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Is the Voting Rights Act of 1965 a racial entitlement or a necessary legal protection?
By Steve Horton
      Time will tell how history judges the recent comment by U.S. Supreme Court Justice Antonin Scalia that a continuation of the Voting Rights Act of 1965 would be a “perpetuation of racial entitlement”. That act sought to end the legal loopholes and governmental practices that had effectively kept African Americans from the ballot box, disenfranchising them both as voters and as office holders.
The Constitutionality of the law, as it now exists, is being challenged by an Alabama county, and Justice Scalia’s remarks came during the oral arguments. 
While the federal law, passed by Congress and signed by President Lyndon Johnson, was national in its intent to end racial discrimination at the voting booth, it contained a special provision (Section 5) aimed  at the states in the Deep South that had been the worst transgressors. It stipulated that any changes to their voting laws or procedures needed to be pre-cleared by either the Justice Department or a panel of three federal judges in Washington, D.C.
 Without this provision, the burden of proving that voting laws or procedures are discriminatory fall on the plaintiff, making it legally more difficult and more expensive to challenge these changes.
Also awaiting history’s judgment will be the additional comment by Justice Scalia that members of Congress had nothing to gain by voting against a continuation of this act, noting that the very name, ‘Voting Rights’, makes this politically difficult. “I am fairly confident,” he said, “it will be reenacted in perpetuity unless—unless a court can say it does not comport with the Constitution, “ adding that “this (deciding whether or not to continue the act) is not the kind of a question you  can leave to Congress.”
 Observers of the Supreme Court predict that the conservative majority will strike down the Section 5 enforcement provision, if not the act itself. If so, then Justice Scalia’s remarks may well become the poster child for this Supreme Court decision.
The underlying question is ‘what happens if this act is stripped of its most effective enforcement power and otherwise defanged?’ Will the practice of hindering or even denying people the ‘right to vote’ through manipulations of state law and governmental action rear its ugly head again?
If the practice of racial discrimination at the election polls has indeed ended, as the conservative justices seem to imply, and there exists no need for a federal law to prevent its re-emergence, then “Hallelujah!” 
But if the power of law is used once again to suppress voting, then the decision may one day be regarded with the same infamy as the Dred Scott Case of 1857 when the Supreme Court ruled that slaves were property (not human beings) and that government could not restrain the free movement of property, thus nullifying the Missouri Compromise, and the Plessy v Ferguson decision of 1896 that “basically legalized racial segregation for 50 years, claiming separate but equal conditions did not violate the Constitution.”  
The latter case occurred within the context of an “escalation of racism and nativism (anti-immigrant feeling) throughout the nation in the 1890s,” noted the authors of Out of Many: A History of the American People, explaining that “the nation’s patriotic fervor took on a strongly nationalistic and anti-foreign tone… (with) striking workers and their employers both blaming foreigners for the hard times” then taking place.
“In the South (meanwhile), local and state governments codified racist ideology by passing discriminatory and segregationist legislation which became know as Jim Crows Laws,” the authors wrote in the book.
“To secure their privileges, white Southerners acted directly to impose firm standards and domination and to forestall any appearance of social equality,” the book continued. “State after state in the South enacted new legislation to cover facilities such as restaurants, public transportation, and even drinking fountains.”
At that period in the late 19th century, nine of every ten black Americans still lived in the region, so nearly the entire race suffered from these laws and their governmental enforcement.
 The blacks had enjoyed a fleeting taste of political freedom and a small measure of social equality during the Reconstruction Era after the Civil War, but these modest gains were systematically and oftentimes violently taken away from them in the ensuing years. By the 1890s, the effort had reached a crescendo with the passage of these laws and with a dramatic increase in lynching and other violent acts and intimidation.
Attempts to resist the Jim Crow measures were made. One such legal challenge occurred in 1892 when 30-year-old Homer Plessy was arrested for sitting in the ‘white’ passenger car of the East Louisiana Railroad rather than riding in the ‘colored’ car as the state law, passed earlier that year, required. Plessy had volunteered to be arrested so that a civil rights organization could challenge the Louisiana law in the courts. Six years later it finally reached the U.S. Supreme Court.
The suit by Plessy stated that these separate rail cars, divided by race, violated his rights under the 13th and 14th Amendments of the U.S. Constitution.
The 13th Amendment abolished slavery and involuntary servitude (except as a punishment for crimes) and did not get any reaction from the Supreme Court since they reasoned that nothing of the sort had occurred.
The 14th Amendment consists of three relevant provisions. The first clause gave former slaves of African descent the rights of citizenship and overruled the Dred Scott decision. The ‘Due Process Clause’ prohibits state and local governments from depriving persons of life, liberty, or property without certain steps being taken to ensure fairness. The ‘Equal Protection Clause’ requires each state to provide equal protection under the law to all people within its jurisdiction.
