The New York Times today editorializes in favor of the constitutionality of Section 5 of the Voting Rights Act, which was argued before the Supreme Court yesterday.
The editorial early on asserts what is demonstrably false: “Without this provision, there would be no way to prevent new and devious efforts by local officials [the Times is especially offended by voter-ID laws] to block blacks and Hispanics from voting or to reduce their electoral power.” The are many other voting laws besides Section 5 — most prominently Section 2 of the Voting Rights Act — that protect these rights.
The editorial then argues that the Court must defer to Congress’s “extensive hearings” and its “mountain of evidence” when it reauthorized Section 5 in 2006. But Congress had made up its mind ahead of time that it was going to reauthorize Section 5 without regard to current realities; the hearings and record were just window dressing. It would have been politically untenable, because so politically incorrect, to do otherwise. (This point is also lost on the Washington Post, which also ran a misguided editorial this morning.)
Justice Scalia made this point at oral argument, noting the stubbornness of “racial entitlement.” The Times, like Justice Sotomayor yesterday, seized on this phrase to suggest that Justice Scalia disdainfully views simple nondiscrimination as a “racial entitlement.” But what he was no doubt referring to, as I noted below, is the fact that the principal use of Section 5 these days is to ensure the creation and maintenance of black- and Latino-majority districts through racial gerrymandering and segregation. That is fairly described as “racial entitlement.”
It is also flatly at odds with the ideals of the civil-rights movement. It would be an exaggeration to say that, from beginning to end, so is the Times editorial — but parts of it certainly are, and the rest is just dishonest and disingenuous.