Rush Limbaugh recently bragged that conservative Justice Antonin Scalia should be "honored to be compared" to the radio host for disparaging the Voting Rights Act as a "perpetuation of racial entitlement" during the Shelby County v. Holder oral arguments. Other conservative justices also repeated right-wing media talking points as they considered the fate of this historic civil rights law.
Section 5 of the Voting Rights Act requires jurisdictions with a history of racially-based voter suppression to “pre-clear” election changes with federal officials or judges. By dismissing as a “perpetuation of racial entitlement” the fact that a bipartisan majority in Congress voted to reauthorize the law in 2006 - after reviewing thousands of pages of evidence that race-based threats to voting rights still exists in the covered jurisdictions - Scalia adopts the arguments of right-wing media.
Conservative media outlets have long complained that the extensive record of racial discrimination gathered by Congress during the 2006 reauthorization was "window dressing" and did not sufficiently justify the continuation of Section 5. Instead, right-wing media assert that "afraid of being labeled racist, a cowardly Congress renewed Section 5." Scalia echoed this condemnation of a “perpetuation of racial entitlement,” asserting it was the Court's job to usurp Congress's responsibility to enforce the Fifteenth Amendment because "they are going to lose votes if they do not reenact the Voting Rights Act."
Unsurprisingly, right-wing media are now defending Scalia's use of their talking point. Discredited Voting Rights Act opponent Hans von Spakovsky called the characterization "fair criticism," and Fox News host Megyn Kelly and regular guest Jay Sekulow were outraged at the outrage over Scalia's characterization of Section 5 as a “racial entitlement.” From the March 4 Fox News edition of America Live:
SEKULOW: That's not some controversial statement. The media is making this out to be, and some on the left are making this out to be as if, you know, Justice Scalia's made some racial statement that is inappropriate. He did nothing of the sort. All he said was, pointing out a fact. If you look at the facts now, Massachusetts had the worst ratio of voting as far as minority voting goes and white majority voting goes. Massachusetts was the worst. So when you look at a law that's been in place for over a half a decade you say you know, facts and circumstances can change that will impact the constitutionality of that statute. That shouldn't be a controversial statement, but the fact that he said it, it's being voted on almost on autopilot which it is in the Congress, he says you know, it gives this look that it's just kind of this racial preference, that we're just going to do it because we've always been doing it.
KELLY: On the question of Justice Scalia- the accusation by some has been that some on the left are using this, they're trying to gin up controversy about this, trying to paint Justice Scalia as a racist or insensitive racially, when it's understood that what he was trying to say was, sort of what you were saying, which is that it passed unanimously in the last vote and he was saying that the numbers of folks voting for the Voting Rights Act has gone up and up and up over the decades as indisputably, the discrimination at the polls, while still present, has gone down and down and down. And he was saying the reason politicians do that, is because they don't want to see as voting against the Voting Rights Act. And so you may need the high court to come in and say, look, it's no longer necessary.
Professor of Law and former Department of Justice official Spencer Overton was one of many who noted the similarities in rhetoric between right-wing media and Scalia. Professor Overton also joined those who pointed out that Scalia and his colleagues on the Supreme Court are supposed to check Congress when it is infringing on civil rights, not when it is vindicating them. From The Huffington Post:
Justice Scalia said he thinks Congress's decision in 2006 to renew Section 5 was motivated by a “perpetuation of racial entitlement.” It was the kind of political screed you might hear from Rush Limbaugh. Scalia's baseless platitude could just as easily be made in the opposite direction--someone could claim Scalia wants to strike down voting protections to “perpetuate racial entitlement” whites have enjoyed for centuries. Neither assertion is appropriate in a court of law.
Contrary to Scalia's belief, renewal was motivated not by “racial entitlement,” but by findings of voting discrimination. Congress found that discrimination remains concentrated in covered states based on 21 hearings, the testimony of over 90 witnesses, and a 15,000-page record. For example, Congress found that more than 750 Section 5 objections blocked approximately 2400 discriminatory voting changes between 1982--when Section 5 previously was reauthorized--and 2006. It also recognized that 650 successful voting rights lawsuits were brought in covered jurisdictions.
Scalia's “hunch” about perpetuating “racial entitlement” is not legal reasoning. Instead, his hunch reveals that Congress is much better equipped than the Court to determine whether voting discrimination remains concentrated in covered areas.