In the majority opinion given by Justice Henry Billings Brown that upheld the Louisiana law and enshrined the ‘separate but equal’ doctrine into the American Constitution for a half century, a distinction between political equality and social equality was make. This distinction and what the Court’s 7-2 majority felt was the actual intent of the 14th Amendment were the foundation used to buttress their ruling.
Excerpts from the majority opinion include this reasoning:
      “The object of the (14th) amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Law permitting, and even requiring their separation in places where they are liable to be brought into contract do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power.
 “We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of interiority. If this be so, it is not by reason of anything found in the act, but solely because the colored races choose to put that construction upon it…
“The argument also assumes that social prejudice may be overcome by legislation, and that equal rights cannot be secured to the Negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet on terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits and a voluntary consent of individuals… 
        “Legislation is powerless to eradicate racial instincts or abolish distinctions based upon physical differences and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political right of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the others socially, the Constitution of the United States cannot put them upon the same plane.”
Three years later, in the case of Cumming v Richmond County Board of Education, the Court further entrenched the ruling by allowing separate schools for the races, “even where facilities for African American children did not exist.”
The authors of Out of Many noted that this decision “reverberated in others parts of the country.”
        “A year later,” they wrote, “the New Orleans school board decided to eliminate all schools for black children beyond the fifth grade, reasoning that African Americans needed only minimal education to fit them for menial jobs by which they are best suited and seem ordained by the proper fitness of things.”
This “proper fitness of things” would include the passage of such legal measures as poll taxes and literacy tests used to circumvent the 15th Amendment, passed a few years after the 14th, which stated that the right to vote could not be denied “on account of race, color, or previous condition of servitude.”
The combination of these laws and the use of violence effectively subjugated the black Southerners and institutionalized discrimination and segregation. One outcome— aided by the rise of the auto industry and other manufacturing in the North— would be the eventual widespread exodus of African American families from the South to the large cities such as Detroit and Chicago. There, while not facing the direct affront of ‘whites only’ signs or the terror of the lynch mob, they would experience a different version of the ‘separate but equal’ doctrine;  a de facto segregation that evolved as a result of housing patterns and school districts (blacks being restricted to certain neighborhoods) and the use of the white-dominated, big-city police forces to maintain “law-and-order”.
The doctrine was reversed in 1954 with the unanimous ruling by the Warren Court in the Brown v Board of Education case. In reading the opinion, Chief Justice Earl Warren asked, “Does segregation of children in public schools solely on the basis of race… deprive children of equal educational opportunities?” 
Answering that the court felt it did, Warren went on to state that “Separate educational facilities are inherently unequal.”  The ‘Equal Protection Clause’ of the 14th Amendment was used as the basis for the opinion and the reversal of Plessy v. Ferguson.
As we know, many whites in the south and elsewhere in the nation, including Michigan, did not willingly accept the implications of this ruling. Integration of public facilities and fair treatment of African Americans was met with violence, political and social roadblocks and, legal challenges.
The Voting Rights Act of 1965 was a result of this resistance. It took the force of the federal government, both through law and law enforcement, to break down some of the barricades of discrimination and segregation and the accompanying hostility that existed.
But as this glance at the historic record amply demonstrates, what legislative bodies and the courts giveth, they can taketh away, and visa versus. The current political and legal maneuverings are a continuation of this tug-of-war.
There wouldn’t be any need for the Section 5 enforcement provision of the Voting Rights Act or of the law itself if we could be confident that “all” Americans would now and in the future have the right to vote and to otherwise participate in the political process without legal and overt obstacles. 
Such expectation, though, given past practices and current attempts by several state legislatures and governors to “toughen” voter laws, seems naïve. 
 The Alabama county plaintiff is contending and the conservatives on the Supreme Court seem to agree that the Southern States are no longer guilty of discriminatory practices and, thus, are being unfairly burdened by the provision. Perhaps, there is some truth in this contention. But the larger value of the law and of federal oversight has not been merely to thwart any re-emergence of these practices in those states, but to prevent similar shenanigans elsewhere. 
In reading the Plessy v. Ferguson opinion, the words and reasoning seem patently wrong. There is no justice or empathy found in them. While the justices could not know of the future implications, they certainly had to be aware of the reality of what had already occurred between the races and what was then taking place in the 1890s to the black population. The ‘badge of inferiority’ had been stamped upon them, but not by their own choice or interpretation.
The ruling would serve as the legal justification for one group of Americans to suppress another group.  “A tale as old as time,” yet no less immoral.
Let’s hope that Justice Scalia’s statement that the Voting Rights Act is “perpetuation of racial entitlement” does not become another example of history repeating itself.  
   (Source: Out of Many: A History of the American People, by John Mack Farager, Mari Jo  Buhle, Daniel Czitrom, and Susan H. Armitage; Person Prentice Hall, Fifth Edition, 2009)
Steven Horton is the primary blogger at Horton’s MichiganNotebook, which consists of essays, commentary and analysis.  You may reach him at
This was printed in the March 10, 2013 – March 23, 2013 Edition