The speculation doesn’t look good for the Voting Rights Act, with watchers speculating that Article 5 will be struck down 5-4 with Justice Kennedy joining with the conservative justices. In other words, the VRA’s future will depend on how which way Justice Kennedy swings. Will he join with Republicans as he did to bring us the nightmare of Citizens’ United? Or will he recognize that the VRA should be expanded – not struck down?
The SCOTUS Blog observed that Justice Kennedy’s questions reflected a concern about states’ rights, most notably when he asked:
If Alabama wants to put up monuments to the heroes of civil rights, in order to “acknowledge the wrongs of its past,” the Justice asked, “is it better off doing it if’ it’s an own independent sovereign or if it’s under the trusteeship of the United States government?”
Also noted by the SCOTUS Blog, Kennedy had similar concerns the last time the VRA was challenged.
But those who had attended the Court’s last hearing on the constitutionality of the 1965 law, four years ago, could recall that Kennedy was equally disturbed then about the threat he saw to states’ rights, and yet the Court concluded that case without striking down the law. It found a way to ease the burden of the law, for local governments, and left it at that.
Pete Williams of MSNBC noted: “The justices were apparently concerned with the fact that the law is too “backward looking” focused on the states with a history of racial discrimination. “Many of the justices said that the problems in the south aren’t as bad as they are in places in the north and it troubled them that the law doesn’t have any way to deal with that,”
Actually, this raises a valid concern in the sense that Republicans control state legislatures pass voter ID laws and other forms of vote suppressing that disproportionately affect racial minorities, as well as people in other demographics that are more likely to vote for Democrats than for Republicans.
However, striking down Article 5 would make the problem worse. Does anyone really believe that our gerrymandered House of Representatives will suddenly get to work on a voting rights act that is more expansive than it is now? They would do so at their own peril because the only real reason Republicans retain control of the House of Representatives are the very practices that Article 5 blocked.
Then we move on to the Chief Justice, who some speculate is another potential “swing vote.”
According to The Quincy Herald Whig
Chief Justice John Roberts, a vocal skeptic of the use of race in all areas of public life, cited a variety of statistics that showed starker racial disparities in some aspects of voting in Massachusetts than in Mississippi. Then he asked the government’s top Supreme Court lawyer whether the Obama administration thinks “the citizens in the South are more racist than citizens in the North.
As the government’s top Supreme Court Attorney acknowledged, the answer is no.
Scalia somehow thinks the VRA is a “perpetuation of Racial entitlement” In other words, Scalia favors the “perpetuation of racial entitlement” that is inherent the very policies the VRA blocked as recently as 2012.
Something Justice Sonia Sotomayor’s response to Scalia’s comments, reflected: ”Do you think Section 5 was voted for because it was a racial entitlement?” … “Do you think racial discrimination has ended?”
One need only look at the GOP’s tactics, in 2012 as reflected in Florida and Michigan to affirm that racial discrimination is far from over.
We saw the evidence that millions of Americans wrongfully disenfranchised under voter ID laws in search of the statistically non-existent problem of voter fraud. We saw it as people waiting in line for 5 to 7 hours because of policies intended to slow the voting process and with it discourage voting.
We saw data that showed voter ID laws have a disproportionately adverse effect on racial minorities and other classes of people most likely to vote Democrat.
Racism was alive and well in 2006, when the VRA was last renewed by George W. Bush . It lived in 2012. Gerrymandering made it possible for the GOP to control the House of Representatives, even though most Americans voted Democrat. They tried to buy the Senate since they can’t gerrymander their way to victory there or buy it, as exhibited in Elizabeth Warren’s victory over Tea Party darling, Scott Brown. Hence, the GOP’s desire to repeal the 17th Amendment, in favor of State legislatures appointing our Senators.
Teapublican controlled state legislatures continue to look for was to disenfranchise racial minorities and/or water down the value of their votes. Republicans in Michigan and Pennsylvania are looking to change their winner take all formula to one that rewards the losing candidate.
Now that North Carolina has a Republican governor, it’s all but a certainty that the voter ID laws that disproportionately disenfranchise, racial minorities along with seniors and the poor will pass.
In that respect, the Justices most likely to strike down the VRA understand the problem. Racist election policies are no longer restricted to the south, suggesting a need to expand Article 5 of the VRA. Striking it down will only further entrench the very problem that Article 5 was designed to resolve.
Given that Justice Thomas thinks there’s something unconstitutional about mechanisms designed to prevent racism discrimination and Justice Scalia has it backwards when he says that Article Five is about “perpetuating racial entitlement” it’s pretty clear they will vote to strike down the VRA. Alito is likely to join them. Roberts is less likely to go rogue and actually look at the law instead of the politics a second time around. Justices Ginsberg, Breyer and Kagan are likely to join Sotomayor in favor of upholding the VRA.
That leaves us with the reality that the future of voting rights really lies in the hands of Justice Kennedy. His decision will depend on whether he places a higher priority on states to enact racist election laws, or the people who will inevitably be disenfranchised if the Voting Rights Act is struck down.
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