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Scalia’s limited understanding of the Voting Rights Act

Gary May is a history professor at the University of Delaware and the author of “Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy.”

In the debate over the future of the Voting Rights Act , it sometimes becomes apparent that certain members of the Supreme Court are either oblivious to our nation’s recent history or willfully ignore it. Justice Antonin Scalia made this abundantly clear in his comments during the Feb. 27 oral argument in Shelby County v. Holder , statements that he repeated in a speech on April 15.

To Scalia, the Voting Rights Act — especially Section 5, which requires covered states to submit any changes in voting practices to the Justice Department or a Washington court for approval — is a “racial entitlement” and a violation of state sovereignty. In his view, it unfairly and unnecessarily treats seven Southern states, plus Alaska, Arizona and parts of six others, differently from states not covered by the act. This month, according to the Wall Street Journal, he called the act a form of “racial preferment” that affected only African Americans while ignoring the white population.

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Ann Telnaes animation: Justice Antonin Scalia says renewing the Voting Rights Act is a \

Ann Telnaes animation: Justice Antonin Scalia says renewing the Voting Rights Act is a "perpetuation of racial entitlement."

Such statements indicate that Scalia is woefully ignorant of the legislation’s history. Because of our nation’s painful legacy of racial injustice, the Voting Rights Act of 1965 has often been used to safeguard black voters specifically, but its protections extend to all Americans regardless of skin color, as was vividly demonstrated in the period after its passage.

Enactment of the Voting Rights Act also led to the abolition of the poll tax. So in May 1966, African Americans were able to vote freely for the first time in an off-year primary election. Across the South, many blacks sought a host of elected offices, from county sheriff to seats in state legislatures. In Alabama, a Democratic candidate for governor, Attorney General Richmond Flowers, vigorously campaigned for black votes. If elected, he promised, he would appoint blacks to positions in his administration — men and women active in the civil rights movement, he pledged, not “just a few Uncle Toms.”

The favorite to win in Alabama, however, was Flowers’s opponent, Lurleen Wallace, a stand-in for her husband, George, the gubernatorial incumbent who was ineligible to run because of term limits. A vote for the Wallace ticket would be a vote for segregation; George Wallace had been the scourge of the civil rights movement in Alabama and had actively incited racial hatred to obtain the support of white voters.

On Election Day, the turnout was extraordinary. In Selma, the polls opened at 8 a.m., but black voters started lining up hours before. In Birmingham, a blistering sun caused one older man to faint, but when an ambulance arrived, he refused to go to the hospital until he had cast his ballot. “This is the first time I’m voting,” he said. “It might be my last.”

Voting continued far into the night. In Montgomery, the polls were supposed to close at 6 p.m. But at 8:30, 1,100 African Americans were still waiting at the polls and refused to leave before they had voted. At that same hour in Birmingham, 700 voters had waited patiently for more than five hours. “It made me think I was sort of somebody,” Willie Bolden, the 81-year-old grandson of slaves, told a reporter.

For African Americans, the outcome was disappointing. Few black candidates were elected, and Mrs. Wallace won a resounding victory with 399,024 votes, nearly twice as many as her husband had won four years earlier. Few had doubted that Wallace would win, but the size of her victory was what was truly surprising. And it was due, in part, to the Voting Rights Act.

Analysts later discovered that, while their projections had accounted for the historic enfranchisement of Alabama’s blacks, they had missed an equally important development: the even greater expansion of the white vote. By eliminating the literacy tests and other impediments such as the poll tax, the Voting Rights Act gave many poor whites the opportunity to register and cast ballots. A skillful get-out-the-vote campaign by Wallace’s staff added 110,000 new voters to the white majority, decreasing black influence even as the number of black voters grew. Nor was this phenomenon limited to Alabama. Throughout the South, many of the new registrants were white.

This election indicates that Scalia is wrong when he calls the Voting Rights Act “a racial preferment” that provides no protection for white voters. The act protects all voters, especially in the states and districts covered by Section 5, from any obstacles that might be put in their way. That was true in 1966 and remains true today as efforts to suppress the minority vote continue. Scalia needs to do his homework before the court determines the act’s future.

 
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