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Section Five Of The Voting Rights Act Is Worth Saving

Christian Patterson |
February 27, 2013 | 5:23 p.m. PST


Section five of the Voting Rights Act should be upheld. (Afagen, Creative Commons)
Section five of the Voting Rights Act should be upheld. (Afagen, Creative Commons)
Journalists all over the country are busy writing the obituary of an important provision of the Voting Rights Act after a Supreme Court hearing on the law today. The impetus for these prognostications stems from comments made by Justice Scalia, one of four ardently conservative justices on the nation’s highest court, who described section five of the law as “a perpetuation of racial entitlement” and chalked up the law’s most recent re-authorization to political expediency rather than the need to protect equal access to voting booths.

For those unfamiliar with section five of the Voting Rights Act, here's a quick primer. The Fifteenth Amendment and all subsequent legislation passed by Congress proved inadequate at protecting voting rights for African-Americans. States and municipalities found ways to circumvent every federal statute put in place. So, in 1964, President Johnson signed the Voting Rights Act, with section five serving as the teeth of the law that guaranteed enforcement. It gave the Department of Justice the authority to review all changes to voting law made by regions of the country with a history of voting discrimination. The law was an unprecedented success, and the number of African-Americans registered to vote skyrocketed. The enforcement mechanism of the legislation is what the Justice refers to as a "racial entitlement."

His assessment could not be more wrong. But what else should we expect from a man who votes to protect laws that criminalize homosexuality, argues for the constitutionality of torture and advocates for an interpretation of the constitution as if 225 years haven’t passed since its ratification. Whether Justice Scalia is willing to acknowledge it or not, our country still faces important challenges to ensuring that citizens can exercise their right to vote.

The 2012 election cycle made evident our shortcomings in this area. Does Scalia believe it's okay that voters in Florida are having to wait in line for seven hours just to enter the polls? Does he see it as a sign of progress that the Republican Party chairman from that same state was holding meetings on “suppressing the Black vote”? Did it warm his heart to hear a Pennsylvania state lawmaker admit that the Keystone state’s new voter ID law was aimed at guaranteeing a Romney victory?

Scalia would no doubt point out that none of the above infractions occurred in states over which section five has any authority, and that not all of the above instances were motivated by racism. However, this ignores the fact that these instances prove the necessity of protecting people’s voting rights from elected officials and political operatives who wish to strip it from them. If the voting rights of poor and minority groups are at risk in places with little racial baggage, imagine what threats exist in areas with a history of racial tension.

That rebuttal would also be an argument in favor of section five. The fact that these miscarriages of justice took place less often in regions with a history of racial discrimination proves the deterrent effect of the provision. What elected official is going to propose a discriminating voting policy only to have it struck down by the Department of Justice (other than Rick Perry, of course)?

The argument that not all of these examples were motivated by race holds true. This is not 1964. Our country has made tremendous strides in terms of racial equality and integration. The Republican Party would love it if African-Americans, Latinos and other underrepresented minorities were voting for them in large numbers. However, the reality is that they’re not. Which is why the Florida Republican Party is having secret meetings about stopping minorities from casting their ballots. It is also why Ohio Republicans sought to limit early voting, a time when African-Americans make up a disproportionately large portion of turnout. It’s not always about racism. A lot of the time, it is about winning. And in the situation the Republican Party now faces, issues of demographics and voting patterns go hand-in-hand with winning elections.

Section five of the Voting Rights Act is an essential part of defending one of our most cherished rights. Justice Scalia’s willingness to heap it into the dustbin of history is disturbing, but not shocking. Let’s just hope that the other members of the Supreme Court vote to protect our most cherished set of rights.


Reach Columnist Christian Patterson here; follow him here.



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