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/ March 1, 2013
The Supreme Court Considers: Is The South Still Racist?

Remember all that fuss during election season about unfair voting laws effectively keeping minorities from the polls? Well the election’s over (thank you, Jesus) but the problem persists. Now our highest court is scratching it’s head as SCOTUS reconsiders part of an old bill in a ruling that might bring us one step closer or father away from our most sacred tenet; universal suffrage.

The Voting Rights Act was a piece of legislation passed in 1965 and renewed in 2006 that works to protect against a broad spectrum of voter discrimination; it acts as a safeguard particularly against state-issued last-minute, trickster changes to voting requirements that might lead to any kind of voter suppression. Congress’ renewal of the Act means it’s law for the next 25 years.

But an usual part of the bill, Section 5, selectively places certain restrictions on nine states with a history of voter suppression, i.e. racial discrimination at the polls. In a case straight from Alabama, Shelby County v. Holder, Section 5 of the bill is being challenged on the grounds that its restrictions infringe on states’ delegated rights and instate unreasonable limitations that try to prohibit a kind of racial discrimination that the petitioner claims no longer exists.

For these nine states (Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and parts of Virginia, as well as 54 counties scattered about the country), nearly every change to the voting process–from changing polling places to adjusting voter ID laws–requires pre-clearance and approval from the Justice Department or the D.C. district court. Surely, this arduous process means a slower and annoyingly pot-holed path through voting season for the nine.

The progressive’s argument is that we have not progressed past the point of needing these checks in place. Recent events support this argument, since as recently as last year, Texas lawmakers’ plans to redistricting plans were blocked by the Justice Department for being overtly discriminatory since the plans sectioned off minority populations. This is just one such example of recent offenses.

The Supreme Court is now tasked with determining if such selective provisions are unconstitutional or if they are still necessary for protecting voters. Of the justices who seem to be inclined to strike down the rule, here’s what some of them had to say:

Justice Scalia is convinced that the 2006 bipartisan Congressional vote to keep the bill with its infamous Section 5 stipulation was a product of an accepted “racial entitlement.” Which more or less translates to: minorities should not get special treatment, i.e. protection, under the law because white people feel guilty for past offenses.

Justice Roberts pointed out that keeping the rule in place inherently suggests that the South, particularly these nine states, are more racist than their Northern counterparts–an implication he would prefer to shake off.

Justice Kennedy said that “Section 5 was utterly necessary in 1965. No doubt about that… The Marshall Plan was very good, too, the Morrill Act, the Northwest Ordinance, but times change.” Essentially, the time when this sort of legislative barrier to voter discrimination was necessary has passed and we (read: the nine states in question) are capable of keeping themselves in check.

Justice Alito further noted that perhaps Congress slipped up in not considering extending Section 5 to the whole country.

On the other side of the Court, the more liberal justices found reasons to keep the provision in place:

Justice Sotomayor is adamantly in favor of keeping the rule. She said to the Shelby County, Alabama laywer, “[Even] assuming some portions of the South have changed, your county pretty much hasn’t… a county whose record is the epitome of what caused the passage of the [law] in the first place.” Sotomayor also responded to Scalia’s suggestion that keeping the provision was a perpetuation of racial entitlement with the verbal equivalent of a bitchslap, “Do you think that the right to vote is a racial entitlement? Do you think that racial discrimination in voting has ended, that there is none anywhere?”

Justice Kagan pointedly remarked that Congress already collectively voted to keep the provision in place, noting that their judgment should not be entirely overlooked. “It was clear to 98 senators, including every senator from a covered state, who decided that there was a continuing need for this piece of legislation.”

Even the conservative argument for removing Section 5 does not hold water. What should seem obvious to the logic-enabled is that a dip in the frequency of civil rights violations is proof of the efficacy of said legislation, not reason for the repeal of those very protections. To use an example, we don’t do away with the police force because crime rate has gone down. The only logically valid alteration to the act is the extension of Section 5 from the nine states it currently monitors to the entire nation–all 50 states subject to the same review. Then, Section 5 would achieve the dual purpose of catering to the egalitarians (those who claim injustice is being done via special treatment) and continuing to enforce an evidently much-needed and effective safeguard of civil liberty.

Yet the possibility that broadening Section 5’s reach infringes on delegated rights places a weight on the opposing balance. Benjamin Franklin’s famous quote is ironically fitting here, as the Supreme Court searches for the ideal point between “freedom” and “security”–in this case, security against the violation of civil liberty. How much sovereignty must states (whether it be all fifty or just nine) forfeit in order for us to ensure the security of the freedom of the individual?

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