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Justice Scalia's Latest 'Racial Entitlement' Remark

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A few weeks ago, Supreme Court Justice Antonin Scalia said that a key provision of the Voting Rights Act was motivated by a "perpetuation of racial entitlement."

Now comes word that 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.

Recent facts show discrimination against voters of color remains concentrated in covered states. For example, covered areas account for less than 25 percent of the nation's population, but more than 80 percent of successful voting discrimination lawsuits under another provision that applies nationwide. Extreme white bloc voting -- which fuels political operatives' incentives to suppress minority voting -- is about twice as likely in covered areas as non-covered areas.

Based on 21 hearings, over 90 witnesses, and a fifteen-thousand-page record, in 2006 Congress determined that discrimination against voters of color remains concentrated in covered states, and overwhelmingly renewed Section 5.

Scalia is skeptical of a law tailored to prevent racial discrimination against people of color, even though other voting laws are tailored to address unique challenges faced by other populations. Federal law, for example, mandates that states send absentee ballots to military and overseas voters early enough to be completed, returned, and counted. Federal language assistance requirements ensure that those with limited English proficiency can cast a meaningful ballot.

Scalia mentioned the need to protect the voting rights of "white" people, but unfortunately he has not done so himself. He has consistently cast the deciding vote to allow extreme partisan gerrymandering, whereby politicians diminish the voting rights of Americans of all backgrounds by strategically packing Democrats and Republicans into particular districts. Had Scalia protected voting rights and stopped gerrymandering, voters would select politicians more often, rather than politicians selecting voters.

Section 5 is important to the future of our democracy. Turnout by growing numbers of voters of color determined the 2012 election. Within three decades the entire United States is projected to become majority-minority. Unfortunately, rather than winning by responding to a diverse group of Americans, some Republican politicians have passed laws that make it harder to vote. Section 5 is one of the few legal tools that prevent politicians from manipulating rules to win elections. We need it because all Americans should be entitled to vote.

Elections allocate power not only in Congress and the White House, but eventually shape the judicial bench. In light of our nation's changing demographics, future Justices may reject Justice Scalia's opinions. Rather than postpone this emerging America by striking down voting rights protections, a majority of the Court should respect the 15th Amendment and uphold Section 5.

Spencer Overton is a Professor of Law at The George Washington University Law School and a Senior Fellow at Demos. He is the author of the book Stealing Democracy: The New Politics of Voter Suppression.