In the late 19th Century, Southern states began to enact literacy tests to prevent African-Americans from casting a ballot. At the time, black voters were up to seven and a half times as likely to be unable to read as white voters, so requiring voters to prove their reading skills was an effective way of making the electorate more white. Many states also enacted laws effectively exempting whites from the test, such as by allowing a white voting official to subjectively determine that certain people should be allowed to vote even if they could not pass the literacy test. Indeed, the phrase “grandfather clause” refers to Jim Crow era laws that exempted white voters from voting restrictions so long as their grandfathers enjoyed the right to vote prior to the South’s defeat in the Civil War.

Literacy tests were eventually rendered illegal under the Voting Rights Act, but North Carolina’s state constitution still calls for one. Now, a bipartisan group of lawmakers wants to fix that:

Earlier this month, two African-American Democrats, Reps. Kelly Alexander of Charlotte and Mickey Michaux of Durham, joined with two white Republicans, Reps. Charles Jeter of Huntersville and Harry Warren of Salisbury, to introduce House Bill 311, which would put before voters an amendment to eliminate Article VI, Section 4 of the state constitution that says, “Every person presenting himself for registration shall be able to read and write any section of the Constitution in the English language.”

An earlier effort to repeal the provision failed in 1970 — the only one of six proposed constitutional changes that North Carolina voters did not approve that year. The clause remains unenforceable under Section 201 of the Voting Rights Act, which prohibits state and local governments from requiring voters to read and write.

Although this repeal effort is largely symbolic so long as the Voting Right Act prevents North Carolina’s literacy test requirement from being enforced, repealing it is nonetheless important because there is no guarantee that the Roberts Court won’t someday strip away the federal government’s power to protect against literacy tests and similar devices intended to disenfranchise voters, just as they appear poised to cut back another part of the landmark voting law this term.

A new study by professors at the University of Chicago and Washington University in St. Louis shows that the strict voter ID laws being pushed by Republican state legislators around the country most impact young people, especially young minorities. And given that the people pushing those measures admitted they were intended to help GOP candidates win, the analysis would suggest that the efforts are having their intended effect.

Politico reported Tuesday that the study, co-authored by Cathy J. Cohen of the University of Chicago and Jon C. Rogowski of Washington University in St. Louis, found that even in states without photo ID laws, “65.5 percent of black youth were asked to show ID at the polls, compared with 55.3 percent of Latino youth and 42.8 percent of white youth.”

Worse, the study finds, many minority young voters — including 17.3 percent of young African Americans — did not even try to vote because they lacked the required identification.
The authors noted that their findings show the problem with these suppression laws — and show the continued need for the Voting Rights Act:

“The effort to protect the vote doesn’t make sense and it’s largely discriminatory, impacting we know, young people in particular, young people of color, the poor and the elderly,” Cohen said. … Rogowski said the study will help underscore the importance of keeping Section 5 fully in place. “It’s important that we still have the ability to keep a watchful eye on these kinds of states,” Rogowski said.

Last June, Pennsylvania House Republican Leader Mike Turzai boasted that the voter ID law he helped pass would “allow Governor Romney to win the state of Pennsylvania.” In December, Republican strategist Scott Tranter acknowledged that “a lot of us are campaign professionals and we want to do everything we can to help our sides. Sometimes we think that’s voter ID, sometimes we think that’s longer lines, whatever it may be.”

The US Supreme Court seems poised to invalidate a key section of the Voting Rights Act after last week’s hostile oral argument. Conservative justices insisted that special protections for minority voters in historically discriminatory districts are now obsolete. While Justice Antonin Scalia brashly attacked the law as “a perpetuation of racial entitlement,” Chief Justice John Roberts attempted a more measured statistical argument. Roberts claimed that Section 5′s focus on southern states was outdated because Mississippi has the highest black voter turnout, while Massachusetts has the lowest.

Statistics guru Nate Silver dismantled Roberts’ argument in his New York Times column today, pointing out that Roberts cherry-picked two states outside the norm:

In fact, it would be dangerous to infer very much from Massachusetts and Mississippi. In 2004, for instance, while Mississippi was reported to have strong black turnout, black turnout was poor in Arizona and Virginia, which are also covered by Section 5.

