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Last Wednesday, Adam B gave five reasons why Section 5 of the Voting Rights Act of 1965 might be in trouble with the Supreme Court:

And of course, we're all familiar with Supreme Court Justice Antonin Scalia's latest statement on Section 5 of the Voting Rights Act:

JUSTICE SCALIA: Well, maybe it was making that judgment, Mr. Verrilli. But that’s — that’s a problem that I have. This Court doesn’t like to get involved in — in racial questions such as this one. It’s something that can be left — left to Congress.

The problem here, however, is suggested by the comment I made earlier, that the initial enactment of this legislation in a — in a time when the need for it was so much more abundantly clear was — in the Senate, there — it was double-digits against it. And that was only a 5-year term.

Then, it is reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it. And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. 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.

I don’t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution. You have to show, when you are treating different States differently, that there’s a good reason for it.

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. And even the Virginia Senators, they have no interest in voting against this. The State government is not their government, and they are going to lose — they are going to lose votes if they do not reenact the Voting Rights Act.

Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future? - Think Progress, 2/27/13

Think Progress explains why Scalia's argument is pretty scary:

Supreme Court Justice Antonin Scalia at the John Marshall Law School to dedicate a new 100 seat courtroom in honor of Supreme Court Justice Arthur J. Goldberg.  September 28, 2012, 2012 (Phil Velasquez Chicago Tribune)  B582407519Z.1 ....OUTSIDE TRIBUNE CO.- NO MAGS,  NO SALES, NO INTERNET, NO TV, CHICAGO OUT, NO DIGITAL MANIPULATION...
When Scalia uses the term “racial entitlement” he appears to be referring to the kind of law that entrenches itself because lawmakers are too afraid to vote against it for fear of being accused of racially improper motives. As Scalia puts it, “[w]henever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.” In other words, Scalia believes that the Voting Rights Act somehow “restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation,” and thus it is his job as a judge to strike it down.

This is a disturbing idea for many reasons, but one of the biggest ones is that its logic could extend well beyond the Voting Rights Act. There is a common belief among conservatives that welfare programs by their very nature lead to the kind of so-called breakdown of democracy that Scalia finds objectionable in the Voting Rights Act case. Indeed, the most famous articulation of this view was Mitt Romney’s 47 percent remark: “those that are dependent on government and those that think government’s job is to redistribute — I’m not going to get them.” In essence, Romney warned that as the government creates welfare programs, this transforms welfare recipients into a constituency for those programs. And eventually that constituency becomes so large that it is impossible for a lawmaker to repeal those programs, or for people who oppose those programs to get elected. - Think Progress, 2/28/13

Scalia's remarks caused fellow Supreme Court Justice Justice Sotomayor and the other liberal-leaning judges to defend Section 5 of the Voting Rights Act:

Supreme Court justice Sonia Sotomayor is acknowledged by President Barack Obama at the Congressional Hispanic Caucus Institute’s 34th Annual Awards Gala at the Washington Convention Center, Wednesday, Sept. 14, 2011 in Washington. (AP Photo/Charles Dharapak)
The Obama-appointed justice asked the first question of the day. She hammered Burt Rein, the lawyer representing the challengers, Shelby County of Alabama, over its record of discrimination. The county contends that Section 5 is unfair to its residents and other jurisdictions that it requires to obtain federal preclearance before changing their voting laws.

“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,” Sotomayor said of Shelby County, which is 90 percent white. “In the period we’re talking about, it has many more discriminating -­- 240 discriminatory voting laws that were blocked by Section 5 objections. … You may be the wrong party bringing this.”

“Why would we vote in favor of a county whose record is the epitome of what caused the passage of this law to start with?” she asked, wondering why the Court should invalidate Section 5 if, as she argued, any formula would cover Shelby County. “Discrimination is discrimination.”

While Section 5 was taking a beating at the hands of the conservative justices, the four liberal-leaning justices targeted various audiences. Sometimes they played to each other, sometimes to the conservative justices they hoped to sway, sometimes to the future Court, sometimes to the public audience. - TPM, 2/27/13

But whatever may happen to Section 5 of the Voting Rights Act, Senator Chris Coons (D. DE) is ready to fight back:

Coons told Attorney General Eric Holder during a Senate Judiciary Committee oversight hearing on Wednesday that he'd like to work with the Justice Department "should there be a change in the status of the Voting Rights Act." The Supreme Court heard oral arguments last week on whether to strike down Section 5 of the 1965 law, which forces certain jurisdictions with a history of racial discrimination to get the federal government's permission to make changes to their voting laws and procedures.