Scalia was not the only conservative justice who drew praise for repeating right-wing media talking points during oral arguments. Sekulow also defended Chief Justice Roberts for comparing voter of color turnout in Massachusetts with that in Mississippi. Roberts used the alleged disparity to echo the conservative complaint that Section 5's focus on southern states is unfair because voter suppression equally exists in the North.
Not only did Mississippi refute Roberts' underlying assertion that their current conduct of elections renders Section 5 unnecessary, Justice Stephen Breyer also debunked the premise that a focus on the South is automatically suspect when he noted, "what do you think the Civil War was about? Of course [Section 5] was aimed at treating some States differently than others." It also appears Roberts' insistence - repeated by Sekulow - that Massachusetts is the “worst” and therefore illustrates the irrationality of Section 5, is incorrect. From NPR's Nina Totenberg:
[A] close look at census statistics indicates the chief justice was wrong, or at least that he did not look at the totality of the numbers.
Here's the deal. The Census Bureau does voting surveys to look at voting patterns nationwide, but the survey is based on a very small sample. Most recently, in 2010, the survey looked at 94,208 voters nationwide. Break that up into roughly proportional samples in each state, Census officials say, and it is really not possible to compare states because those with relatively low minority populations have a much higher margin of error.
The number of black citizens eligible to vote in Massachusetts is 236,000, while it is 721,000 in Mississippi, more than three times that number. Therefore, according to Census officials, when looking at the estimated turnout rate in Massachusetts, the voting percentage for African-Americans at first blush is estimated at 39.3 percent. But the margin of error is 11.5 percentage points, meaning that the black voter turnout actually could be as high as 50.8 percent (or, conversely, as low as 27.8 percent).
Now, look at Mississippi, where black turnout is listed at 48.7 percent. But because of the large size of the African-American population that was sampled, the margin of error is only 5.4 percentage points.
That means that factoring in the margin of error, the black turnout rate in Mississippi could be as high as 54.1 percent, or as low as 43.3 percent.
So, if you factor in the margins of error at their extremes -- with Mississippi at the low end and Massachusetts at the high end -- Mississippi could have had a black voter turnout rate that was 7.5 percentage points lower than Massachusetts.
Right-wing media not only tried to attack Section 5's concentration on the Southern states by denying, as Chief Justice Roberts did, that voter suppression occurs more regularly in covered states, they also argued the Constitution prohibits this focus. For example, on the March 2 edition of Fox News' Journal Editorial Report, Wall Street Journal deputy editor Dan Henniger approvingly cited a comment from Justice Anthony Kennedy about the “equal footing” doctrine as proof that “under the Constitution,” it's prohibited to "discriminate against seven states if you're not going to apply the law equally to the rest of the states in the union."
This appeal to "equal sovereignty" is not grounded in the text of the Constitution. Furthermore, Justice Ruth Ginsburg explicitly noted during oral arguments that the “equal footing” doctrine is not a universal principle and was instead developed as a specific examination of what conditions could be imposed on states before they join the Union. As Zachary Price of the Stanford Constitutional Law Center detailed:
The Supreme Court developed the equal footing doctrine to address a particular problem. Congress has constitutional authority to admit new states to the Union, but if it could impose any condition it liked on the admission of a new state, it might use that power to create second-class states. In other words, it might disadvantage new states by impairing their sovereignty in ways that it couldn't have done for the old states. To prevent such discrimination against new states, the Court held that congressional conditions on a state's admission to the Union are enforceable only if Congress could have imposed them on an existing state.
What [South Carolina v.] Katzenbach actually said with respect to Section 5 is that "[i]n acceptable legislative fashion, Congress chose to limit its attention to the geographic areas where immediate action seemed necessary. The doctrine of the equality of States, invoked by South Carolina, does not bar this approach, for that doctrine applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared" (citations omitted, emphasis added). The Court in Katzenbach thus recognized that the tradition of equal sovereignty reflected in the equal footing doctrine applies only to improper admission conditions; it has no bearing on the constitutionality of Section 5.
In fact, it would be particularly odd to apply a principle of state equal treatment to legislation like Section 5 based on Congress's Fourteenth and Fifteenth Amendment enforcement powers. Those Amendments, after all, were adopted principally to address concerns about discrimination against freed slaves - a problem obviously concentrated in one region of the country.