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The "Law" of Perpetuating Racial Entitlement

I attended the oral argument in the Voting Rights Act case before the U.S. Supreme Court, and I came away even more convinced that the Court should uphold the contested parts of the law.

Section 5 of the Voting Rights Act requires that covered states "preclear" their proposed election law changes with federal officials. Nine states plus parts of seven others are "covered," and many of these areas are in the South.

Conservatives often complain about "activist judges legislating from the bench." But some of the more conservative Justices' comments reveal that the fate of the Voting Rights Act should be a decision for Congress, not for the Court.

Perpetuation of Racial Entitlement?

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.

South More Racist?

Chief Justice Roberts asked, "[I]s it the government's submission that citizens in the South are more racist than citizens in the North?" Roberts also dramatically emphasized that racial disparities in turnout are much greater in Massachusetts (an uncovered state) than Mississippi (a covered state).

But these points are not at issue. Congress did not base 2006 renewal coverage on turnout (a 1965 problem) but on contemporary forms of discrimination, such as voting rights violations (e.g., discriminatory redistricting, cancelling elections, and more). Congress rationally found that voting discrimination remains concentrated in the covered states. For example, covered areas account for less than 25% of the nation's population, but more than 80% of successful lawsuits under Section 2 of the Voting Rights Act (which applies nationwide).

Again, Justice Roberts's point could just as easily have been made in the opposite direction. Voting Rights Act supporters could emphasize that Massachusetts is the only state with an African-American governor, and that whites nationwide were four times more likely to vote for Barack Obama than whites in Mississippi. Rather than cherry pick racial facts on either side, the Court should defer to Congress's rational determination--based on various expert studies--that voting discrimination remains concentrated in covered states.

Equality of States

During oral argument Justices Alito and Scalia complained that Section 5 singles out particular states for coverage. The lawyer arguing to invalidate the coverage provision suggested it violates a doctrine of "equal sovereignty."

But the U.S. Constitution contains no such "equality of states" requirement. As Justice Sotomayor pointed out, the federal government "can't treat states the same because their problems are different, their populations are different, and their needs are different." Some states hit by hurricanes need disaster relief. Some states with more voting discrimination need special measures like preclearance.

Conservatives routinely argue that "judges should not make up law." In this case, a handful of Justices should not make up an "equality of states" doctrine. Instead, the Justices should follow the text of the 15th Amendment, which explicitly gives Congress the power to prevent the denial or abridgement of the right to vote through legislation like the Voting Rights Act. The Court should defer to Congress's decision to favor equal protection of voters over equal treatment of states.

Spencer Overton is a Professor of Law at The George Washington University Law School and a Senior Fellow at Demos. He is the author of the book Stealing Democracy: The New Politics of Voter Suppression.

This post originally appeared at The Huffington Post