Silver examined data in states covered by Section 5 versus states not covered by Section 5, finding little difference in black voter turnout:

However, Silver argues, Roberts’ reasoning that the improved minority turnout in covered states means the Voting Rights Act is no longer necessary is flawed. It may well be that the Voting Rights Act is responsible for correcting the huge regional disparity in voter turnout in 1964. Therefore, Roberts’ examples of Massachusetts and Mississippi turnout say little about the actual effects of the VRA.

Meanwhile, several covered states have vote-suppressing legislation waiting in the wings for the invalidation of Section 5. Arizona Republicans are pushing legislation to ban anyone working on behalf of a political organization from bringing sealed mailed ballots to a polling place — a hugely successful get out the vote initiative used in 2012 for Latinos in Phoenix. Virginia just passed a restrictive voter ID law nearly identical to the Texas voter ID law struck down last year for harming minority voting rights. Texas is also waiting to enact a redistricting plan tossed out by federal judges for the map’s “substantial surgery” to dilute predominantly black districts. Without Section 5, all these laws would be allowed to go into effect, with clear implications for minority turnout.

The justices are still considering a case that could potentially invalidate a key provision of the Voting Rights Act, but Arizona Republicans are already pushing legislation that’s unlikely to survive contact with the landmark voting rights law if it is not struck down by the Court.

The Arizona Senate recently passed a bill which makes it a felony for anyone working or volunteering on behalf of a political committee or other organization to deliver mailed ballots to a polling place — a bill which could significantly undermine voter turnout efforts in Latino communities. Arizona is one of nine states that must, because of the Voting Rights Act, submit any new voting law to the Justice Department or a federal court to ensure that the law “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color.”

In 2011, Latino voter turnout jumped nearly 500 percent in one district in Phoenix, Arizona. That same year, Russell Pearce, the former state senate president behind Arizona’s anti-immigrant SB 1070, was recalled from office. In both cases, a major driving force was grassroots volunteers — often high school students — who provided full-service voter turnout operations in Latino communities. These grassroots campaigns would identify voters who received mail in ballots but had not yet returned them, encourage the voter to fill out the ballot, and offer to return it to the polling place in order to make it as easy as possible for the voter to vote. Last year, the Campaign for Arizona’s Future, used this technique to turnout voters opposed to anti-immigrant Sheriff Joe Arpaio last year. They claim to have turned in nearly 1400 votes using the method that Arizona Republicans now want to criminalize.

So, while there’s nothing inherently racist about regulating how ballots are cast, the bill that recently passed the Arizona senate targets a method of voting that is likely to be unusually common among Latino voters. In other words, the law likely has the “effect of denying or abridging the right to vote on account of race or color,” and thus is unlikely to survive review under Section 5 of the Voting Rights Act — unless, of course, the Supreme Court strikes down Section 5.

Seemingly-neutral laws that have a disproportionate impact on minority voters are a common tactic by Republican lawmakers. Voter ID laws, restrictions on registration drives and attacks on early voting all have the effect of making minority voters less likely to vote. As President Lyndon Johnson explained when he originally proposed the Voting Rights Act, “every device of which human ingenuity is capable” will be used by politicians eager to keep certain voters from casting a ballot.

As the Supreme Court considers the constitutionality of a key provision in the Voting Rights Act, many on both sides of the aisle are speaking out in defense of the law. But just seven years after joining in the Senate’s 98-0 vote to reauthorize the law, two Senate Republicans are refusing to say whether they think the law they voted for passes constitutional muster.

On Tuesday, Talking Points Memo’s Sahil Kapur asked Senators Lindsey Graham (R-SC) and Jim Inhofe (R-OK) whether they think the Supreme Court should uphold the Voting Rights Act — which both voted to reauthorize in July 2006. Graham reportedly responded, “Uhh.. [long pause] I haven’t even thought about it.” Inhofe, according to Kapur, responded: “Oh, I don’t know. I’ll let someone else answer that.”

There are many reasons why 48 years after its original passage, the Voting Rights Act is still needed. But the case was perhaps best made by Graham himself in a 2006 press release:

South Carolina has come a long way in the past few decades and we have a lot to be proud of. But just like every other part of the country, we still have a ways to go. I hope twenty-five years from now it can be said that there will be no need for a Voting Rights Act because things have continued to change for the better. If we continue making progress like we have in the past twenty-five years, we can make it happen.

