-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.
H/T: Charles P. Pierce, Adam Serwer, Rick Hasen, Scott Lemieux, Roger Clegg, Adam Serwer.
Bron, racial gerrymandering can also work as vote dilution which is an old tactic. If in your city African Americans lived in one generally contiguous area of the city, were all in one district, and they voted primarily democratic their influence could be diluted if, when redistricted, that district was cut up into small pieces and those pieces stuck in overwhelmingly Caucasian, republican districts.
This is also racial gerrymandering and one of the things that the voting rights act was set up to rectify. From Scalia’s remarks he seems to have a problem with that noting that now, some all black districts have been set up. I would like to know if they are contiguous areas that had been chopped up previously to dilute blocks of voters. I can see this being a serious issue for some western states that have cities with areas with a high concentration of Hispanic voters or southern states, like Florida that have Latino voters in concentration in some areas.
Scalia has and agenda, he’s a partisan as well as a racist IMO.
Bron,
At the bottom of this comment is a story about of the Republican plan to gerrymander electoral votes instead of winner-take-all in Presidential elections. A similar strategy is planned for for House districts. Of course, the Senate is winner take all for whole states, so it is not possible to gerrymander them.
Your suggestion is not a bad one regarding checkerboarding districts. As was pointed out, that is not really feasable due to practical constraints. I have another idea that has been percolating in my head ever since I first learned of gerrymandering in eighth grade Civics. It is even more workable now that we have computers instead of cartography the old fashioned way. I suggest that all congressional districts in a state be drawn with the shortest border length, within constraints of geographic limitations, such as rivers, canyons or mountain ridges. We could add major highways into that formula as well.
I am also sick and tired of national elections being decided by state lines. Those rules were drawn up in the days of horseback couriers. Since the President and Vice-President are the official administrators of the entire county, run the election that way. A single nationwide general election. All votes thrown into the same pot instead of for electors. That would eliminate problems such as those caused by crooked election clerks in a single small area from being able to throw a whole election by “suddenly discovering” a few hundred votes that had “accidentally” not been counted. And also make gerrymandering irrelevant.
http://tv.msnbc.com/2013/01/24/we-did-the-math-how-the-gop-will-gerrymander-its-way-back-to-the-white-house/
Bron,
A congressional district does not have to be in a rectangular shape and can be configured in many ways to reach the desired population and demographic.
I think you answered you question bron…. But as we get closer to the white no longer being the majotity…. Will there be a need?
If you think in terms if Afirnative Action… The whites will benefit because of the laws in place… If you catch my drift..
AY:
whites are 72.4% of the population.
Bron,
Just like regular gerrymandering… Except you use a quote minority area to make up the electorate…. End quote… I’m sure some see it as devisive… And racial preferences…. As society grows and the whites comprise less than 50 percent of the voting power…. I can see where some are against preferences…. But there are some areas that its still needed in… Take for instance Shebly, Alabama… The test case before the Sct is one that was specifically targeted….
rafflaw/AY:
can you explain to me how racial gerrymandering works? I have never heard of it. I understand regular gerrymandering but that is done by both parties to gain seats.
Maybe they just need to make a law to set the country up on some sort of grid system and quit gerrymandering altogether?
Make the rectangles a certain area and not worry about population density. Each rectangle is so many degrees north and south and so many miles east and west. And thats it.
One can Google the Eulogy For The Dog and find the story about George Vest and his lawsuit over the murder of a dog. It is a great story. When dogs talk (and dogs do talk) people listen. The call for the Impeachment of Scalia and the UnreConstructed gang of four needs to be sent forth across this nation. These “Go pick cotton and shut up” attitudes have no place on the Supreme Court of the United States.
By the way. Where did Scalia get that dork hat he is wearing in the photo?
To some humans a dog is an all important friend and counselor. George Vest, a Missouri lawyer filed a lawsuit against some guy who had killed a man’s dog. This is the summation he made to the Jury in that trial:
Eulogy For The Dog:
“Gentlemen of the jury: The best friend a man has in this world may turn against him and become his enemy. His son or daughter that he has reared with loving care may prove ungrateful. Those who are nearest and dearest to us, those whom we trust with our happiness and our good name, may become traitors to their faith. The money that a man has, he may lose. It flies away from him, perhaps when he needs it the most. A man’s reputation may be sacrificed in a moment of ill-considered action. The people who are prone to fall on their knees to do us honor when success is with us may be the first to throw the stone of malice when failure settles its cloud upon our heads. The one absolutely unselfish friend that a man can have in this selfish world, the one that never deserts him and the one that never proves ungrateful or treacherous is his dog.
Gentlemen of the jury: A man’s dog stands by him in prosperity and in poverty, in health and in sickness. He will sleep on the cold ground, where the wintry winds blow and the snow drives fiercely, if only he may be near his master’s side. He will kiss the hand that has no food to offer, he will lick the wounds and sores that come in encounters with the roughness of the world. He guards the sleep of his pauper master as if he were a prince. When all other friends desert, he remains. When riches take wings and reputation falls to pieces, he is as constant in his love as the sun in its journey through the heavens.
If fortune drives the master forth an outcast in the world, friendless and homeless, the faithful dog asks no higher privilege than that of accompanying him to guard against danger, to fight against his enemies, and when the last scene of all comes, and death takes the master in its embrace and his body is laid away in the cold ground, no matter if all other friends pursue their way, there by his graveside will the noble dog be found, his head between his paws, his eyes sad but open in alert watchfulness, faithful and true even to death.”
Who let the dogs out? You ask. God did, on the Eighth Day.
Who let the Dogs out????
If you are a dog living in the District of Columbia, take a romp by the Court and leave a dump on the steps for me.
