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I wrote about the Supreme Court hearing a case on the Constitutionality of the Voting Rights Act of 1965.  Back in November I worried about what this court would do to gut the VRA.  Unfortunately, my fears are starting to be realized.  At least they are according to the oral argument portion of the case thus far.  To catch everyone up, the VRA makes it illegal for states to institute discriminatory practices in the voting process.  Practices designed to suppress the vote of minorities like polls taxes, literacy tests, etc.  Section Five of the law prohibits specific states and counties with particularly bad records on these issues from making any changes to election practices without first getting pre-clearance from the Federal government.  Lo and behold, the majority of those states are in the South, which is a major source of contention among conservative justices.

Here's a question posed to the defense by Chief Justice John Roberts:

General, is it -- is it the government's submission that the citizens in the South are more racist than citizens in the North?
The fact that he has to ask that question is so very telling.  Well consider this my amicus blog.  First of all, when Congress singled out the particular states and counties in Section Five they didn't do it to be mean to the South.  Section Five covers more than just the South.  It also covers the state of Alaska and specific counties in California, Florida, New York, North Carolina and South Dakota, and some communities in Michigan and New Hampshire.  The reason that there are more southern states than any other is because the South became synonymous with disenfranchising black people.  There is a demonstrated history of racial discrimination there.  And it's not all from generations ago.  There's recent history as well.  Apparently, the Chief Justice is unaware of Jim Crow laws.  Is the South more racist than the North?  Well, a recent poll conducted last year showed that 21% of Alabamans and 29% of Mississippians thought that interracial marriage should be illegal.  Speaking of Mississippi, they just got around to ratifying the 13th Amendment in February of 2013.  That would be the amendment that outlawed slavery.  No worries, folks, it's only about a century and a half late.  So to answer the Chief Justice's question: OF FUCKING COURSE! This is not the position of the Federal government.  It's the position of reality.

Does that mean that there aren't racists in the North?  Of course not.  There are racists aplenty in this neck of the woods.  People like Supreme Court Justice Antonin Scalia, who was born in New Jersey.  Here's Justice Scalia's take on Section Five of the Voting Rights Act, which bring us back to the title of this blog post:

I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes...

That's the -- that's the concern that those of us who -- who have some questions about this statute have. It's -- it's a concern that this is not the kind of a question you can leave to Congress. There are certain districts in the House that are black districts by law just about now.

"Perpetuation of racial entitlement," Jesus!  How racist do you have to be to even suggest that minorities not only having the same rights as everyone else, but also having actual access to those rights, is a bad thing?  Again we always seem to get a strange sense that's life is so much easier if you're a minority.  Remember when Mitt Romney quipped how much better his Presidential chances would be if only he were Mexican?  I'm sure all of our hearts go out to him each and every day.  But numerous ironies abound in this case.  Justice Scalia's description of the Voting Rights Act actually illustrate why we should extend the law to even more states and counties rather than strike down key portions of the law.  And Shelby County, Alabama, which filed the original challenge to the Voting Rights Act, just violated that same law a few years ago.  So one of the most recent violators of the law wants us to trust them that there will be no further problems or voting shenanigans.  This must be what it feels like to live in an episode of the Twilight Zone.   A point that Justice Sotomayor put rather succinctly:
Assuming I accept your premise, and there's some question about that, that some portions of the South have changed, your county pretty much hasn't.

In -- in the period we're talking about, it has many more discriminating -240 discriminatory voting laws that were blocked by Section 5 objections.

There were numerous remedied by Section 2 litigation. You may be the wrong party bringing this.

Now here's Mr. Rein's response.  Notice how he avoids the entire argument about how specifically discriminatory the county he represents, Shelby, Alabama, has been and moves on to the tried and true defense versus racism.
If you look at Alabama, it has a number of black legislators proportionate to the black population of Alabama.
Ah yes, the counting defense aka the modified Shaquan Defense. When in doubt, simply fight off charges of racism by listing the brown people you know.  Alabama can't be racist.  We have black people in government for God sakes.  For those of you who don't remember the origin of the Shaquan Defense (see the link above), it was used most recently by a Republican politician in Maine who after saying something really racist (several things actually), later remarked that he couldn't be racist because he plays basketball with a black guy.  The Shaquan Defense is actually ironic for two reasons:


  • It tends to prove the exact opposite point you're trying to make, &
  • Shaquan is notoriously known for his half-hearted defense.  He's is an offensive superstar, though.

