Voting Rights Act on Trial

This past Wednesday the Supreme Court of the United States (SCOTUS) heard oral arguments surrounding the Voting Rights Act. For those of you who don't know this particular law, it was enacted in 1965 to battle racial discrimination at the voting booth. The act functions such that the government can be held liable for abridging a person's right to vote based on their "race or color." Section 5 of the act states:

"Whenever a State or political subdivision with respect to which the prohibitions set forth in section 4(a) are in effect shall enact or seek to administer any voting qualifications or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure."

To some or many of you that is probably just a bunch of legal jargon; but to summarize very briefly, any changes in voting laws in states/counties that are demonstrated to have a history of voting discrimination based on race are required to have such laws approved by the federal government and if the state/county does not get the law approved then no person is legally bound to follow said law. Some places that have been identified are: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia. Certain counties in California, Florida, New York, North Carolina and South Dakota, and some communities in Michigan and New Hampshire have also been identified and are covered by Section 5.

The suit brought to the Supreme Court on Wednesday challenges this section of the Act and its constitutionality. The argument brought forth is that there is no need for such provisions and approvals in the modern world. Those backing the suit like to point to President Obama's election and re-election as evidence that there is no need for laws that address racial discrimination.

Justice Anthony Kennedy, stated in oral arguments "The Marshall Plan was very good, too -- the Northwest Ordinance, the Morrill Act -- but times change," seemingly implying that such plans are no longer needed. Other Justices seemed to agree with Kennedy on this. Chief Justice John Roberts asked Solicitor General Donald Verilli, whether or not the governments position was one that Northern states were 'less racists' than Southern ones. Roberts seemed to be addressing the fact that most of the places covered by the law are in the South. In addition to this Justice Antonin Scalia implied that the law was one that promotes "racial entitlement."

The case has been brought to the court by Shelby County, Alabama. I think it is very important to not that this is not a place where the law would not do some good. Ryan Haygood, a lawyer with the NAACP Legal Defense Fund and part of the team of lawyers on the case, had this to say concerning Shelby County, "The absence of distinct geographic districts –- which often cluster voters by both race and class –- made it virtually impossible for the state’s growing black and Latino populations to ever win city-wide elections for seats on hundreds of county commissions and city councils, school boards and water districts." Haygood continued saying, "Shelby County was and is the very kind of place for which the Voting Rights Act was written."

Justices Sonya Sotomayor and Elena Kagan took note of this on Wednesday. Sotomayor stated, "Some parts of the South have changed. Your county pretty much hasn't...You may be the wrong party bringing this." Justice Kagan added, "Under any formula that Congress could devise, it would still capture Alabama."

Problems aren't only limited to Alabama however. Matt Barreto, a political scientist at University of Washington, says anyone willing to look will find plenty of reason that Shelby county and others covered by section 5 should stay covered. Barreto, along with other academics, compiled data on Section 5 and non-Section 5 communities from 2008, 2010, and 2012 (where available). Using this data they submitted a document to SCOTUS outlining their findings. They found multiple indicators of socioeconomic disparities and racially polarized voting in communities covered by Section 5. The data shows that disparities have shrunk since 1965 but are still far greater in such communities than in non-Section 5 states and communities.

Despite this and many other recent cases where Section 5 has been clearly needed (and used) many theorize that the court will vote 5-4 to strike Section 5. The court has questioned leaving such cases of discrimination to Section 2 of the act. Section 2 however, can only be used in an after-the-fact fashion, whereas Section 5 functions as a preventative measure. Furthermore, the court has even questioned whether or not Section 2 is needed when they questioned whether or not the such laws are even need in 2013. This has left many to wonder if they may vote to strike both sections, instead of just the one.

To read more on what SCOTUS said on Wednesday click here.
To read more on the Voting Rights Act and voting problems in general click here.