Page: At the Supreme Court, justices ask 'Is racism over?'

People wait in line outside the Supreme Court

People wait in line outside the Supreme Court in Washington to listen to oral arguments in the Shelby County, Ala., v. Holder voting rights case. (Feb. 27, 2013) (Credit: AP)

Sometimes Supreme Court Justices Clarence Thomas and Antonin Scalia remind me of Statler and Waldorf, the grumpy old cranks in the balcony of "The Muppet Show" -- except that in the courtroom Thomas usually lets his fellow conservative do all the talking.

And talk Scalia did during oral arguments last week over the survival of a controversial provision in the 1965 Voting Rights Act.

The case of Shelby County, Ala., v. Eric Holder could decide the survival of Section 5. That provision requires nine states, mostly Southern, and some jurisdictions in seven other states to ask the Justice Department for permission, also called "preclearance," before making any changes to their voting rules or procedures.


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The provision initially was put into effect based on the persistent patterns of sometimes-violent suppression and intimidation of minority voting in those jurisdictions. Shelby County argues that times and attitudes have changed so much, even in the South, that the states covered in the law no longer deserve to be singled out for special burdens of proof.

That's not a new complaint, yet the law has been reauthorized by Congress with healthy bipartisan majorities four times in its history, most recently in 2006. But Justice Scalia, who made his opposition to Section 5 pretty clear, shrugged off those votes.

He said in effect that the lawmakers voted for the law because they feared being called racists if they didn't.

And he said that as if it were a bad thing.

More pointedly, he brought an audible gasp from the audience when he said the landmark civil rights law now amounts to a "perpetuation of racial entitlement."

Never mind the congressional support, said Scalia. Congress is very unlikely to do anything but reauthorize the landmark legislation forever, he said, since politically the cost of voting against it would be too high.

Bert Rein, the lawyer for Shelby County, expressed similar sentiments, flatly declaring the disease of voting discrimination to be "cured." Like Scalia, he appeared to be in a rush to declare racism to be over and done with, except when he detects it in civil rights law.

Yes, we have come a long way in this country on race, among other touchy issues, as evidenced by the election of the country's first African-American president.

Nevertheless, as Wade Henderson, president of the Leadership Conference on Civil and Human Rights, pointed out, it was ironic to see Alabama bring this case. As court papers filed in by the Justice Department revealed, Alabama has been exceeded since 1982 only by the much larger state of Texas in the number of voting discrimination cases it has lost under another part of the law, Section 2.

That's the main enforcement provision. Section 2 applies to all states and does not require reauthorization by Congress, but it also does not require "preclearance" before states can make voting rules changes. Since it can take a couple of years for a Section 2 complaint to be processed, the damage of a tainted election can already go into effect before the case is resolved.

But oddly unmentioned in court is another provision known as "bail-out." It allows Alabama or any other covered state or jurisdiction to apply to be exempted from the law's preclearance requirements after showing at least 10 years of good behavior. Since 1982, no jurisdiction that has applied for bail-out has been turned down.

No question that we've come a long way since the days when police dogs and fire hoses kept black citizens away from voting booths in Alabama. But today we have new voter suppression controversies over photo ID laws, long lines and other impediments to democracy.

We also have new complaints about language discrimination, among other signs that racial issue conflicts are no longer limited to black and white.

In fact, at a time when non-Hispanic whites are a shrinking majority, it's a good time for everybody to reconsider the importance of preserving minority voting rights, whoever the minority might happen to be.

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