During February’s Supreme Court oral argument in Shelby County v. Holder over Section 5 of the Voting Rights Act, Justice Scalia characterized Section 5 as a “racial entitlement,” which would never be repealed. A few weeks ago, Justice Scalia defended his comments, explaining that while the federal government uses Section 5 to protect minority voting rights, it does not use it to protect white voters. Not surprisingly, Justice Scalia has provoked outrage from the left, which is waging a last ditch-effort intimidation campaign to preserve Section 5.
History professor Gary May, in “Scalia’s Limited Understanding of the Voting Rights Act,” continued this intimidation campaign in the Washington Post, ironically, by distorting history and articulating a particularly limited understanding of the Voting Rights Act. May tries to discredit Scalia by arguing that even today, the Voting Rights Act “protections extend to all Americans regardless of skin color,” citing the fact that its role in eliminating literacy tests and poll taxes in the 1960s enfranchised poor whites.
I too would be outraged if Justice Scalia had actually downplayed the Voting Rights Act’s crucial role in protecting minority voting rights in the 1960s, or if he thought that eliminating literacy tests and poll taxes helped only minorities.
May’s ridiculous insinuation that Scalia would allow a return to long-extinct voter-suppression methods obscures Section 5’s actual constitutional defects. Justice Scalia’s comments relate to the Department of Justice’s controversial enforcement of Section 5, which requires covered states to pre-clear all voting-laws changes with the DOJ or the United States District Court in D.C. This enforcement rarely involves voting practices that exclude minorities from the polls – the last twelve years has seen three cases – and such measures would be illegal in any case.
Instead, Justice Scalia’s controversial comments referred to the Department of Justice’s refusal to invoke Section 5 to protect white voters. As a March inspector general report explains:
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. . . .
As noted in Chapter 2 above, upon receiving a proposed voting change submitted by a jurisdiction covered under Section 5, the Voting Section reviews the proposed change to determine whether the change is free of discriminatory purpose and effect. In evaluating whether a proposed voting change has a discriminatory effect, the Voting Section examines whether a proposed voting change would leave members of a “racial or language minority group” in a worse position than they had been before the change with respect to “their effective exercise of the electoral franchise.” This discriminatory effect is commonly called “retrogression” or a “retrogressive effect.”
In both public filings and statements to the OIG, the Division has stated that it interprets the non-retrogression principle of Section 5 to be “race-conscious,” in that it does not cover White citizens when they are in the numerical minority in a covered jurisdiction. (citations omitted).
It’s worth noting, as Roger Clegg has, that the “retrogressive effect” standard itself has dubious constitutional merit, and repealing it would address selective-enforcement issues. Regardless, within the context described by the inspector general, Justice Scalia’s observations seem much more non-controversial—at least if you support equal protection under the law.
While May would have his readers believe that Justice Scalia’s position would hurt minorities, the DOJ’s Section 5 preclearance objections are the bigger culprit; the vast majority of these objections involve redistricting (39 out of 67 in 2009). The DOJ interprets Section 5 to require racially gerrymandered and segregated districts—districts with a majority minority population—instead of evenly distributing a minority population across the state. In practice, as Politico reported this week, this can hurt black politicians, who have difficulties transitioning from representing a majority minority district to representing a state. Even members of the Congressional Black Caucus recognize this:
The most painful irony in black politics is that the very legislation that has ensured African-Americans have a voice in Congress, the Voting Rights Act, now can act as an impediment to blacks attempting to climb the electoral ladder.
While black-majority districts all but guarantee African-American representation, they also have the effect of stamping the members, fairly or not, as simply representing black interests. It’s a less than preferable training ground for a politician who wishes to run statewide among a more diverse electorate. . . .
For years, black Democrats and white Republicans have, particularly in the South, struck a Faustian bargain of sorts wherein they agree to racially packed districts that ensure safe seats for all parties. It has meant longevity for many black politicians in the state capitols and Washington but done little to vault African-Americans beyond their homogenous districts to statewide office. . . .
Many CBC members, including civil rights pillars like Clyburn and Lewis, have concluded that district-packing is detrimental and stated that they’d be OK with representing more diverse districts.
The Left’s intimidation campaign will only intensify during the run-up to the Court’s decision. We will continue to hear desperate assertions about how striking down Section 5 would return our country to its racist past. Thankfully, if May’s weak op-ed is any indicator, these attacks will gain little traction with informed Court observers, and I remain hopeful that Section 5’s current formulation has seen its last days.