-Submitted by David Drumm (Nal), Guest Blogger
The U.S. Supreme Court held oral arguments (pdf) in Shelby County v. Holder, a case involving Section 5 of the Voting Rights Act. Shelby County, Alabama, is challenging its requirement under Section 5 to get preclearance, from either the United States Attorney General or a three-judge panel of the District Court of the District of Columbia, before making any changes to their voting rules. Oral arguments before the Supreme Court seem to be one-sided with the Justices hammering the attorneys who seem totally unprepared with counter-arguments.
In a statement that drew gasps in the courtroom, J. Scalia called Section 5 a “perpetuation of racial entitlement.” Later, J. Sotomayor asked the attorney for Shelby County: “Do you think the right to vote is a racial entitlement in Section 5?” Although J. Scalia has been the reigning bully of the Supreme Court, some new Justices are more than capable of standing up to him. It is likely, however, that J. Scalia was referring to the use of Section 5 to create African-American (or Hispanic) voting districts to counteract the practice of vote dilution. J. Sotomayor also called Shelby County’s voting law record “the epitome of what caused the passage of this law to start with.”
It is Section 2 of the Voting Rights Act that prohibits the gerrymandering of election districts to dilute minorities’ voting power. Under Section 2, either the United States Department of Justice or private citizens can sue election officials. However, this would be a time-consuming process and the racial gerrymandering would continue unless injunctive relief was granted. Section 5 is a procedural mechanism to stop the discrimination before it occurs, but for only those areas shown on the map. As J. Sotomayor noted: “Section 5 was created was because States were moving faster than litigation permitted to catch the new forms of discriminatory practices that were being developed.”
In League of United Latin American Citizens v. Perry, Chief Justice Roberts wrote that “this divvying us up by race” a “sordid business.” Unfortunately, Chief Justice Roberts wasn’t writing about the racial gerrymandering that leads to vote dilution, he was writing about the racial gerrymandering that maintains minority voting power. Chief Justice Roberts also wrote: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Racial gerrymandering that leads to vote dilution is discrimination. As Joey Fishkin writes: “The way to stop Congress from discriminating on the basis of race is to stop all this discrimination on the basis of race.”
UCLA con-law professor Adam Winkler notes the irony of originalists J. Scalia and J. Thomas voting against the Voting Rights Act. Prof. Winkler finds broad agreement among legal historians that the Fifteenth Amendment’s express grant of authority to Congress to pass “appropriate legislation” was intended to ensure African-American’s right to vote.
The right to vote is more that allowing voter registration. It is more than casting ballots. It is more than having those ballots counted. It is about equal participation in the political process. Vote dilution has the same effect as not counting minority ballots.
The Court is poised to facilitate the “sordid business” of racial gerrymandering designed to exclude African-American and Hispanic participation in the political process.