Continuing his devolution into the crazy uncle who makes racially offensive remarks at family gatherings, Supreme Court Justice Antonin Scalia last week launched into a tirade against the Voting Rights Act (“VRA”) during oral argument in the case of Shelby County, Alabama v. Holder. Initially passed in 1965, to provide all Americans with an equal opportunity to vote, the VRA requires, among other things, that certain states and other Section 5 covered jurisdictions with a long history of discrimination against the voting rights of African Americans and others obtain U.S. Department of Justice pre-clearance before making changes to their election laws.
At issue in the Shelby County case is whether the pre-clearance requirement is still a necessary and constitutionally justified means of protecting the ability of African Americans and others in the covered areas to equally participate in our electoral system. In renewing the VRA for 25 years in 2006, Congress amassed a significant record of both ongoing discriminatory conduct regarding voting in covered jurisdictions, and of Section 5’s ongoing importance in preventing such discrimination. Challengers to Section 5, however, portray the law as an unconstitutional infringement on a state’s right to run its own elections, claiming that because discrimination has declined in both amount and intensity since the passage of the Act, there are less invasive ways to protect voting rights (such as lawsuits under Section 2 of the VRA to challenge a discriminatory election law or procedure), and/or because the designation of areas subject to the pre-clearance requirement is based on outdated voting information from the 1970s. Supporters respond that it is up to Congress, not the Supreme Court, to make these determinations.
Justice Scalia, however, apparently views the issue at stake in Shelby County as not whether the VRA is a necessary and constitutionally justified way to protect the right to vote. Instead, Scalia explained that he viewed the renewal of the VRA as:
“Attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”
Scalia’s contention that protecting voting rights somehow constitutes a “racial entitlement” suggests an extremely disturbing vision of equality, especially coming from a member of the U.S. Supreme Court. It also shows a stunning ignorance of history and the struggle that was needed to extend a meaningful right to vote beyond just white males in our society. As Congressman John Lewis (D-GA) explained in response to Scalia’s outburst:
“It is an affront to all of what the civil rights movement stood for, what people died for, what people bled for, and those of us who marched across that bridge 48 years ago, we didn’t march for some racial entitlement. We wanted to open up the political process, and let all of the people come in, and it didn’t matter whether they were black or white, Latino, Asian-American or Native American.”
Rep. Lewis, of course, was one of the civil rights advocates who was beaten and had his skull fractured by an Alabama state trooper for marching in favor of voting rights on Bloody Sunday in Selma, Alabama on March 7, 1965. And Rep. Lewis was comparatively lucky, as he (barely) survived Blood Sunday while many other civil rights activists were killed fighting for the right to vote. The Pragmatic Pundit collected the following list of just some of the people who gave their lives in order to achieve the right to vote. Justice Scalia would do well to consider those on this list and the history of the Civil Rights Movement in which they participated before dismissing equal participation in our electoral system as an “entitlement.”
May 7, 1955 · Belzoni, Mississippi
Rev. George Lee used his pulpit and his printing press to urge others to vote. White officials offered Lee protection on the condition he ended his voter registration efforts, but Lee refused and was murdered.
August 13, 1955 · Brookhaven, Mississippi
Lamar Smith was shot dead on the courthouse lawn by a white man in broad daylight while dozens of people watched. The killer was never indicted. Smith had organized blacks to vote.
September 25, 1961 · Liberty, Mississippi
Herbert Lee, who worked to help register black voters, was killed by a state legislator. Louis Allen, a black man who witnessed the murder, was later also killed.
April 23, 1963 · Attalla, Alabama
William Lewis Moore, a postman from Baltimore, was shot and killed because he planned to deliver a letter to the governor of Mississippi urging an end to intolerance.
1964 – Freedom Summer
The murders of James Chaney, Andrew Goodman and Michael Schwerner, demonstrated the dangers faced by civil rights workers in the south, during “Freedom Summer“, dedicated to voter education and registration.
The three were arrested for an alleged traffic violation and taken to the jail. They were released that evening. They were stopped by two carloads of KKK members on a remote rural road. The men approached their car, shot and killed Schwerner, then Goodman, and finally Chaney, after chain-whipping and mutilating him.
February 26, 1965 · Marion, Alabama
Jimmie Lee Jackson was beaten and shot by state troopers as he tried to protect his grandfather and mother from a trooper attack on civil rights marchers. His death led to the Selma-Montgomery march and the eventual passage of the Voting Rights Act.
March 11, 1965 · Selma, Alabama
Rev. James Reeb, a Unitarian minister from Boston, was among many white clergymen who joined the Selma marchers after the attack by state troopers at the Edmund Pettus Bridge. Reeb was beaten to death by white men while he walked down a Selma street.
March 25, 1965 · Selma Highway, Alabama
Viola Gregg Liuzzo, a housewife and mother from Detroit, drove alone to Alabama to help with the Selma march after seeing televised reports of the attack at the Edmund Pettus Bridge. She was driving marchers back to Selma from Montgomery when she was shot and killed by a Klansmen in a passing car. We would later learn that an FBI agent was a passenger in the KKK car.
August 20, 1965 · Hayneville, Alabama
Jonathan Myrick Daniels, an Episcopal Seminary student in Boston, had come to Alabama to help with black voter registration. He was arrested at a demonstration, jailed and then suddenly released. Moments after his release, he was shot to death by a deputy sheriff.
January 10, 1966 · Hattiesburg, Mississippi
Vernon Ferdinand Dahmer, a wealthy businessman, offered to pay poll taxes for those who couldn’t afford the fee required to vote. The night after a radio station broadcasted Dahmer’s offer, his home was firebombed. Dahmer died later from severe burns.
February 8, 1968 · Orangeburg, South Carolina
Samuel Ephesians Hammond Jr., Delano Herman Middleton and Henry Ezekial Smith were shot and killed by police who fired on student demonstrators at the South Carolina State College campus.