All Senators take an oath that they will “support and defend the Constitution.” The 15th Amendment to that Constitution expressly gives Congress the power to ensure that citizens’ “right to vote shall not be denied or abridged” based on race or color. By voting for the 2006 legislation, Graham and Inhofe already put themselves on record as believing this was constitutional.

The Supreme Court’s five conservatives appeared openly hostile to a key provision of the Voting Rights Act last week, with Justice Scalia referring to the law that ended Jim Crow voter disenfranchisement as a “perpetuation of racial entitlement.” Outside of the Supreme Court’s conservative wing and a handful of state elected officials, however, there does not appear to be much of a constituency for striking down this landmark law. Indeed, in an email to MSNBC’s Up w/ Chris Hayes, former Sen. Judd Gregg (R-NH) took a very different position that the conservative justices: “I do believe this is a legislative matter where the action of the congress should take priority and does not raise constitutional issues that justify judicial action superseding the legislative branch’s role.”

Reauthorization of the act received overwhelming bipartisan support in 2006, with the House voting 390-33 in favor and the Senate voting 98-0. In his now-infamous “racial entitlement” statement, Scalia suggested that this lopsided vote actually makes the law more suspect than if there had been significant opposition, because he thinks this means legislators were to scared to vote against it. In reality, however, there is no evidence that elected officials who oppose voting rights are afraid to take action against the law — six state attorneys general filed a brief in the Supreme Court arguing that the law should be struck down in order to make it easier for their states to enact voter suppression laws. The more likely explanation for the lopsided vote is that few people who don’t sit on the Supreme Court believe the law’s longstanding protections for minority voting rights are a bad idea.

John Lewis being beaten by state troopers, March 7, 1965

Rep. John Lewis (D-GA), who shed his own blood fighting for the passage if the Voting Rights Act in 1965, said he almost cried when he heard Justice Antonin Scalia’s comment Tuesday that the landmark civil rights law is a “perpetuation of racial entitlement.” Scalia made the comment during oral argument on the constitutionality of a key section of the law, suggesting that the law would always be passed by lawmakers too afraid to vote against it unless the court halted it. The Nation’s Ari Berman tweets:

Civil rights icon Rep. John Lewis told me he almost cried when Scalia called Voting Rights Act a ‘perpetuation of racial entitlement’

— Ari Berman (@AriBerman) February 28, 2013

And Lewis explained his disbelief to Al Sharpton on MSNBC:

It was unreal, unbelievable, almost shocking for a member of the court to use that language. I can see politicians and even members of Congress. But it was just appalling to me. It is an affront to all of what the civil rights movement stood for, what people died for, what people bled for, and those of us who marched across that bridge 48 years ago, we didn’t march for some racial entitlement. We wanted to open up the political process, and let all of the people come in, and it didn’t matter whether they were black or white, Latino, Asian-American or Native American.

The right to vote is precious, almost sacred. It is the most powerful nonviolent instrument that we have in a democratic society. And if the courts come to that point where they declare this section, section 5 of the Voting Rights Act, unconstitutional, it would be a dagger in the heart of the democratic process.

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Lewis was one among many court-watchers and commentators who were shocked and appalled by Scalia’s comment. And not just because he trivialized the civil rights movement. His suggestion that the court must intervene to overturn legislation with too much support is also anathema to his own rigid textualist approach to reading the Constitution. As Ian Millhiser recently pointed out, even if Scalia’s perverse racial entitlements theory had some merit, it is nowhere to be found in the text of the Constitution.

Justice Antonin Scalia quite deservedly came under fire yesterday for his claim that a key provision of the Voting Rights Act is a “perpetuation of racial entitlement.” If the justice were looking to confirm every suspicion that conservative opposition to the law that broke the back of Jim Crow voter exclusions is rooted in white racial resentment, he could hardly have picked a better way to do so.

Viewed in context, however, Scalia’s quote is actually even more disturbing than the initial headlines suggested. Beyond whatever resentments Justice Scalia may hold, his “racial entitlements” statement was also part of a broader theory about the proper role of judges in society. And if that theory were taken seriously by a majority of the justices, it would potentially undermine Medicare, Social Security and countless other programs. According to Scalia:

Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. I don’t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution. You have to show, when you are treating different States differently, that there’s a good reason for it.

That’s the — that’s the concern that those of us who — who have some questions about this statute have. It’s — it’s a concern that this is not the kind of a question you can leave to Congress. There are certain districts in the House that are black districts by law just about now. And even the Virginia Senators, they have no interest in voting against this. The State government is not their government, and they are going to lose — they are going to lose votes if they do not reenact the Voting Rights Act.

