Now that the arguments before the Supreme Court have been held and the rally outside the court has ended, there’s not much left to do except wait for a decision on the Voting Rights Act of 1965 and its survival of section 5. The chant heard outside the Supreme Court for those rallying in support was “Keep 5 Alive.” There were no people rallying against the Voting Rights Act.
As usual, it appears the justices are split with the 4 justices, particularly the 3 women Justices Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan in support of keeping section 5. While it appears that the conservative justices seem ready to gut it. Particularly, Justice Scalia who seems to think that section 5 somehow means a “racial entitlement.” Voting rights are a democratic constitutional right. It is what democracy is based on. Even a few states that are under the provisions of the pre-clearance of section 5 support continuing it, including the southern states of North Carolina and Mississippi. In the final analysis, the heart and soul of the Voting Rights Act of 1965 is hanging on by a fine thread.
It was painfully ironic that on the same day and almost at the same time that the Supreme Court was hearing argument on the Voting Rights Act, President Obama was giving a speech in honor of a statue of Rosa Parks being placed at the Capitol. His speech was being made directly across the street from the U.S. Supreme Court at the Capitol. It was Rosa Park’s efforts that helped to ignite the civil rights movement from which the Voting Rights Act of 1965 was enacted. It is also ironic that the more conservative justices believe like Rosa Parks, the Voting Rights Act of 1965 is and should be past history. Yet, one would have to be blind, deaf and dumb to believe that there is no longer racial discrimination in voting rights committed by states covered under Section 5. Just looking at attempted changes to laws in Texas, South Carolina and Florida in 2012 shows the further need for the pre-clearance section. They attempted to make changes that would have disenfranchised minorities. In the case of Texas and South Carolina, the U.S. District Court sided with the Department of Justice’s conclusion that the proposed laws disenfranchised minorities.
Unfortunately, the Supreme Court is divided among the liberals and conservatives. There are 4 liberal justices appointed by Democratic presidents with the other 5 appointed by Republican presidents. Justice Clarence Thomas prior to hearing any argument has indicated a bent towards ending the pre-clearance section. Chief Justice Roberts is no lover of section 5 either. And so, in the final analysis, we don’t know how the Court will decide. One thing is clear—in order for the Voting Rights Act, section 5 to survive, it will need life support from Justice Kennedy who has been known to be a swing vote on occasions. Whether Justice Kennedy will swing with the four liberal leaning justices remains to be seen. And even Justice Kennedy stated at the hearing, “times change”—not a good sign for keeping section 5 alive.
A decision is not expected until late June. And no one knows which way the court will rule. If the Supreme Court should strike down the pre-clearance section 5 of the Voting Rights Act, it will give the southern states involved carte blanche to go “buck wild” on disenfranchising minority voters. And in the end process, democracy will be compromised. The Shelby County v. Holder decision is one of the most important decisions of our democracy.