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Justice Department’s Inspector General Proves Justice Scalia Was Right



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It created an uproar in some quarters. As I pointed out previously, last month, while hearing oral arguments on a case concerning Section 5 of the Voting Rights Act, Justice Antonin Scalia observed that, “whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.” 

His characterization of Section 5 as a “racial entitlement” sent some on the left into a tizzy. Yet a March 12 report from the inspector general (IG) of the Department of Justice (DOJ) shows that Scalia was right.

The case before the court was Shelby County v. Holder. Shelby County, Ala., is challenging the continued constitutionality of Section 5 — an “emergency” provision of the 1965 Voting Rights Act that was supposed to last only five years. Section 5 requires certain covered jurisdictions (mostly in the South) to get approval from the federal government before making any changes in their voting laws. The conditions that justified this extraordinary intrusion into state sovereignty in 1965 have long since disappeared. 

In “A Review of the Operations of the Voting Section of the Civil Rights Division,” the IG reports that: “The Civil Rights Division’s current leadership has stated that it interprets the ‘retrogressive effect’ test under Section 5 not to be applicable to White voters who are in the numerical minority in a particular jurisdiction.” In short, the Voting Section believes Section 5 protects minority voting rights—unless that minority is racially categorized as “White.”

The report quotes Thomas Perez, the assistant attorney general for civil rights (recently nominated to become the secretary of labor) as saying, “Interpreting Section 5’s retrogressive-effect standard to not cover White citizens was consistent with the Division’s longstanding practice, as well as case law interpreting the provision and the intent behind its enactment.” Perez also told the IG that “he believed interpreting the retrogressive-effect prong of the analysis to cover White citizens would be inconsistent with the history of and intent behind Section 5, which he stated was enacted to remedy the specific problem of discrimination against racial minorities.” Perez claimed that a series of Supreme Court opinions “has consistently recognized that Section 5 was enacted to deal with a particular historical problem of racial discrimination against minorities.”

But the Supreme Court has never said that Section 5 protects only racial minorities. Similar claims were made about Section 2 of the Voting Rights Act when the Bush administration prosecuted local black officials in Noxubee, Miss., for blatant racial discrimination against white voters. As the federal district court ruled in that case, “Section 2 provides no less protection to white voters than any other class of voters.” 

Mr. Perez may believe that Section 5 does not protect Americans who happen to be white, but Section 5 actually says that a change in election law in a covered area can only go forward if it “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color.” (That is the retrogressive effect test.)

On its face, then, Section 5 protects the right to vote for all Americans, no matter what their race. 

Certainly, in 1965 the principal voting-rights problem in America was invidious discrimination preventing African Americans from voting. But 50 years later, African-American voters constitute a voting majority in some jurisdictions, and Section 5 should protect the voters who are in the minority in those jurisdictions, too. 

The key point is that all Americans have the same right to vote and all deserve equal protection under the law to exercise that right, regardless of their race.

But the head of the Civil Rights Division (and labor secretary nominee) clearly thinks Section 5 guarantees only the voting rights of non-whites — making Section 5, in essence, a right based on race. There’s a term for that:  a “racial entitlement.”

Justice Scalia hit the nail on the head. Assistant Attorney General Perez’s statement proves that this administration applies Section 5 as though it were a racial entitlement for certain minorities, instead of a statute assuring the right of all eligible Americans to vote, regardless of their race.



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