Opinion: Supreme Court should not risk racial progress on voting rights

In June the Supreme Court is set to make history with a ruling on the constitutionality of a key provision of the Voting Rights Act. This is potentially the biggest ruling on racial politics since the 1954 Brown decision on ending public school segregation.

As this century gets started, the nation lives with a deep racial divide in Congress and at every other level of American politics. At the moment there are no black Republicans in the House. Barely 20 percent of the Latinos in the House are Republicans (7 of 34). Then there is the GOP’s statistical dominance of politics in the old Confederate States of the South. When those numbers are combined with the astoundingly low 8 percent of Republicans in Congress who are women it becomes difficult to see the GOP as anything other than primarily a party of white men.

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Racially divided support for President Obama –with 90 percent of blacks and more than 70 percent of Hispanics and Asians supporting him while 60 percent of whites opposed him at the last election – is another indication of the current racial divide in politics.

The 2012 GOP primary featured racially charged language such as labeling the first black president the “food stamp” president and calls for building walls on the southern border to keep out undocumented Latino immigrants.

The grassroots movement at the heart of today’s GOP activism is the Tea Party, a group with an older, near all-white membership and a troubled racial history, including an embarrassing defense of slavery by one participant in a Tea Party panel at the recent Conservative Political Action Conference.

The last 10 years of racial gerrymandering of Congressional districts has heightened the racial dimension of the normal Republican versus Democrats political fight. And with a growing minority population already exceeding a third of the nation and heavily favoring Democrats, there is every incentive, as a matter of hardball politics, for Republicans to depress the non-white vote.

Recent voter suppression strategies from Republicans include attempts at re-drawing Congressional districts to limit the influence of minority votes in white majority districts. Other GOP attempts to curb votes from racial minorities include purging voter registration rolls, limiting days for voting, limiting hours of operation for voting precincts and enacting voter-identification laws.

The Supreme Court case focuses on an Alabama challenge to Section 5 of the 1965 Voting Rights Act. The lawsuit argues that Section 5 is unfair because it requires Alabama and eight other southern states (as well as parts of seven more states) to get clearance from the federal government for any changes in voting procedures. Each of the jurisdictions covered by Section 5 have a history of racially discriminatory treatment of black voters.

In the past election cycle the Justice Department used Section 5 to block Congressional redistricting in Texas that it argued depleted the impact of the state’s growing minority vote. Justice also used the law to delay implementation of photo-identification requirement for voting in South Carolina.

But Alabama’s Shelby Country contends there is no evidence of current bias against minority voters and it should not be subjected to a higher level of scrutiny in setting the rules for voting than any other part of the nation.

The argument is supported by recent census data showing black voter participation in the U.S. exceeded white voter participation for the first time in history. Also, a recent November Pew poll found few reports of people of any race having trouble casting their vote. The high rate of black voting and absence of any reported bars to minority voters may be the basis for the high court ruling that Section 5 is no longer necessary. But the data can also be seen as evidence of the success of Section 5 in blocking efforts to stop minority voting.

Chief Justice John Roberts seemed to be making the case for ending Section 5 during oral arguments earlier this year when he cited 2004 Census data. Those numbers showed Mississippi, a southern state covered by Section 5, now has a better ratio of black to white voters than Massachusetts, a state not covered by the law. But that argument does not consider what might have happened in Mississippi without Section 5 protection for black voters.

Justice Antonin Scalia, also during oral arguments, appeared similarly opposed to retaining Section 5. He described the continued use of the “pre-clearance” provision of the Voting Rights Act as part of “a phenomenon that is called perpetuation of racial entitlement.” He explained that after a “society adopts racial entitlements, it is very difficult to get out of them through the normal political process.”

Justice Scalia’s “entitlement” comment took aim at Congress’ four votes since 1964 to extend the Voting Rights Act (VRA), including Section 5. The most recent renewal was in 2006. At that time the Senate voted 98-0 to reauthorize the VRA. In the House, with a Republican majority, the vote favoring extension was 390-33. Justice Scalia’s remarks suggested that the VRA got support in Congress because politicians feared a politically correct backlash of public opinion if they end the racial “entitlement” in Section 5.

With that perspective, Justice Scalia is turning away from the reality of systematic, on-going efforts by Republicans to depress minority voter turnout for their political benefit. In addition, the right to vote is not a racial entitlement. It is a right guaranteed by the Constitution.

Linda Greenhouse, a Supreme Court analyst writing for the New York Times’ website, said Justice Scalia’s argument that the VRA is now an “entitlement” is blind to the political nature of public opinion and representative government. “Justice Scalia,” she wrote, “that’s called democracy.”

And the U.S. Court of Appeals for the District of Columbia in upholding Section 5 in the Shelby County case agreed: “Congress’ judgment deserves judicial deference,” it stated.

The wise men and women on the Supreme Court have no way to know if overturning Section 5 will reverse nearly 50 years of progress in eliminating racist political schemes to limit the power of minority voters. But at a time of increasing racial politics in the nation, the high court will be placing a racially explosive bet if they eliminate Section 5.

Juan Williams is an author and political analyst for Fox News Channel.