Monday, March 11, 2013

Voting Rights: Racial Entitlement or Constitutional Right

Is the fifteenth amendment any less important than the second amendment?  Should laws passed to reinforce it be any less robust than those passed to support any other amendment?  If a law was passed 50 years ago and survived a Supreme Court challenge should it not be considered the law of the land?

The fifteenth amendment, ratified on February 3, 1870, simply states:

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation

Pretty straight forward coming after the end of the civil war, the right to vote would not be denied due to race, color, or whether you were a slave (sadly women would have to wait another 50 years for the nineteenth amendment) oh and the kicker: Congress shall have the power to enforce it.  Of course where there’s a will to suppress there are ways.  Southern racist bigoted states and municipalities started immediately to put in barriers including literacy tests to prevent blacks from voting.

95 years later, President Lyndon Johnson signed into law The Voting Rights Act of 1965 (you remember that little section on Congress having appropriate power to enforce the act) and within months its constitutionality was challenged and the government was victorious.  While the Act is permanent, Section Five is considered temporary and requires re-approval by Congress.  The controversial Section Five sets the requirement that some states, based on a formula in Section Four, cannot make changes to election laws without the approval of the DOJ or the District Court of Washington D.C.   Since then Congress has expanded the coverage formula twice and renewed Section Five four times.  In 2006, Section Five was extended for 25 years.

The Supreme Court recently heard arguments that Section Five is no longer applicable based on the assertion that racism is no longer a threat to voters and that Congress used improper data in determining which states and counties were still obliged to meet Section Five requirements.  During oral arguments Justice Scalia called the Voting Rights Act “a perpetuation of racial entitlement” and Justice Kennedy stated “the Marshall Plan was very good too…but times change.”  First the former, it is obvious that Justice Scalia would have been right at home on the Taney Court known for its horrendous Dred Scott decision stating that the federal government had no authority to regulate slaves or freed slaves since slaves were property.  Yes that entitlement to what America is allegedly built upon.  As for the Kennedy comment, one could make the same argument that the second amendment may have been good, but times change.  Rich white guys deciding what is racist, what is right, and what is entitlement.

Above all, I am curious as to the legal merits of the challenge.  I am not a constitutional lawyer, but it seems to me that Congress acted within the powers granted to it by the fifteenth amendment.  The law and subsequent extension may be bad, they are not, but they shouldn’t be struck down on constitutional grounds.  And if you do not think voter suppression isn’t alive and well, you must have been living on the moon during the 2012 election period.  In fact voter suppression, in veiled racism or otherwise, is no longer the domain of the south, just look at Ohio and Pennsylvania.

No, if the government and the courts think it is OK to err on the side of security over liberty in matters of surveillance and defense, then isn’t it the responsibility of these bodies to err on the side of protecting individual freedoms over states’ rights?


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