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Thu Feb 28, 2013, 01:12 AM

The Future of the Voting Rights Act Depends on One Supreme Court Justice


The Future of the Voting Rights Act Depends on One Supreme Court Justice

By: Adalia Woodbury
Feb. 27th, 2013

The Supreme Court heard arguments that will determine whether the court will uphold the Voting Rights Act or send us back to the days of Jim Crow.

The speculation doesn’t look good for the Voting Rights Act, with watchers speculating that Article 5 will be struck down 5-4 with Justice Kennedy joining with the conservative justices. In other words, the VRA’s future will depend on how which way Justice Kennedy swings. Will he join with Republicans as he did to bring us the nightmare of Citizens’ United? Or will he recognize that the VRA should be expanded – not struck down?

The SCOTUS Blog observed that Justice Kennedy’s questions reflected a concern about states’ rights, most notably when he asked:

If Alabama wants to put up monuments to the heroes of civil rights, in order to “acknowledge the wrongs of its past,” the Justice asked, “is it better off doing it if’ it’s an own independent sovereign or if it’s under the trusteeship of the United States government?”

Also noted by the SCOTUS Blog, Kennedy had similar concerns the last time the VRA was challenged.

But those who had attended the Court’s last hearing on the constitutionality of the 1965 law, four years ago, could recall that Kennedy was equally disturbed then about the threat he saw to states’ rights, and yet the Court concluded that case without striking down the law. It found a way to ease the burden of the law, for local governments, and left it at that.


Given that Justice Thomas thinks there’s something unconstitutional about mechanisms designed to prevent racism discrimination and Justice Scalia has it backwards when he says that Article Five is about “perpetuating racial entitlement” it’s pretty clear they will vote to strike down the VRA. Alito is likely to join them. Roberts is less likely to go rogue and actually look at the law instead of the politics a second time around. Justices Ginsberg, Breyer and Kagan are likely to join Sotomayor in favor of upholding the VRA.

That leaves us with the reality that the future of voting rights really lies in the hands of Justice Kennedy. His decision will depend on whether he places a higher priority on states to enact racist election laws, or the people who will inevitably be disenfranchised if the Voting Rights Act is struck down.

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