Scalia’s Goal Of Unwinding Voter Rights Becoming A Reality

The late Antonin Scalia - a seeming racist and champion of Christofascist rights.

The late Justice Antonin Scalia embodied much of what is wrong with today's Republican Party and its agenda of special rights for right wing Christian extremists and deference to white supremacist inclinations.  This is especially true when one looks at Scalia's hostility to minority rights.  The irony is that given Scalia's own ethnic and religious background - Italian Catholic - that saw his own ancestors targeted for hate and bigotry, one would think the man might have had some tiny shred of empathy for other despised groups.  Any such assumption, however, sadly would be totally wrong.  Now, the entire GOP seeks to roll back voting rights protections to favor whites and to disenfranchise minority voters as the GOP finds it increasingly difficult to attract voters outside of vulture capitalists, Christian extremists and, of course, white supremacists.  A piece in Talking Points Memo by a law professor looks at the danger that the U.S. Supreme Court may further embrace Scalia's agenda and spread America's slide back towards pre-1964 voting obstacles to minority voting rights.  Here are highlights:

In a Supreme Court term already bursting with election cases, from two partisan gerrymandering disputes to a fight about the permissibility of Ohio’s voter purges to a lawsuit challenging bans on political clothing in Minnesota polling places, it’s easy to overlook yet another significant voting appeal the Court will hear later this month. In Abbott v. Perez, the Court will examine whether the state of Texas violated the Voting Rights Act and the United States Constitution when it drew congressional and state legislative district lines in ways that hurt Latino and African-American voters. The protracted and difficult litigation involves redistricting plans from way back in 2011 and shows how much was lost when the Supreme Court killed another key provision of the Voting Rights Act in its 2013 Shelby County v. Holder case.

We may soon fulfill the late Justice Antonin Scalia’s vision of an emasculated Voting Rights Act and much weaker protections for minority voters by the federal courts.

In the pre-Shelby days, the Voting Rights Act offered two main tools to protect minority Voting Rights. Under Section 5, states which had a history of racial discrimination in voting had to get “preclearance” (or pre-approval) from the U.S. Department of Justice or a federal court in Washington, D.C. before making any changes in voting rules and procedures. States had to show the DOJ or the court that any changes would not worsen the condition of minority voters. Under Section 2, the U.S. government or private plaintiffs could bring suit anywhere in the U.S. arguing that a redistricting plan (or other voting rule, like a state voter id law) deprived minority voters of the same opportunity as white voters to participate in the political process and to elect representatives of their choice.

The Roberts Court’s record on reading and enforcing the Voting Rights Act has been a disappointing one, which is no surprise given that Chief Justice John Roberts himself was an opponent of a strong Voting Rights Act when he worked in the Reagan Administration to weaken minority voter protections in Section 2.

Even before Roberts became chief justice, the Court already had a relatively weak record enforcing Section 2. . . . . And that’s all aside from non-Voting Rights Act cases cutting back on voting rights such as a 2008 case rejecting challenges to the constitutionality of discriminatory voter identification laws.

The Texas case that the Court will hear this term shows just how hard it is to protect minority voting rights. Texas’ 2011 redistricting plans originally could not be put in place because a federal court had not precleared it under Section 5. A separate lawsuit sought to block parts of the plans under Section 2, and the same federal court issued an interim remedy, which led to Texas passing a similar discriminatory plan in 2013 claiming the re-enactment solved Voting Rights Act problems. The Section 5 lawsuit went away when the Supreme Court decided Shelby County, but the Section 2 lawsuit has dragged on . . .

Since the case started, it is hard to find friends for the Voting Rights Act in any of the three branches of government. The Department of Justice, which came in on the side of minority voters in the Texas litigation, has switched sides now that the Trump Administration has taken over. That means U.S. Solicitor General Noel Francisco will be arguing in favor of Texas’s position in the case at the Supreme Court.

Congress, meanwhile, has not acted to fix the formula for deciding which states need to get Section 5 preclearance, even though the Court in Shelby County invited Congress to try.

And the Supreme Court is poised to make things worse. With rumors circulating that perennial swing Justice Anthony Kennedy could retire as soon as this term, the Court is likely to lurch to the right. As I argue in my new book, The Justice of Contradictions: Antonin Scalia and the Politics of Disruption, the late conservative Justice Antonin Scalia took an even narrower view of Voting Rights than the Court as a whole, and now, after his death, Justice Scalia’s influence is only growing.

Justice Scalia openly expressed disdain for the Act, expressing the view at the Shelby County oral argument that Congress renewed the Act in 2006 by overwhelming majorities because of “a phenomenon that is called perpetuation of racial entitlement.”

The bottom line is that the Court’s mixed record on enforcing the Voting Rights Act could soon get worse if Trump gets another Court appointment. Minority voters, already at a disadvantage in many parts of the country because of enduring racism and the unwillingness of white voters to support minority candidates for office, could soon have tougher political battles ahead. And the scariest part is that, thanks in part to Justice Scalia’s influence, the courts may soon no longer be there as a backstop.

Sadly, the bottom line is that the GOP would love to move the nation back to the Jim Crow era.  Yet another reason why a massive Democrat, moderate and progressive turn out is needed in November to flip the House of Representatives and - ideally - the U.S. Senate to Democrat control.