Court squares off on 'racial entitlement'

Washington Post:

The Supreme Court’s conservative justices strongly suggested Wednesday that a key portion of the Voting Rights Act is no longer justified and the time had come for Southern states to be freed from special federal oversight.

Chief Justice John G. Roberts Jr. asked Solicitor General Donald B. Verrilli Jr. whether it was the federal government’s contention that “the citizens in the South are more racist than citizens in the North.”

Verrilli said that was not the government’s argument but that Congress decided in 2006 that Section 5 of the Voting Rights Act was still needed to protect the voting rights of minorities. The section requires nine states, mostly in the South, and local governments in other states to “pre-clear” any changes in voting laws with federal authorities.

Justice Antonin Scalia responded by saying flatly that he thought it was “not the kind of question you can leave to Congress,” because it was impossible for elected representatives to vote against such a measure.

The act has come to be seen as a “racial entitlement,” Scalia said, and “I am fairly confident it will be reenacted in perpetuity” no matter how much progress the states make in eliminating discrimination.

Verrilli responded that in the amendments passed after the Civil War, the Constitution quite clearly gives Congress express power to enforce voting rights and said it would be “extraordinary” for the court to second-guess its judgment in reauthorizing the act by nearly unanimous margins in 2006.

The oral arguments, which extended beyond a scheduled hour, revealed the court at its most ideologically polarized.

The court’s four liberals came armed with statistics about how minority voting rights were still more threatened in the states singled out in Section 5 than the rest of the country, and they warned about the need for judicial restraint.

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Kagan said that almost any formula Congress devised to indicate where Section 5 was still needed “would capture Alabama.”

But Roberts, questioning Verrilli, said voter registration and turnout among blacks in Alabama was better than in Massachusetts.

Justice Samuel A. Alito Jr. said it made no sense that some states were covered and others were not, and he asked why the law should apply to Virginia but not Tennessee or some places in the Bronx rather than Brooklyn.

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Kennedy is again the swing vote and he seems concerned about the discrimination against certain states.  He makes the point that the provisions of the act that apply to the entire country should be enough to deal with any problems.  What makes this case more interesting is that we are dealing with a politicized Justice Department that is still looking to punish states like Texas where it takes the position that a racially neutral voter ID law is discriminatory because some Hispanics would have to travel to get their ID.  The Justice Department has abused its discretion in these voter ID law cases and the court needs to take that jurisdiction away from them.