Citizen Dogs United seeks the blogsters here on the Turleyblog to bark out on this important Voting Rights Act case. When the Court strikes down the Act we need your support. Write your Congress person to reauthorize the Act in entireity. Write them also to impeach the four bigots. Uncle Clarence is worse than cheap shot Scalia.
Citizen Dogs United wants your support to help impeach Scalia, Alito, Roberts and Uncle Clarence Thomas. Remember the Barry Goldvasser days and the Impeach Earl Warren signs and bumper stickers? Well, it is time to strike back. We need your help. Write your Congressman or woman and ask hem to initiate an impeachment measure in the House. It then can go to the Senate for an Impeachment Trial. This Scalia statement about racial entitlements regarding our voting rights is worse than Bill Clinton porking that girlfriend with the cigar.
I will go ya one better BarkinDog. The dogpac got together last night and after reading the blog here on the big dogalogue machine screen about this bigot statement in oral argument we decided to form a new group.
Citizen Dogs United.
Our first effort will be to impeach Scalia. The Citizens United case was bad enough and the bigots on the Court sidle up to the Koch Brothers so much that they have to go. Uncle Clarence proved his quietude mettle when he did not say a word after Scalia made his racsist statement about black entitlement. Kennedy has an opportunity to move away from this dumb bigot Klan of Thomas, Alito, Scalia and Roberts.
Kennedy: Pull Out Now – Like Your Father Should Have At Conception Time.
In the aftermath of the school desegregation case styled Brown v. Board of Education, the RepubliCons devised their devide and conquor strategy of going after the Southern bigot vote and the Northern bigot vote as well. Lee Atwater from South Carolina worked on this and proclaimed a Southern Strategy which, after Goldwater lost to LBJ in 1964, was adopted by Nixon and then Reagun and every RepubliCon since.
The first phase was the IMPEACH EARL WARREN caompaiign. The bigots did not just concentrate on Brown v. Board of Education and desegreation cases but that was the main thrust.
Now that we have a self proclaimed bigot on the Court, due to the Southern Strategy and the RepuliCon Presidents who were put in office to implement the Southern Stratgey who put the bigots on the Court, there must be a response from real Americans. IMPEACH SCALIA, ALITO, THOMAS, ROBETS AND UNCLE CLARENCE. We need bumper stickers, yard signs, and statements on the Web.
Some of the minority folks living around here have begun to substitute the term “Uncle Clarence” for “Uncle Tom” when they wish to denote a suck uttBay black guy who belives in the plantation lifestyle. Clarence Thomas from Pin Point, Georgia has earned the nickname and he needs to go back to the “Cabin”.
On the day that the decision in the Voting Rights Act comes out this dog will have his bumper stickers all printed up.
The first one: IMPEACH SCALIA–One Less Bigot On The Court
A Little More From The Chambers
By Charles P. Pierce
2/27/13
http://www.esquire.com/blogs/politics/antonin-scalia-racial-entitlement-022713
WASHINGTON — It’s become clear that Antonin (Short Time) Scalia’s “racial entitlement” is going to be the primary noise-bite out of the Supreme Court today. It doesn’t matter that whatever point Scalia was making was completely incoherent. By what possible standard is Section V of the Voting Rights Act a “racial entitlement”? Who, precisely, is being entitled? And to what? The Voting Rights Act does not confer a government benefit to any one race or another. It merely makes sure that the rights guaranteed under the 15th Amendment are not finagled with out in certain parts of the country that have proven, through history, as being deft at said finagling. The reason that African Americans have been the primary beneficiaries of this law is the simple fact that they were its primary victims. The Voting Rights Act doesn’t privilege their votes over any others. It just guarantees that they can be cast, and that they will be counted. But Scalia doesn’t care at this point whether he makes sense. He’s just interested in throwing whatever rocks through whatever windows he can find. He called it a “racial entitlement” because putting those two words together in any context is bound to cause a reaction. He’s one step away from calling Rush from behind the bench.
Also, too: it has become plain that, for the Roberts court, and for the Chief Justice from whom it bears its name, Citizens United is going to be the hill on which they die. It is central to its judicial legacy. It defines Roberts’s tenure as chief justice. (When the Court declined to hear the so-called “Citizens United on steroids” case this week, it can be argued, it did so in order to protect the Citizens United ruling itself as a “moderate” decision in the field of campaign finance.) It cements into place principles — corporate personhood, money as speech — that prevailed during the previous Gilded Age, which also happened to be the period of history in which racial discrimination in the law, and especially at the ballot box, through Plessy v. Ferguson and its progeny. Plessy was decided by a Court that was pretending that it didn’t know what it was doing, and that was completely heedless of the inevitable effect of its ruling. That was plain to Justice John Marshall Harlan, who wrote a howling dissent:
Everyone knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary.
If the Roberts Court declares Section V of the Voting Rights Act to be unconstitutional, as seems sadly likely, it will have complete a historically resonant parlay through which corporate influence over elections is enhanced while minority participation is made more difficult. This did not work out very well the last time, and it is unlikely to work out well now.
lotta,
Scalia is buying whatever his sponsors are selling!
Elaine,
Great link to the NPR article. Maybe Justice Roberts watches too much Fox News.
In Voting Rights Arguments, Chief Justice Misconstrued Census Data
by NINA TOTENBERG
March 01, 2013
http://www.npr.org/blogs/itsallpolitics/2013/03/01/173276943/in-voting-rights-arguments-chief-justice-may-have-misconstrued-census-data
Bettykath, If I had read the comments before posting I’d have asked you if that was the article you were referencing or if there was more than one insane legislator acting out this week. 🙂 I’ve noticed that you don’t miss much and I enjoy your postings.