Oral Arguments In Voting Rights Case

-Submitted by David Drumm (Nal), Guest Blogger

scaliaOfficial Portrait of Justice Sonia SotomayorThe 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 VRA section 5 coverage mapmechanism 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.

H/T: Charles P. Pierce, Adam Serwer, Rick Hasen, Scott Lemieux, Roger Clegg, Adam Serwer.

78 thoughts on “Oral Arguments In Voting Rights Case

  1. I was at oral argument in the Supreme Court of Virginia once in 1988 and heard a case brought by some lawyer from Spartanburg, VA. He started off:

    “Yo Honazz, I’m [forgot his name] from Spartanburg, Vijinnya, representin appellant in this heah case. Yo Honnaz, may it please the coat, this heah’s a coon doag case. My client’s coon doag was run ovah by the appellee’s vee-hickle. The jurih didden unnestann — they got confused on the isshas of liahbilitih and valyuh, Yo Honnazz… [drone drone drone drone drone…]

    so I wrote this little ditty to the music of the “Turkey in the Straw” —

    May it please the coat,
    Well yo honnaz lissen here,
    let me put this stoarih in yo honnable ear,
    well the jurih got confused and they didden unnerstan..
    may it please…the…coat.

    May it please…the…coat
    well the doaggie, he is dayd!
    The defendant’s vee-hickle knocked him IN THE HAYD!
    well the jurih got confused and they didden unnerstan..
    may it please…the…coat. …

    blah blah blah…
    [dedicated to BarkinDoag]…

  2. Bron,

    With OS’s great piece and Lks you should be in great shape to understand how it works.

    I also have to agree with OS’s succinct ability to elect the president and veep….

    No one who has responded to you bron has done so in a bias manner…

  3. “. Divide and conquer: Texas “cracked” minority voters out of one district into three.

    One common tactic of racial gerrymandering is “cracking” a minority community into different districts so it cannot elect a minority politician.

    Looking at a State Senate district in Fort Worth, the judges cited testimony that lawmakers reshaped the district in a way that “cracked the politically cohesive and geographically concentrated Latino and African American communities,” and placed those voters “in districts in which they have no opportunity to elect their candidates of choice.”

    The judges cited “well supported” testimony that African Americans in Fort Worth had been “exported” into a rural, “Anglo-controlled” district to the South, while Latinos on the North side of the city had been put into another white, suburban district, leaving the “reconfigured” Senate District 10 a “majority Anglo” district.

    The judges rejected Texas’ argument that “its decision to ‘crack’ [Senate District] 10 is best explained by partisan, not racial, goals,” and concluded that the district map “was enacted with discriminatory purpose.” Propublica

  4. There are four, not three, UnReconstructed igotBays on the Supreme Court: Roberts, Scalia, Alito and Uncle Clarence. A black person who goes along with igotBays is one himself because it takes one to know one.
    Someone who believes that the Voting Rights Act is for the “perpetuation of racial entitlements” is also and idiot. An idiot is someone who went in dumb and come out dumb too. It is like someone who got off the boat, could not read or write and could not learn to read or write. It is like someone from New York who thinks the Mets are better than the Cardinals. Or someone from Jersey who thinks that New York is a suburb. Or someone from Yale who thinks their itShay dont stink. Or someone who speaks latin who knows nothing of piglatin. Or someone from WordPress who wont let a female dog be called by her real name.

  5. LK,

    You’re most welcome… The first reported Sct case Marburry V Maddison was the culmination if partisan politics reported…. It established and in my opinion legitimize the Sct as it operates today…

  6. The Fifthteenth Amendment confers the right to vote upon the freedmen. It reads:

    Amendment XV. fn7 [ Annotations ]
    Section. 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
    Section. 2. The Congress shall have power to enforce this article by appropriate legislation.

    …. end

    Congress knew that they would have to produce statutory Acts to enforce the Constitutional provision once ratified by the states. The Reconstruction era ebbed. It could not be done. The South and many areas of the North set up laws that prevented negro voting. How many bubbles in a bar of soap Mr. Scalia. Oh, ten thousand. You are right, go vote mister Italian just off the boat. Next. Oh Clarence. Ten thousand? wrong. Go back to Pin Point and maybe your son will get a chance to vote.
    It took Lyndon Johnson to pass the Voting Rights Act of 1965. The statute provides that certain bigot states have to clear new legislation with special courts to pass muster.
    Uncle Clarence sitting n the Court must be content with his voting rights back in Pin Point, Georgia, because, as normal, he did not utter a peep when Scalia made, during oral argument, his dumb affirmative statement about black entitlements conferred by the statute.

    Impeach Antonin Scalia!

  7. Yeah, that used to be Uncle Tom’s Cabin but Clarence rewrote the book on being a Koch Brother. Get it….. Brother.

  8. Segregation now, Segregation tomorrow, Segregation forever. George Wallace.

    Yeah, Wallace’s homestate is gonna stop their efforts to keep from voting. Justice Scalia needs to get a job doing divorces in Queens and get off the Court. Turdy turd and a turd.

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