Quite a bit is being made — starting with Justice Sotomayor at the oral argument — of Justice Scalia’s statement that Section 5 of the Voting Rights Act is likely to be reauthorized by Congress in perpetuity because that’s the way it is with all “racial entitlement” programs. The transcript of the oral argument is available here – Justice Scalia’s statement is on page 47, and Justice Sotomayor’s reaction to it on page 63.
Pace Justice Sotomayor, I don’t think that Justice Scalia meant that the “right to vote” is a racial entitlement — duh. Rather, I think he was adverting to the fact that Section 5 guarantees not just nondiscrimination but, in key respects, special treatment on the basis of race. The most obvious is the creation and maintenance of racially identifiable districts — indeed, the principal use of Section 5 these days is to ensure this sort of racial gerrymandering and segregation, as Joshua Thompson and I discussed in a Bench Memos post earlier this week. More generally, as we also discussed, the combination of a preclearance requirement and an “effects” test guarantees that voting practices that have a racially disproportionate effect will be blocked, even if they further legitimate ends and are nondiscriminatory by their terms, in their intent, and in their application. All of this is fairly described as “racial entitlement.”