  • Yes, things are better now than back in 1965.  But the Voting Rights Act has been and continues to be essential in protecting the right to vote.  Sadly, some communities need more protection than others.  Particularly when the voices of specific groups are consistently targeted for suppression.  That's why in 2006 after 21 hearings, investigating more than 15,000 pages of information and ten months of debate on whether it was still necessary, Congress voted to reauthorize the Voting Rights Act for another 25 years.  The vote passed 390-33 in the House and 98-0 in the Senate.  It was the definition of  non-controversial and quickly signed into law by President Bush.

Among those who voted for the bill in 2006 were two Republican Senators from Alabama.  Now Justice Scalia would have you believe the Senator Jeff Sessions of Alabama was worried about losing future elections if he didn't back the VRA.  To that I say, you don't know Jeff Sessions.  To put it mildly, this isn't a man who worries about losing votes because of racial insensitivity.  If you use the search terms "racist" and "Jeff Sessions" you'll be reading for quite a while.

It's unfortunate that the cornerstone to civil rights looks like it's going to be struck down.  Not because it's no longer necessary, but because conservative judges don't like the idea of the Federal Government protecting certain people's rights at the expense of other people's bigotry. It's just too bad we aren't corporations.


Originally posted to The Non Blogosphere on Thu Feb 28, 2013 at 06:21 PM PST.

Also republished by Community Spotlight.

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Comment Preferences

  •  Well the Gerrymandering of 2010 Might Give (8+ / 0-)

    them justification to strike section 5 by citing the race-informed gerrymandering in other states that aren't included in the present list. (IANAL so I don't know if that's legally possible. But it's plausible logic for these 5 goons.)

    I think since we've seen the gerrymandering, all 50 states ought to be included but of course that expansion probably can't pass the Koch-gress.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Thu Feb 28, 2013 at 06:27:23 PM PST

  •  allegedly the greatest legal minds in country (8+ / 0-)

    are now parroting the POVs first articulated by hate radio's college dropouts

  •  Preach it! (3+ / 0-)
    Recommended by:
    urnumbersix, MBNYC, Calamity Jean

    Poverty = politics.

    by Renee on Thu Feb 28, 2013 at 07:18:53 PM PST

  •  Imagine, Scalia accuses Blacks of enjoying a (10+ / 0-)

    RACIAL ENTITLEMENT to voting.  Gee, so that's how we had slavery, segregation, Jim Crow Laws and now voter suppression laws.  Those damn Blacks tricked us, they always had the upper hand:  RACIAL ENTITLEMENT, don't you know.  And yes, we need to stop this by overturning the Voting Rights Act because congress is not able to do it so the United States Supreme Court of the Federal Republic of the United States of America will distinguish themselves by doing away with this evil law, this drag on our democracy, the veritable perversion of  America.  

    All Hail, the Great Justices,
    Defenders of Freedom,
    Rights of the People.

    •  The Supremes don't believe in democracy (3+ / 0-)
      Recommended by:
      Ticorules, adrianrf, lorla

      the way you and I do.  They see it differently.  Money is a form of free speech.  And speech results in votes so it's a fact of life that the rich (including those special people, corporations) get more votes than the rest of us.

      So what if 220,000 were disenfranchised in Florida?  So what if Republican's REDMAP project disenfranchised millions of voters to give Republicans control of the House?  All's fair in love politics and war.

      Even Democrats can be asses. Look at Rahm Emanuel.

      by Helpless on Fri Mar 01, 2013 at 07:27:54 AM PST

      [ Parent ]

      •  This statement is out of the park for explaining (0+ / 0-)

        differences in our democracy.  I want to lift it as is and spread it around everywhere.  Finally, we see the glimer of definition.  What is our democarcy for?    What are you for Helpless?   I am here to cast my unfettered vote with all other  Americans, no more disenfranchisement.

        Rahm Emanuel deals with many deaths due to gun shot and administers a huge American city.  Is tough oh ya and so is the president.    Which part of him(Emanuel)   is an ass?  

