Justice Scalia's staggering assertion of judicial activism

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Since the Voting Rights Act was enacted in 1965, Congress has reauthorized it four times, most recently in 2006. On each occasion, we have found that the jurisdictions covered by Section 5 have compiled a record of suppressing minority voting.



In 2006, the Senate reached this conclusion 98-0.  In the House, the vote to reauthorize passed 390 to 33.



Justice Scalia speculated that these votes were no more than political popularity tests. We are left to wonder which votes in the Congress are not.



Perhaps the Justice temporarily overlooked the fact that the Fourteenth and Fifteenth Amendments to our Constitution vest the power of enabling legislation in the Congress – not the Supreme Court.



Since 1965, Congress and five presidents have acted to create or preserve our nation’s core legislative guarantee that we will “ensure that the right of all citizens to vote, including the right to register to vote and cast meaningful votes, is preserved and protected as guaranteed by the Constitution.”



On four previous occasions, the United States Supreme Court has upheld the constitutionality of the judgments that we in the Congress and our Presidents have made.
 


As recently as 2006, we in the Congress reaffirmed our judgment that Section 5 remains vital to ensure that minority voters have free and full access to the polls – and, as argued by all who support the Act’s constitutionality, the Supreme Court has traditionally considered these determinations to be an appropriate exercise of Congress’s authority under the Reconstruction Amendments.
 


In 2006, Congress considered an extensive factual record – a record that was found to be especially significant by the lower federal courts that have reviewed the current challenge to Section 5.  We held 21 hearings, received the testimony of more than 90 witnesses, and reviewed more than 15,000 pages of supporting materials.
 


That extensive process left no doubt that “conduct transgressing the Fourteenth Amendment’s substantive provisions persists in the covered jurisdictions.
 


Specifically, Congress found ample evidence of voting discrimination in the jurisdictions covered by Section 5, including intentional discrimination as documented by continued disparities in registration and turnout; low levels of minority elected officials; the number of Section 5 enforcement actions since 1982; the amount of Section 2 litigation; and evidence of racially polarized voting.
 


Our judgments in 2006 have proven well-founded.  During the election last year, Section 5’s preclearance process led South Carolina officials to reinterpret a photo ID law to reduce its discriminatory effect. 



It also blocked a stringent Texas photo ID law that would have had a retrogressive effect on minority voters’ access to the ballot.
 


Likewise, recent litigation arising from Texas’ redistricting validates Congress’ concern that intentional racial discrimination in voting continues to pose a credible threat to the rights of minority voters.  



In addition, on October 12, 2012, the Institute for Research and Education on Human Rights issued a report concluding that poll monitoring efforts in North Carolina appeared to be aimed at African American and other minority communities.
 


And early voting is under attack in many states precisely because it is utilized so heavily by minority voters. As one Ohio Republican official admitted last year, these efforts are intended to undermine what he called “the urban — read African-American — voter-turnout machine.”



So although Justice Scalia is free to express his own personal disagreement with the policy decisions we make — and inform his elected leaders of his views — Justice Scalia should refrain from using his position on the Supreme Court to dismiss the legitimacy of our votes in Congress.
 

Cummings has represented Maryland’s 7th Congressional District since 1996.