A few weeks ago, Justice Antonin Scalia referred to the Voting Rights Act as a “perpetuation of racial entitlement.” Now, he’s topped himself, as George Washington University law professor Spencer Overton explains:
…on Monday night, Scalia told a group of students that the provision is an “embedded” form of “racial preferment.” He believes the provision is a racial entitlement because the federal government does not take a similar interest in protecting the voting rights of whites.
Even aside from improperly commenting on a pending case, Scalia is wrong.
Section 5 of the Voting Rights Act — currently under review by the Court — is not a quota system to elect minority candidates. Instead, it is an enforcement tool to prevent voting discrimination. Section 5 requires that covered states “preclear” their proposed election law changes with federal officials to ensure the changes are not discriminatory. Nine states plus parts of six others are “covered.” States and localities that maintain a clean record for 10 years can “bail out” of coverage.
The 15th Amendment of the U.S. Constitution explicitly authorizes Congress to pass laws like Section 5 tailored to prevent voting discrimination. Those who subscribe to “original intent” know the initial motivation for the Fifteenth Amendment included preventing white Southern politicians from winning elections by manipulating election rules to deny or dilute African-American votes.