  Here I did apply logic, and I don't think you'll be able to defend your original point.

I didn't say anything about singling out one region.  I didn't say anything about universities.  You are making assumptions about my beliefs and challenging the logic you see behind them.  I am not responsible for any hypocrisy you fabricate and try to stick on me.  Your logic as regards the fact of an African American president is clearly wanting, and I'd be curious whether you defend it, and if so, how.

Now, let me make some other statements to take the place of the ones you've fabricated for me.

1. In case you're curious to know, I do agree with you that the regional double standard is absurd.  The act should be universal!

2. Regarding progress between 1950 and now: clearly there has been progress, but there remains far to go.  Evidence of unequal access to the polls is still widespread.  Unchanged forever?  No.  Still a huge problem?  Yes.  You need only look as far as the proposed changes that have been struck down under the VRA in recent history.  I only wish similar changes in regions not subject to pre-approval had been struck down as well!

3. Regarding federal infringement of local sovereignty, this is a matter of priority.  To me, the single most important priority in a democracy is that everyone who wants to vote be able to vote.  That value supersedes any sovereignty claim by one part of the government over another.  Perhaps your values are aligned in a different way, and I'd be curious to hear your thoughts on that.  But I don't see how denying a population the vote, whether by confusing ballot language, last-minute changes to polling times or locations, or multiple hour waits at the polls can be tolerated in a democracy.  Any state that allows that *deserves* to have its sovereignty interrupted by the federal government.

I won't address affirmative action, as there's only so big a scope we can have in an online discussion and it is a complex issue.  That's not to say the issue isn't important, but it's not before the supreme court at present and the VRA is.

kamikrazee
kamikrazee like.author.displayName 1 Like

The truth is that gerrymandering of all sort, manner and means can and will occur everywhere, not just in the south, for all types of reasons, its just that the south has a tradition of doing it for racial reasons.       The danger that is seen by its past and possibly future victims is that a Supreme Court decision now will make it so much harder to rectify should it happen again.    The remedies applied in the past need not be universal to the 50 states when the specific issue was localized in a very few states.    This should be addressed by the administration and Congress, (but we know how well they work together), rather than the Court.


lfrankel520
lfrankel520

Is the core of the Act the ability to make sure all actions related to voting can be challenged in court or is the heart that 14 states are permanently racists and have forfeited the right to determine their election laws and boundaries?  The story led me to believe the latter even though I would hope the intent of Congress was the prior. 

MyronB.Pitts
MyronB.Pitts like.author.displayName like.author.displayName like.author.displayName 3 Like

Times do change, but the most cursory glance at the comments section for any website in America shows that racism is still alive and well. Behind the cloak of anonymity, people's real feelings come out. So racism remains; the question is whether it is still broad enough and deep enough to make a difference in whether a well-qualified black candidate can win. Obama's election would suggest no. That the Senate has just two blacks -- both appointed -- suggests yes.


rohit57
rohit57 like.author.displayName 1 Like

@MyronB.Pitts You might have pointed out that one of the two  black senators is from a "racist" state.  Shouldn't some northern states which have NEVER had a black senator be covered by the VRA?

Kasirith
Kasirith like.author.displayName like.author.displayName like.author.displayName like.author.displayName 4 Like

Well if they're so worried about calling out certain states, then we should just make ALL states require justice department approval. Racism is still rampant in this country, as the fact this came up at all proves.

rohit57
rohit57

@Kasirith The Justice department is usually under the control of one party or another.  Counting on their neutrality is a mug's game.

JasonBras
JasonBras

one could make a claim that "urban voters" are gerrymandered to ensure a liberal/democrat outcome too. 

MyronB.Pitts
MyronB.Pitts

@JasonBras That's not just a claim. That's what happens and how many states satisfy the Section 5 requirement, by creating black super-majority districts. 