    •  This absolutely SLAYS me n/t (0+ / 0-)

      Let me explain the order of things to you. There's the aristocracy, the upper class, the middle class, working class, dumb animals, waiters, creeping things, head lice, people who eat packet soup, then you. -- Gareth Blackstock, Chef!

      by avamontez on Fri Mar 01, 2013 at 02:38:35 PM PST

      [ Parent ]

  •  Is it OK to draw districts based on race? (1+ / 0-)
    Recommended by:

    That has been one of the consequences of the VRA.  It has served to created a number of majority-black districts in the South with African-American representatives.  (This has also been delightful to the GOP as they can pack certain districts with 90% Democrats and leave the rest of the state's districts highly favorable to Republicans.)

    From the context, it seems Scalia's intentionally explosive comment had to do with this consequence of the Act.  And I can see why some might find the term "racial entitlements" as suitable for carving out districts so that members of a certain race can get elected.  I find the term somewhat repulsive, but we should carefully consider whether this is something we should be doing.

    •  The 90% districts are ridiculous (1+ / 0-)
      Recommended by:

      but I see no reason why there shouldn't be districts with African-American majorities or pluralities by law. Our history is what it is, as is our present, that needs to be taken into account.

      I mean, just look at the Senate.

      Fuck me, it's a leprechaun.

      by MBNYC on Fri Mar 01, 2013 at 03:56:27 AM PST

      [ Parent ]

      •  Cramming isn't all roses (2+ / 0-)
        Recommended by:
        Be Skeptical, lorla

        In the first place, I'd say whether a constitutent is represented in Congress depends upon whether their preferred policies are being considered and expressed in DC, not the skin color of the person doing the consideration and expression.

        But more importantly, let's look at what actually happens.  The VRA mandates that you can't have less majority-minority districts by virtue of redistricting.  So, if there are 2 out of 10 districts majority-minority districts, the law says you need to maintain 2 out of 10 majority-minority districts (or at least not weaken - keeping it simple for purposes of this example).  Fair enough, right?  

        Well, maybe.  Let's say you have a statewide minority population of 15-20%, heavily concentrated around an urban center.  There are 2 majority-minority districts, drawn around that same urban center.

        Now, when you're redistricting that urban center, you could draw, say, 4 of your districts to have 40% minority representation.  Anyone running for office in those districts would certainly need the input and support of the minority community!  That'd be 4 times as much potential representation - but it'd be illegal under the VRA.

        What is legal?  Gerrymander the 2 existing districts so that they are something like 80-90% minority - cram 'em in.  Now, the other districts have minimal minority composition, and the people who run for those districts won't care about the desires of the minority community at all.  

        Good result?  It's what we have now.

  •  The real question isn't (5+ / 0-)

    whether the South is more racist than the rest of the country. Pathetic dodge by Roberts, but he misses the point.

    Rather, the question is why we don't have a national legal framework to guarantee a right to vote to all Americans along with the instruments to guarantee that every vote gets counted. Republicans tried to cook the books far beyond the old confederacy in 2012, and there's no reason to think they'll do otherwise in 2014.

    I'm not all that optimistic that the amoral Scalia court will uphold the VRA, not after the racial entitlement swine fart, but there is more than one way to secure justice.

    Fuck me, it's a leprechaun.

    by MBNYC on Fri Mar 01, 2013 at 03:45:40 AM PST

  •  He obviously can't read the constitution-Sec 2 (3+ / 0-)
    Recommended by:
    Ahianne, Ticorules, alice kleeman

    States effectively ceded a fair amount of authority with the passage of the reconstruction amendments.

    Amendment XV
    Section 1.
    The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.

    Section 2.
    The Congress shall have power to enforce this article by appropriate legislation.

    Section 5 of VRA is clearly within congressional perogative. The neo confederates of the Roberts court tend to ignore any constitutional amendment passed after 1789.


  •  What Scalia is saying actually is that (1+ / 0-)
    Recommended by:

    voting is a government subsidy of sorts for "other" races. One that can be given or taken away at will.

    But voting is presumably a Constitutional right for his race.

    A truly unbelievable and unprofessional statement and unAmerican belief.

    On the other hand if he saying the government facilitates Black 's access to voting as a selective or privileged "entitlement" it can only be a privileged for Blacks if it, voting, is denied to some or all non Blacks.

    Either way Scalia's logic it totally flawed and fails completely as a statement of law or legal logic.

  •  for a strict constructionist (1+ / 0-)
    Recommended by:

    For a strict constructionist, who acknowledges only the original constitution, and considers every amendment after the Bill of Rights to be an outrage, Scalia's position is correct. Voting rights are a system of racial (and gender) preferences.  Only white males can hope to vote.

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