Justice Scalia Seeks to End Section 5 Of the Voting Rights Act

On Wednesday, the United States Supreme Court heard oral arguments in the case of Shelby County v. Holder. This case will decide the fate of Section 5 of the 1965 Voting Rights Act. All signs from the court’s demeanor on Wednesday morning point toward the end of this pivotal enforcement section of the Voting Rights Act. As of Wednesday evening, news outlets reported that SCOTUS remains divided on the issue.

The central question in the case is simple: Does racial discrimination in the voting processes of the United States still occur, and if so, is it enough for the federal government to have the authority to invade state rights to stop it?

On Wednesday, Justice Antonin Scalia took every opportunity to cast doubt on the necessity and continued relevance of the Voting Rights Act, even going so far as to suggest that it is a “racial entitlement.” The presumptive swing vote in most close cases, Justice Anthony Kennedy, also displayed some concern about the relevance of a law that is now nearly 50 years old.

With Justice Scalia and Justice Kennedy pointing toward the end of the protective provision, the last hope may fall once again to Chief Justice Roberts in the same way that it did during the Affordable Care Act (Obamacare) case. It is highly doubtful that Chief Justice Roberts will abandon his conservative colleagues again on this issue, especially considering his view that “the best way to end discrimination on the basis of race is to end discrimination on the basis of race.”

It seems that the Supreme Court is setting up to make a trade-off between one minority’s rights, African-Americans, for the rights of another, more recently popular minority, gays and lesbians. In the next few months, the Supreme Court will hand down their decision in Fisher v. University of Texas, the affirmative action case that is expected to end affirmative action policies in the United States; Shelby County v. Holder, the Voting Rights Act case argued on Wednesday that is expected to end the federal government’s ability to preemptively halt discriminatory voting practices; and the marriage equality cases, where the Supreme Court is expected to open the door to and show the way forward for full marriage equality in the United States.

The effect of the loss of Section 5 of the Voting Rights Act is essentially that the federal government will not be able to step in preemptively when the right to vote of groups of citizens is challenged by discriminatory practices. As an example, this year several voter ID laws were challenged and struck down for their potentially discriminatory effect. Much of this litigation leaned on Section 5 of the Voting Rights Act. Without this provision, the burden would be on the individual citizens to prove that the discriminatory law or prohibitive practice has actually hindered their right to vote before being able to challenge it. This means that the harm will have to occur before the practice is halted, but with voting, once an individual’s vote is inhibited the damage is already done.

This year’s Supreme Court term seems set on repealing many of the gains from the Warren Court/Civil Rights era. Voting is an essential right in any democracy — perhaps it is the essential right — but it is likely that some will have to fight a lot harder for it once this decision is handed down.

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Edward Williams

Edward Williams is currently a 3L at the Georgetown University Law Center. He is a 2009 Teach For America Atlanta Corps Member. He graduated from Howard University in 2009 with a BBA in International Business and Finance with honors. He has interned at JP Morgan and Merrill Lynch in their investment banking/sales and trading divisions, and was a 2010 Teach For America Policy and Advocacy Leadership (PALI) Fellow at the National Council on Teacher Quality in Washington, DC. Edward is originally from Savannah, GA.

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