JasonBras
JasonBras

@MyronB.Pitts @JasonBras i am not disputing that.  i tried to use milder statement to cool the heat so that everybody can get along... ala Rodney King.. i am also thinking, i have been voting all my life...how does my vote improve our country?  we sure have the best "democracy" money can buy... but our country's infrastructure is like Brasil, Argentina (i.e. 3rd world) behind China, SE Asia (ranked 20 spots BEHIND asia).  how our children are educated to compete (we are ranked #27, way behind Korea, Taiwan, Singapore, Shanghai, although we sure have the best football, basketball players the world ever known). how we are to pay back the debts accumulating at $1.4 trillion every year.  i hope SCOTUS come to a ruling on these....... may be not... 

droid4alex
droid4alex

If the time to make everything TRULY equal is not now, then when is it? Imho, the time is long past. It is less compassionate to do otherwise, even though that may be the intent.

killroy71
killroy71 like.author.displayName like.author.displayName 2 Like

So, just by levelling the playing ground for minorities, the South views that as a unfair advantage to minorities? Then I think the answer to Roberts' question is, "Yes, the South is more racist than the North."

SanMann
SanMann

@killroy71 ,

By what metric are you judging what constitutes a level playing field? Just whatever your own imagination decides? I'm Asian and not Black, so I want to know if the Voting Rights Act will give me any special consideration if I'm living in a Catholic majority area, or something like that. Why only single out the South? It seems to me that some want to preserve the Voting Rights Act because they want to preserve a lopsidedness that they can politically capitalize on. It's no longer the 1950s and people have moved on, so why keep trying to dredge up the past to make political hay out of it?

tesmith47
tesmith47 like.author.displayName 1 Like

@SanMann @killroy71 WARNING!! WARNING!! SANMANN  is starting to sound like a troll.

just what sort of asian are you, are you a 1st generation?  have you  or your community ever been discriminated against in elections?

JasonBras
JasonBras like.author.displayName 1 Like

@killroy71 not really.  the WHOLE country is racist.  just that the south is more GOP, the north is more Democrat.  just one evidence for your to ponder.  whereas 25% of the country is hispanic, 20% is black, you do not have this racial mix in the white house even with a black president.  in fact, there is fewer "minority" cabinet secretary under Obama than under Reagan, Bush 1, Bush 2.  this is a WHITE COUNTRY

AaronCohn
AaronCohn

@killroy71 Roberts suffixed his question with the observation that blacks vote in much greater numbers relative to whites in MS than in MA.

droid4alex
droid4alex

Times DO change. Affirmative action once made sense from a compassionate point of view. That hasn't been the case for a long time. It's more compassionate to give everyone the same chance, and let competition be the deciding factor, as it will lead to smarter students and improved quality of life in the long run. It's time to make everything truly equal. At this point, that is actually the most compassionate thing to do. If it's not time now, then when?

tesmith47
tesmith47

@droid4alex compassion has nothing to do with it damn it!!! justice and law DEMANDED  civil rights laws!! most black families were here 200 years before most of the european immigration . blacks deserve and DEMAND the power and protection of american ideals.

MyronB.Pitts
MyronB.Pitts like.author.displayName like.author.displayName 2 Like

@droid4alex But is competition the deciding factor? That's the question and many would say no.

nunyabiz
nunyabiz like.author.displayName like.author.displayName like.author.displayName 3 Like

@droid4alex 

Exactly.  And the point of this law is to control those who are in positions of power and using that power to create situations where everybody isn't treated fairly - those who employ such power to perpetuate the discrimination.

rohit57
rohit57

@nunyabiz @droid4alex OK, but Nikki Haley just nominated a black man to the senate and she herself is not white.  So is she one of the "people in power" whom you do not trust?   And if so, why?

rohit57
rohit57

@nunyabiz @rohit57 @droid4alex Those who are "subject to the laws" do not reside ONLY in the 9 or 14 states covered by VRA.  I know of plenty of corrupt politicians, even some in my own state of New York.  So I see no reason to sneer at the South.

nunyabiz
nunyabiz like.author.displayName like.author.displayName 2 Like

@rohit57 @nunyabiz @droid4alex 

My opinion of Nikki Haley is completely irrelevant.

The states in question have been under regulation because of long-term demonstrated bad practices.  Even when those bad practices were occurring, there is no doubt that you could have pointed to a small number of individuals who were upstanding citizens who were trying to do the right thing.  Being able to point to a few examples of people doing right doesn't mean anything about whether the law needs to be in place to control the actions of those who want to employ their power in nefarious ways.