"I'd love to work with you on whether there's room going forward for expedited proceedings or for special ways to make sure that voting cases still get heard, and some either reauthorization or strengthening or replacement for the Voting Rights Act," Coons told Holder. - Huffington Post, 3/6/13

Here's Coons' full speech on the Senate floor speaking out before the Supreme Court's arguments on Shelby County v. Holder:

“Voting rights in this country are under attack, and the Supreme Court could remove a critical tool that is working to protect those fundamental rights.

“The Supreme Court will consider whether to invalidate the key provision of the Voting Rights Act — one that protects the fundamental right of every American to cast their ballot for the candidate of their choice.

“As the Supreme Court hears arguments in Shelby County v. Holder, justices will test the constitutionality of the Act’s requirement that jurisdictions with a history of racially based voting discrimination 'pre-clear' changes to their voting laws. Opponents of the law argue that the Act is unconstitutional because it only requires voting practices in areas with deep, historical discrimination patterns to be pre-cleared, while other jurisdictions need not.

“Quite simply, they are wrong. The Supreme Court has repeatedly ruled that Congress may distinguish between the states and even between political subdivisions within states when acting to remedy voting discrimination. This determination is for Congress — not the Courts — to make.

“There is another, practical reason why the Supreme Court ought to leave the Voting Rights Act alone: any state or subdivision is free to petition the Department of Justice to be exempted from the preclearance requirements of the Act. States, counties and towns have the ongoing opportunity to show that Congress’ determination of past discrimination no longer applies. Since 2006, 28 jurisdictions have succeeded in gaining exemption from this provision – about the same as during the first 41 years since the Voting Rights Act was originally passed.

“The Voting Rights Act is landmark civil rights legislation and should be preserved. By requiring that covered jurisdictions carry the burden of showing that changes to voting laws will not act to discriminate against minorities and are not motivated by a purpose to discriminate, the law has been incredibly successful in preventing most covered jurisdictions from even attempting to pass discriminatory voting laws. It is working well and the Supreme Court should leave it alone. I am confident that it will.” - Political News, 2/27/13

Coons has been a very loud advocate for not only protecting our right to vote but also improving the way we vote.  He is the author of the The Fair, Accurate, Secure and Timely (FAST) Voting Act that he reintroduced to the Senate in late January:

Senator Coons and others filed this bill last November, after we saw one more US election marked with long lines to vote, registration questions and issues and other problems that got in the way of very many Americans to exercise their franchise. He has reintroduced this bill, with Senators Mark Warner (D-Va.), Sheldon Whitehouse (D-R.I.) and Richard Blumenthal (D-Conn.) to help states to improve their election capabilities and make it easier for Americans to vote. From the website:

    This bill authorizes a federal program that would award grants based on how well applicant states are able to improve access to the polls in at least nine specified ways, including:

        Providing flexible registration opportunities, including same-day registration;
        Providing early voting, at a minimum of 9 of the 10 calendar days preceding
        an election;
        Providing absentee voting, including no-excuse absentee voting;
        Providing assistance to voters who do not speak English as a primary language;
        Providing assistance to voters with disabilities, including visual impairment;
        Providing effective access to voting for members of the armed services;
        Providing formal training of election officials, including State and
        county administrators and volunteers;
        Auditing and reducing waiting times at polling stations; and
        Creating contingency plans for voting in the event of a natural or other disaster. - Delaware Liberal, 1/25/13

You see Coons make the argument for the FAST Voting Act on the Senate floor:

I for one am glad to see Coons step up and get ready to fight Section 5 of the Voting Rights Act and I applaud his efforts to improve our voting process.  Assistant Attorney General Tom Perez, the official who heads the Department of Justice's Civil Rights Division, says he is confident that the Supreme Court will uphold Section 5 but has not stated if his office is prepared if the Supreme Court strikes down Section 5.  Luckily Coons is ready to go if the Supreme Court were to make that decision.  If you want to learn more about the FAST Voting Rights Act, you can check it out here on Coons' website:

And if you want to thank Senator Coons' work and find out how you can get involved with his efforts to protect our voting rights, you can contact his office here:


And if you would like to donate to his 2014 re-election campaign, you can do so here:

Originally posted to pdc on Thu Mar 07, 2013 at 09:34 AM PST.

Also republished by In Support of Labor and Unions and The Democratic Wing of the Democratic Party.

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