Justice Antonin Scalia calls a key component of the Voting Rights Act at the heart of fierce legal and political skirmishing a “perpetuation of racial entitlement.”

But I like law professor Justin Levitt’s analogy better. He blogged Tuesday that the law’s provision requiring states like Texas to get federal permission for voting rule changes is like a pair of sweatpants.

The law as originally passed in 1965 to tackle blatant racial discrimination might fit baggy today, but it comes with a drawstring to accommodate how covered jurisdictions have changed their ways. Rather than acting like a fashion critic and second-guessing Congress’ decision to reauthorize the law in 2006, Levitt argued, the Supreme Court should just decide whether the sweats still fit.

And if Congress wants a change of clothes, it has the constitutional power to make one.

There was no such simplicity to the imagery during Wednesday’s arguments in an Alabama case that could yield a Voting Rights Act ruling for the history books.

Justice Stephen Breyer tried, likening illegal discrimination against voters to a plant disease that’s gotten better but has not been eradicated.

Using this analogy, Section 5 critics would call the cure worse than the disease.

Section 5 requires nine states — Texas, Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina and Virginia — and a number of cities and counties in other states to run voting changes by the Justice Department or a federal court for approval. Those changes can be as simple as moving a polling place and as complicated as a redistricting plan.

When Congress renewed the law for 25 years in 2006, lawmakers relied on a 15,000-page record to decide it was still needed. But the states that must get preclearance argue that it isn’t fair for them to be covered when others aren’t.

Over the years, the court repeatedly has upheld the law’s constitutionality. But Scalia and Chief Justice John Roberts have made plain their disgruntlement with Section 5.

Keep in mind that the vote on the “Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act” in July 2006 was 98-0 in the Senate and 390-33-9 in the House.

But during Solicitor General Donald Verrilli’s defense of the law Wednesday, Scalia sounded more political analyst than constitutional interpreter.

He said diminishing opposition each time the act has been renewed is “very likely attributable to a phenomenon that is called perpetuation of racial entitlement.”

“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. …

“That’s the concern that those of us who have some questions about this statute have. It’s a concern that this is not the kind of a question you can leave to Congress.”

Reasonable people can differ on the continuing need for Section 5. But surely no one can reasonably argue that Scalia adheres to judicial restraint.


Distributed by MCT Information Services.