In recent decades, support for the Voting Rights Act became nearly universal -- that is, until very recently. As much of the right has become increasingly radicalized, the VRA has become a popular target, and Attorney General Eric Holder recently noted that there have been more conservative legal challenges to the Section 5 of the VRA over the past two years than during the previous four decades.
The timing of these challenges is not coincidental -- GOP policymakers nationwide launched an ambitious "war on voting," deliberately creating longer voting lines, closing early-voting windows, addressing imaginary voter fraud through punitive voter-ID laws, restricting voter-registration drives, and overseeing an anti-voting campaign unlike anything seen in the United States since the days of Jim Crow. In many parts of the country, the Voting Rights Act has stood in the way of the larger conservative agenda.
This in turn set the stage for a historic Supreme Court showdown, which after this morning's oral arguments, appears to heavily favor Republicans.
A central provision of the Voting Rights Act of 1965 may be in peril, judging from tough questioning on Wednesday from the Supreme Court's more conservative members.
Justice Antonin Scalia called the provision, which requires nine states, mostly in the South, to get federal permission before changing voting procedures, a "perpetuation of racial entitlement." Chief Justice John G. Roberts Jr. asked a skeptical question about whether people in the South are more racist than those in the North. Justice Anthony M. Kennedy asked how much longer Alabama must live "under the trusteeship of the United States government."
The court's more liberal members, citing data and history, said Congress remained entitled to make the judgment that the provision was still needed in the covered jurisdictions.
Last summer, during some of Scalia's partisan antics, a constitutional law professor at UCLA said the conservative jurist "has finally jumped the shark." If that was true in June, I think it's fair to say "perpetuation of racial entitlement" is proof that Scalia has already taken the skis and the leather jacket off, but just doesn't care about credibility anymore.
For voting-rights proponents, there's a lot to find discouraging. The five-member conservative majority, by all accounts, was deeply skeptical of the VRA this morning, and while Chief Justice John Roberts was willing to break ranks on health care, Roberts has also been trying to tear down the Voting Rights Act for much of his career. Voting-rights supporters can hope Justice Kennedy might be the swing vote, but it appears to be a long shot.
Roberts and Justice Anthony Kennedy, who led the questioning challenging the Voting Right Act, both labeled the formula used for Section 5 "reverse engineering."
Kennedy said the formula "obscures the real purpose." He declared that "if Congress is going to single out states, it should do so by name." Although he said there's no question Section 5 was "utterly necessary" in 1965, its validity now is "not clear" to him.
"The Marshall Plan was very good too," Kennedy said. "But times change."
It would appear the consensus among conservatives is that systemic discrimination and institutional racism throughout the South was a problem before, but that unpleasantness is behind us, which necessarily means the Voting Rights Act has outlived its usefulness.
As Rep. John Lewis' (D-Ga.) reminded us the other day, those assumptions are wrong.
In 2006, Congress debated this very question over 10 months. We held 21 hearings, heard from more than 90 witnesses and reviewed more than 15,000 pages of evidence. We analyzed voting patterns in and outside the 16 covered jurisdictions. We considered four amendments on the floor of the House; the Senate Judiciary Committee considered several others.
After all of that, Congress came to a near-unanimous conclusion: While some change has occurred, the places with a legacy of long-standing, entrenched and state-sponsored voting discrimination still have the most persistent, flagrant, contemporary records of discrimination in this country. While the 16 jurisdictions affected by Section 5 represent only 25 percent of the nation's population, they still represent more than 80 percent of the lawsuits proving cases of voting discrimination.
For VRA advocates, the problem remains a national scourge in need of a remedy that's already in place. For VRA proponents, there is no problem, so the remedy is superfluous.
We can expect a final ruling from the Supreme Court over the summer. It's probably best to start lowering expectations now.