Should the Supreme Court strike down part of the Voting Rights Act? When the Voting Rights Act was passed in the 1960s, it was seen as a great achievement -- Congress taking action to ensure that African-Americans around the country, but particularly in the South, could exercise their right to vote.
But states and other jurisdictions -- in the South and elsewhere -- that have to get approval to make even minor changes to voting procedures are chafing under federal control and are challenging a portion of the law in the Supreme Court. Defenders say it has helped protect voting rights; critics like Justice Antonin Scalia liken it to a “racial entitlement.”
Should the law stay or go? Joel Mathis and Ben Boychuk, the RedBlueAmerica columnists, debate the issue.
MATHIS: Thanks to Justice Scalia for giving the game away during oral arguments on the Voting Rights Act. By labeling the law -- the only tool that has ever guaranteed African-Americans widespread access to the polls throughout the country -- as a “racial entitlement,” Scalia confirmed what we already suspected: There are still many powerful people who believe that simple “civil rights” become “special rights” when granted to blacks and other minorities.
In opposing the law, Scalia showed exactly why it was needed.
Racism isn’t dead. Stupid white resentment of black people exercising their rights isn’t dead. (Though, granted, both these problems aren’t as pervasive as they once were.) And as we’ve seen in recent years, attempts to keep polls closed to African-Americans -- and other Democratic-leaning constituencies -- certainly aren’t dead.
Here is what you need to know:
-- The 15th Amendment explicitly gives Congress the power to make laws to ensure that racial minorities are not denied the right to vote. Congress has decided repeatedly -- most recently in 2006 -- that the Voting Rights Act is needed to fulfill its responsibilities under the amendment. Any Supreme Court that strikes down the act, whether in part or in whole, elbows Congress aside from its constitutionally mandated role. That’s “judicial activism,” which conservatives don’t like unless they do.
-- Congress does not exercise its 15th Amendment powers willy-nilly.
The Voting Rights Act contains a process by which jurisdictions can remove themselves from Congress’s oversight -- so long as they can demonstrate they haven’t discriminated against minority voters for 10 years. Those “bailouts” have been increasing in recent years, showing that the process works.
In other words: If states or counties don’t want federal supervision anymore, it’s easy enough for them to opt out. All they have to do is stop discriminating. The Supreme Court’s wisdom, in this case, isn’t needed -- and probably won’t be helpful. Congress should be trusted to exercise the power given to it by the Constitution.
BOYCHUK: The 15th Amendment says Congress has the right to enforce its voting provisions “by appropriate legislation.”
The question today is not whether the Voting Rights Act of 1965 is constitutional. Of course it is. Rather, the argument is whether an emergency provision of the law that made sense decades ago -- Section 5 -- remains “appropriate” today. It does not.
For the federal government to intervene in state and local elections, there had better be a mighty good reason. In 1965 the reason was clear: the nine states of the Old Confederacy and parts of seven others had raised unconstitutional legal obstacles against black Americans registering and voting.
We’re not talking about long lines or asking people to produce an ID card -- a federal court last year, in fact, ruled that the Obama Justice Department overstepped its authority under Section 5 when it tried to stop South Carolina from implementing a voter-ID law. No, we’re talking poll taxes, literacy tests and outright intimidation.
Under Section 5, a state or local government could fall under federal scrutiny if black-voter registration or turnout fell below 50 percent in the 1964, 1968, or 1972 presidential elections. Congress extended the provision for 25 years in 2006 with that same standard in place, as if nothing had changed in three decades.
Strange, isn’t it, how progressives put so much faith in social advancement, yet refuse to see the progress right under their noses.
Yet as Chief Justice John Roberts pointed out, black-voter registration and turnout is higher today in red Mississippi than it is in blue Massachusetts.
Congress erred when it extended Section 5. Just as it was wrong for states to abuse their authority to deprive people of the right to vote, it is wrong -- and unconstitutional -- for the federal government to misuse a temporary emergency power to dictate states’ voting laws forever. You don’t need to be a “judicial activist” to realize it isn’t 1965 anymore.
Ben Boychuk is associate editor of the Manhattan Institute’s City Journal. Joel Mathis is a writer in Philadelphia. Reach them at bboychuk@city-journal.org, joelmmathis@gmail.com or www.facebook.com/benandjoel.
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