Reports of the Supreme Court argument yesterday on the constitutionality of the 2006 extension of the Voting Rights Act, reminded me of an exchange in the movie Philadelphia, where Denzel Washington played the lawyer representing another lawyer (Tom Hanks) who claims he was fired because he had AIDS. At one point during the trial, the Denzel Washington character used a number of derogatory terms to ask a witness if he was a homosexual. His client looked shocked, opposing counsel objected, and the judge asked plaintiff's counsel to explain his seemingly outrageous question:
PLAINTIFF. Your Honor, everybody in this courtroom is thinking about sexual orientation, you know, sexual preference, whatever you want to call it. Who does what to whom and how they do it. I mean, they're looking at Andrew Beckett, they're thinking about it. They're looking at Mr. Wheeler, Ms. Conine, even you, your Honor. They're wondering about it. Trust me, I know that they are looking at me and thinking about it. So let's just get it out in the open, let's get it out of the closet. Because this case is not just about AIDS, is it? So let's talk about what this case is really all about, the general public's hatred, our loathing, our fear of homosexuals, and how that climate of hatred and fear translated into the firing of this particular homosexual, my client, Andrew Beckett.
JUDGE. Please have a seat, Mr. Miller. Very good. In this courtroom, Mr. Miller, justice is blind to matters of race, creed, color, religion and sexual orientation.
PLAINTIFF. With all due respect, your Honor, we don't live in this courtroom, though, do we?
It would actually be a charitable interpretation of some of the comments made by conservative justices yesterday to say they were merely blind to the possibility of continued discrimination in the real world that might justify continuation of the Voting Rights Act. Another interpretation is that these justices are actively involved in perpetuating discrimination. Particularly Justice Scalia's comment that a statute that merely seeks to guarantee everyone the right to vote constitutes a "racial entitlement," suggests that at least one justice sees any effort by the federal government to remove impediments to voting, as somehow favoritism to racial minorities.
We have made a lot of progress since 1965, but can anyone deny that there are still concerted efforts being made to deny people the right to vote? Those efforts were on full display in 2012, which saw a gigantic upsurge in attempts to make it more difficult for people to vote. Some of the proponents of those laws openly admitted that their purpose was to make it more difficult for students, for the elderly, for the poor and uneducated, and for minorities, to exercise their most important constitutional right, because they hoped to achieve their preferred political outcome by reducing the number of voters from the opposing political party. Because those efforts are still in full sway, we obviously need to remain vigilant about protecting every citizen's right to vote. The only question is, what is the best way to achieve that?
What Section 5 of the Voting Rights Act does is impose an administrative process on states with a legacy of denying the franchise to minority voters. That means that if South Carolina passes a voter id law, as they did in 2012, they have to submit it to the Justice Department for pre-approval. South Carolina's law was therefore quietly struck down before it could take effect. If on the other hand, Pennsylvania and Ohio pass similar restrictions on the right to vote, then the affected groups have to go to court, and the parties face a lengthy and expensive public process to remove the restrictions, as also happened in 2012.
Congress made a decision that an administrative rather than a judicial process is appropriate in places with a particularly egregious history of voter suppression. It's perfectly legitimate to second guess Congress's judgment. You could make the argument that conditions have improved so much even in the states and counties subject to Section 5 that the pre-clearance procedures are no longer needed. You could make the counter-argument that due to the recent, abrupt rise in attempts to make it more difficult for people to vote, conditions for achieving full voting rights have so deteriorated that pre-clearance requirements should apply to the whole country. An administrative rather than a judicial process might be more efficient to deal with attempts to restrict voting everywhere. But the question before the Supreme Court was only whether Congress had the Constitutional power to deal with voting rights in the way that it did, by extending a law that has arguably been more successful and more important to guaranteeing civil rights than any other. If you believe in democracy; if you believe in judicial restraint; you would have to answer that Congress acted in a permissible way.
