Last week, the U.S. Supreme Court heard oral arguments in the case of Shelby County v. Holder. Shelby County, Ala. is challenging Section 5 of the Voting Rights Act of 1965, which subjects certain jurisdictions with a history of voter discrimination to federal preclearance before a change in election law or procedure can take effect.
Shelby County argues that this part of the act has been successful enough that it is no longer a congruent and proportional response to the interest in ensuring voting rights.
However, huge majorities in Congress have approved Section 5 each time it has been renewed. Justice Antonin Scalia argues that since Section 5 has been successful, this increase in support raises concern. He asserts that racial entitlements have no way of ever being removed by the legislative process once implemented due to legislators’ fear of being labeled as racist.
Scalia’s implication that the right to vote is a racial entitlement is troubling. Ensuring equal access to the ballot box is in no way an entitlement.
However, Scalia seems to actually be referring to the way districts are apportioned — specifically by majority-minority districts. On this point Scalia is not so far off the mark in challenging the wisdom of such a policy goal and in pointing out another reason that the renewals receive such widespread support from incumbents.
On both sides of the partisan divide, policy like this makes each legislator’s own re-election prospects easier based on the demographics of their districts. This may in fact account for part of the polarization and gridlock in Congress and is worthy of consideration upon redistricting. However, striking down Section 5 is not the way to solve this policy question.
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