The vote over whether to overturn Section 5 of the Voting Rights Act will likely be 5-4. Justice Kennedy (seated, second from right) will likely be the swing vote that decides whether the law should continue to acknowledge racism in America. PHOTO: Wikipedia
The Supreme Court began hearing arguments today for Shelby County v. Holder, a case that may well strike down a central provision of the Voting Rights Act known as Section 5. The Voting Rights Act is a crowning achievement of the civil rights movement, providing broad protections for minorities' ability to vote, and Section 5 has served as the watchdog over the elections of our country's most blatant offenders of racist electoral practices. Section 5 demands that any electoral changes in nine states, and in parts of seven more be reviewed by the Department of Justice for how they affect minorities. With party preference correlating well with race in much of the South, whites have been able to maintain a de facto hegemony over minority voters through discriminatory gerrymandering and voting restrictions, and Section 5 is meant to ameliorate that.
Shelby County, a suburb of Birmingham, Alabama, is challenging Section 5 of the Voting Rights Act after the Department of Justice called off an election in the town of Calera for violating Section 5.
Though the Voting Rights Act was renewed in 2006 in the Senate, 98-0, and the House, 390-33, the Supreme Court looks poised to strike it down by a margin of 5-4. To Justice Antonin Scalia, the near-universal support for the Voting Rights Act is actually a point against it. It might be worth reading that last sentence again. Here's Justice Scalia's "reasoning":
“The Israeli supreme court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there.”
Scalia probably should have maintained his rule of not citing foreign law (or remembered that he was confirmed by the same 98-0 margin). Scalia turned heads today when he called Section 5 "a perpetuation of racial entitlement." This is sadly ironic, because that's exactly what striking down Section 5 would be.
Unfortunately, Scalia is not the only one expressing skepticism of the Voting Rights Act. Justice Anthony Kennedy, the conservative-leaning swing vote on the court expressed distaste for the old formula to determine which states were covered, and instead suggested (it seems) that no true formula be used, when he said that if Congress was going to single out certain states, "it should do it by name."
Justices Scalia, Thomas and Alito seem like sure bets to vote to strike down Section 5 of the Voting Rights Act, and Justices Ginsburg, Breyer, Sotomayor and Kagan are likely to vote to uphold the Voting Rights Act. It will come down to Kennedy and Chief Justice Roberts, who I normally wouldn't include on the swing list, but since he voted to uphold Obamacare, he's officially a wild card. Still, it was ultimately Justice Roberts' decision to hear this case in the first place, which has to make one skeptical that he would vote to uphold Section 5.
The arc of history bends toward justice, but if the Supreme Court overturns Section 5 of the Voting Rights Act, that arc may get less smooth for a while.