As Scott Lemieux points out, this theory resembles some of the reasoning behind an 1883 decision which struck down an early precursor to the 1964 Civil Rights Act that banned many forms of segregation by private business. But the roots of Scalia’s legal theory are probably several decades more recent than the late Nineteenth Century.
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WASHINGTON, DC — The Voting Rights Act did not have a very good day today. Chief Justice John Roberts suggested that a key provision of the law is rooted in the idea that “citizens in the South are more racist than citizens in the North.” Justice Antonin Scalia accomplished the unusual task of making Roberts look like a moderate by labeling the law a “perpetuation of racial entitlement.” Justice Anthony Kennedy, whose undeserved reputation as a moderate leads Court-watchers to pay particularly close attention to his questions, compared a landmark voting rights provision to the Marshall Plan as an example of a good idea that has now run its course.

Nothing, of course, is certain after an oral argument. Arguments in the Affordable Care Act case did not go well for the law or the Constitution, but Roberts ultimately blinked and voted to uphold the lion’s share of the law. When the same provision of the Voting Right Act — the provision requiring some parts of the country to “pre-clear” new voting laws with the Justice Department or a federal court before they take effect — was before the justices four years ago, that argument did not go very well either. Yet the justices ultimately upheld the law, albeit under circumstances suggesting another shoe would drop soon.

Though the shoe seems likely to drop this term, the four Democratic appointees made it clear they would not allow it to fall lightly. Justice Sonia Sotomayor was a star today, demonstrating a masterful understanding of the record and of the history of voter suppression in the South. When Scalia uttered his offensive claim that the law is a racial entitlement program, Sotomayor placed the lawyer challenging voting rights in the uncomfortable position of having to explain whether he agreed or disagreed with Scalia. With an assist from Justice Elena Kagan, Sotomayor pointed out that the plaintiff in this case, Shelby County, Alabama, “may be the wrong party bringing this” because of their dismal past record on voting rights. Alabama as a whole ranks as one of the worst offenders of federal voting rights laws in the country, and thus, as Kagan pointed out, should be subject to additional review of its voting laws “under any formula that Congress could devise.”

Sotomayor also asked the best question of the morning: why should Shelby County be allowed to bring this lawsuit as what is known as a “facial challenge,” instead of a much more limited “as-applied” challenge. A facial challenge is a broad lawsuit claiming that a law must utterly cease to exist and can never be applied to anyone. As Sotomayor pointed out, they are also disfavored under current law (or, a least, that Supreme Court likes to say they are disfavored). Generally, the Supreme Court claims to prefer narrower “as-applied” challenges that claim a law is invalid with respect to a specific plaintiff, but that it may still lawfully be applied to many other parties.

When individual voters bring lawsuits claiming disenfranchisement, the Roberts Court has wielded this distinction between facial and as-applied challenges to devastating effect. Most significantly, in Crawford v. Marion County Election Board, a plurality of the Court established that challenges to voter ID, a common voter suppression law, can only be brought on an as-applied basis. The upside of this is that each voter who feels they may be disenfranchised by the law has to hire a lawyer, go to court, and sue for the right to vote. And if they win, their victory applies only to them, not to the potentially hundreds of thousands of other voters who could be disenfranchised by voter ID.

What’s good for the goose should be good for the gander. If a voter disenfranchisement scheme that is popular with conservatives can only be subject to narrow, plaintiff-specific challenges, than the same rule should apply when a landmark voting rights law is challenged by conservatives. There was little doubt after oral argument today, however, that at least four of the Court’s conservatives do not see it that way.

The thin ray of hope is Justice Kennedy. Although Kennedy’s comments were largely hostile to the law, he did at one point join into the more progressive justices’ questions about whether Shelby County can try to destroy this law entirely — “if you would be covered under any formula, why are you injured under this one?” Kennedy asked the lawyer for Shelby County at one point. Suggesting either that he could ultimately agree with Sotomayor, or at least that he does not think that Shelby County is the right plaintiff to bring this case.

Nevertheless, if Kennedy does not agree with Sotomayor — or at least to put off the fate of the law until a future date — it will mean that there is one rule that applies to individual voters, and another, more favorable rule that applies to people who oppose voting rights.