Justice Antonin Scalia shocked liberal sensibilities during oral arguments in the recently decided Shelby County, Alabama v Holder voting rights case. Providing his analysis of the 98-0, 2006 Senate vote to reauthorize the Voting Rights Act (VRA) for an additional 25 years, Scalia said:
Now, I don’t think [the lop-sided vote] is attributable to the fact that it is so much clearer now that we need this [law]. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.
In short, Scalia was suggesting that no politician in his right mind would vote AGAINST a law entitled the Voting Rights Act as charges of racism would begin immediately and threaten to destroy his political career. Never mind the senator in question might be completely justified in opposing outdated and unconstitutional sections of the Act. Scalia’s conclusion: justice in this instance would depend upon the courts.
But “perpetuation of racial entitlement?” George Soros’ left-wing Think Progress website wrote “…there were audible gasps in the Supreme Court’s lawyers’ lounge…” when Scalia’s statement came over the room’s audio system. Surely, the Justice was not suggesting that the Voting Rights Act had created or sustained some sort of inherently unfair, electoral advantage for minority voters!
Well, that’s exactly what Antonin Scalia was suggesting. And though the left obviously finds no fault in it, that’s what the VRA has been doing for decades.
The Voting Rights Act requires certain states and jurisdictions to obtain pre-clearance from the DOJ or the DC Circuit Court prior to making any changes in their voting policies or procedures. In 2000, the Supreme Court decided Reno v Bossier, a case in which Janet Reno’s Department of Justice had denied pre-clearance to the Bossier Parish, Louisiana School Board, which had been required to redraw Parish voting districts as a result of changes in the 1990 census.
The plan offered by the School Board was a duplicate to the redistricting plan submitted to the DOJ by the Parish governing body a short time earlier. That plan had been accepted by the Justice Department, and the pre-clearance requirement was satisfied. But the DOJ denied the School Board plan. The reason?
The local NAACP office had presented an alternative plan to the Bossier Parish School Board that would have created 2 majority black voting districts. In order to accomplish this objective, it would have been necessary to split 46 of the existing voting districts 65 times, fracturing state election law by gerrymandering precincts throughout Bossier Parish.
It was the Board’s refusal to adopt the NAACP offering that prompted the DOJ to reject the School Board’s redistricting plan. For it was the DOJ’s contention that merely preserving existing minority voting strength—which the School Board plan did—was not enough. Rather, it must be incumbent upon all bodies seeking pre-clearance to “…maximize such voting strength according to a hypothetical ideal.”
In short, it is not enough that the 9 states and numerous jurisdictions subject to DOJ pre-clearance rules see to it that minority voters are treated fairly. Rather, they must be virtually guaranteed the electoral success of preferred candidates and ballot issues! It is the only way in which new election law—Voter ID laws, for example—may be instituted.
The Supreme Court agreed with Bossier Parish, ruling that the DOJ could NOT “…deny pre-clearance to local redistricting plans that maintain minority voting strength, even if they do not maximize such voting strength according to a hypothetical ideal.” But how many jurisdictions have not sued the DOJ over the 50 years in which the Voting Rights Act has been in effect? How many have been intimidated into making certain that minorities have their way at polling places across the nation?
The left has good reason to demonize the Court over its 5-4 decision in Shelby County v Holder. After all, with the VRA selection process for pre-clearance ruled unconstitutional, 9 states and dozens of jurisdictions in 7 others will at last have an opportunity to run honest elections. And nothing does more damage to the left than an honest election.
Photo Credit: kenudigit (Creative Commons)
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