Liberals are jumping all over Supreme Court Justice Antonin Scalia’s comment yesterday during an oral hearing in which he asked whether continuing the special enforcement provisions of the Voting Rights Act in some states was a “perpetuation of racial entitlement.” Many, including his court colleague Justice Sonia Sotomayor, seemed to interpret it as questioning whether the right to vote is itself a “racial entitlement.” For his pains, Scalia was branded a racist. What is left of the aging remnants of the once-vital civil rights movement are hoping that outrage about that remark can galvanize public pressure not just for the continuation of the Voting Rights Act as it currently stands, but against both voter integrity laws and the system of racial majority districts.
The problem with the critique of Scalia is pretty much the same as that with the defense of the legal status quo. What is at stake in this debate and the legal case in question–Shelby County, Alabama v. Holder–is not the right to vote, which Scalia supports as much as any liberal. There is no evidence that anyone in Shelby County is trying to reinstate Jim Crow laws or prevent African Americans or other minorities from exercising their constitutionally protected right to cast a ballot. Nor is there any evidence that this is true anywhere else in the states and counties that remain under direct federal supervision as a result of the 1965 law. The entitlement in question is rather the ability of the Justice Department to act as a national elections commission in certain areas that were once strongholds of racial hatred, even though the country has changed markedly in the last half century. Instead of promoting the false charge that Scalia is a segregationist, the focus should be on who benefits from the continuation of Section Five of the Act. The answer is: a class of political elites that benefit from the creation of racial majority districts.
As both the plaintiffs and some of the justices pointed out yesterday, the problem that that provision of the law was designed to address has been solved. Voter turnout of blacks is actually higher in the nine states covered by the Act than in the rest of the country. The continuation of Section Five–in which certain areas must prove they are not discriminating against minorities rather than forcing the government to prove that they are–does, however, hamper the ability of legislatures to redraw districts or to pass voter integrity laws that liberals falsely allege are directed against minorities.
It must be understood that once the detritus of segregation and other laws intended to prevent blacks from voting were swept away, the main point of the law has been to create a system that enshrined racial gerrymandering as the norm. Since it was assumed that whites would never vote for an African American, the courts mandated that congressional and legislative districts be drawn so as to ensure that blacks and in some cases Hispanics would be able to elect one of their own.
This led to a vast expansion of the number of blacks in Congress and in state legislatures, but ironically also hurt the party that most of them supported. The districts created by this racial gerrymander were often bizarrely drawn and had little to do with geography or history. But the main point is that they drained black Democratic voters from other districts that ensured the engineering of a few safe Democratic seats. Yet they also made the remaining districts much whiter and, ironically, far more likely to be Republican.
That was good for the few black politicians who were in possession of these safe Democratic and racially homogeneous seats, and for the Republican Party that cleaned up everywhere else. Whether that is actually good for the country or for African American voters, who have little influence on the composition of Congress and whose representatives are the products of petty one-party autocracies, is another matter entirely.
Just as crucial to understanding the impact of this case is the way the Civil Rights Act has become a weapon to use against voter integrity laws. What is left of the civil rights movement has embraced the cause of stopping voter ID laws as a way of reviving their influence. Minorities are no less capable of getting the same photo ID that is needed to conduct just about any transaction in the modern commercial world or to interact with government than anyone else. But the left attempts to argue that opposition to them is indistinguishable from that of racial justice. This is absurd, and it is opposed by what polls have consistently showed to be the vast majority of Americans—including minorities—who think laws that seek to prevent electoral cheating are inherently reasonable.
The current interpretation of the Voting Rights Act gives Attorney General Eric Holder the right to oppose these laws and to brand them as racist. As the president’s mention of the issue in his State of the Union showed, this is an attempt to play the racial card for partisan purposes. It also gives aging rights groups who have outlived their usefulness a new lease on life. But all this also undermines any notion that what is at stake in the Shelby case is anything remotely connected to the original intent of the 1965 law.
The South has transcended its tragic past and is no more nor less racist than any other part of the country. But given the inability of so many in Congress on both sides of the aisle to rise above their own self-interest on this issue, the court is the only venue that can talk sense and end a practice that now does more mischief than good. Protecting the right to vote is a sacred cause that deserves the support of all Americans. But the preservation of this outmoded system, or wrongly branding Scalia a racist, has nothing to with that.