To draw a parallel in a different category, we have anti-corruption laws in place to curtail political corruption.  It doesn't matter that there are a few politicians who are of such moral character that they would never be tempted - all are subject to the laws.

t*
t*

From the article... Justice Sonia Sotomayor told the lawyer for Shelby County that even if parts of the South have changed “your county pretty much hasn’t.”  Sounds to me like Sotomayer is the racist here.

tesmith47
tesmith47 like.author.displayName 1 Like

@t* NO, SHE JUST POINTED OT THE FACT THAT ANYONE CAN SEE--------  IF THEY WANT TO

AaronCohn
AaronCohn

I certainly hope it is the end.  The Holder inJustice department has been abusing the VRA as an excuse to prevent needed reforms such as voter ID laws.  I have to cough up an ID to buy sudafed at the drug store or board a jumbojet.  Surely that's not too much of an imposition for voting.

DBritt
DBritt like.author.displayName like.author.displayName 2 Like

@AaronCohn Voter ID laws disenfranchise thousands of people.  However, the lack of voter ID is only linked to a minute number of voter fraud cases.  Don't we want the vote to represent more of the country and not less?  Asking a voter for identification isn't legal in many areas, and it should be illegal in all.

rohit57
rohit57

@DBritt@AaronCohn "Asking a voter for identification isn't legal in many areas, and it should be illegal in all."

So you need an ID to take a book out of the library.  You need an ID to cash a check at your own bank.  And you need an ID to board a plane or even to board an Amtrak train.

But you do NOT need an ID to decide who will have his finger on the nuclear button?

Is that less important than checking a book out of the library?


tesmith47
tesmith47 like.author.displayName 1 Like

@rohit57 @DBritt @AaronCohn the fact of the matter is that most americans dont vote at all, and the amount of fraud is vanishingly small. even the southern states that were screaming the most about fraud cannot  show any percent of fraud.

rohit57
rohit57

@DBritt@rohit57"You do not need an ID to be a participating member of a democracy.  That is a human right."

I guess I am naturally suspicious when someone says "is a basic human right" when what is true, and what they should be saying is, "it is a good idea."

Here is an amusing story from Boston University's Mugar library.  The library had two parts, one part restricted to faculty and graduate students, and another part open to all.  The second part did not require an ID, but the first part did.

At some date the university decided that access to the entire library was a "basic human right."  So what happened?  Research materials started to disappear and could not be replaced.  So now the university required IDs for the entire library!

It is a mistake to have too many "basic human rights."   Obviously, voting in an American election cannot be a basic human right since it is restricted to US citizens over the age of 18.  Lots of humans, several billion such humans, do NOT have the right to vote in an American election.  Even permanent residents with green cards do not have the right.  Neither Ahmedinejad nor DSK had that right when they were in New York.

DBritt
DBritt

@rohit57 Oops, "some time" should read "some tiny."  Wish they let you edit.

DBritt
DBritt like.author.displayName 1 Like

@rohit57 That's exactly right.  You do not need an ID to be a participating member of a democracy.  That is a human right.

The problem is that you're thinking in principle and not in practice.  In principle, yes, you don't want people voting multiple times.  However, in practice not checking ID does not lead to voter fraud in any significant amount.  There is some time percentage change in the vote.  However, requiring voter ID leads to the disenfranchisement of thousands of voters.  Based on the data (not on principle) you will have a more accurate election outcome by not requiring voter ID.  So when you worry about who has their finger on whatever button, just remember that in *practice* voter ID doesn't work.  It's a failure.  This has nothing to do with party politics, it just has to do with data.

You bring up an interesting point in your next post.  I wonder what the percentage is.. it can't be high :)  It won't take you long to figure out that I align with Democrats much of the time and Republicans.. basically never.  But I do generally base my positions on data and practical considerations rather than abstract principle.

rohit57
rohit57

@DBritt@AaronCohnWhat has happened is that partisanship and interparty hostility have reached such a high level that Democrats automatically oppose anything the Republicans like, no matter how sensible.  And similarly, Republicans automatically oppose anything the Democrats like, no matter how sensible.

 We should have single payer health care in the US and we should have IDs required to vote.

But what proportion of Americans believe both things?  .01%?

MyronB.Pitts
MyronB.Pitts like.author.displayName like.author.displayName like.author.displayName 3 Like

@AaronCohn Explain to me what's "needed" about Voter ID laws, when exhaustive studies show that the problem they are meant to address is statistically speaking, almost nonexistent?