“A racial entitlement”

John Roberts has opposed voting rights for decades. It was a lost cause for the first 3 decades and more, but now he’s getting somewhere.

Among other things, Roberts dismantled much of the Voting Rights Act in Shelby County v. Holder (2013), and he’s joined decisions making it much harder for voting rights plaintiffs to prove they were victims of discrimination. On the basic question of who is allowed to vote and which ballots will be counted, the most important issue in any democracy, Roberts is still the same man who tried and failed to strangle the Voting Rights Act nearly four decades earlier.

As originally enacted, the Voting Rights Act required jurisdictions with a history of racist voting discrimination to “preclear” any new voting-related laws with the Justice Department or with federal judges in Washington, DC. But this preclearance provision was initially scheduled to expire five years after the law was signed in 1965.

That meant that in 1970, while Richard Nixon was president, Congress had to decide whether to extend the preclearance requirement or allow it to expire. And, because Congress never made the preclearance requirement permanent, Congress also chose to extend this requirement again in 1975, in 1982, and in 2006.

A Republican president every time.

As Sen. Trent Lott (R-MS) told Reagan in October of 1981, conservative lawmakers feared that “anyone who seeks to change” an expansive voting rights renewal that had already passed the House “will risk being branded as racist.”

But now – it’s cool to be racist again!

As Edward Blum, a wealthy anti-civil rights activist who would go on to be the driving force behind the Supreme Court case that gutted preclearance in 2013, complained in a 2006 National Review article, “Republicans don’t want to be branded as hostile to minorities, especially just months from an election.”

But that was then! Yay! We’ve got our racist on!

It’s not hard to imagine the frustration conservative Republicans must have felt each time the act was renewed. Those Republicans elected sympathetic presidents, and they had every reason to believe that those presidents and Republican lawmakers would hear their concerns. And yet, in each case, a Republican president sided with liberals over their own conservative supporters.

Justice Antonin Scalia gave voice to this frustration during oral arguments in Shelby County v. Holder (2013), the Roberts Court case that quashed preclearance. The Voting Rights Act, Scalia claimed, was a “perpetuation of racial entitlement,” and “whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”

Only…it’s not a perpetuation of racial entitlement; it’s not an entitlement at all. It’s not a Special Favor Just For You; it’s the removal of Special Obstacles Just For You.

Roberts’s majority opinion in Shelby County posits that the United States simply isn’t racist enough to justify a fully operational Voting Rights Act.

There was a lot of heated dissent to that claim at the time and has been ever since. It’s fucking ludicrous.

Preclearance — requiring states to get federal permission before changing their own voting laws — was an “extraordinary” measure adopted to “address an extraordinary problem,” Roberts claimed. Yet, nearly a half-century after the Voting Rights Act first became law, “the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.” Black voter turnout “has come to exceed white voter turnout in five of the six States originally covered by” Section 5, Roberts claimed.

It worked, so let’s stop using it.

There are a number of fairly obvious criticisms of this argument. One of the most famous was raised by Justice Ruth Bader Ginsburg in her dissenting opinion: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Another problem is that nothing in the Constitution suggests that the Supreme Court gets to decide whether the United States is racist enough to justify extraordinary measures to halt that racism. To the contrary, the Fifteenth Amendment provides that the right 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,” and it gives Congress the “power to enforce this article by appropriate legislation.”

But the conservative justices ruled otherwise, so now voting rights are being mangled in the previous condition of servitude states.

So we get a flamingly racist criminal as president.

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