In early March of 1857, the Roger B. Taney Supreme Court handed down its infamous ruling on the Scott v. Sandford case, also known as the Dred Scott decision. The Supremes decided 7-2 that African American slaves weren’t citizens of the United States and therefore didn’t enjoy any constitutional protections. Easily one of the most racist actions in the history of the federal government, the Court also ruled that slave owners were protected by the personal property clause of the Fifth Amendment.
Chief Justice Taney wrote: “[Dred Scott’s petition] would give to persons of the negro race… the right to enter every other State whenever they pleased… to sojourn there as long as they pleased, to go where they pleased …the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”
The horror! “Beings of an inferior order” (Taney’s phrase) running around with, you know, freedom. In other words, the Court wouldn’t allow African Americans to enjoy the rights and privileges of being free, constitutionally-protected citizens.
Fast forward to today, nearly 156 years to the day following the Dred Scott decision. The Court heard arguments in the Shelby County v. Holder case which challenges the Voting Rights Act, specifically Section 5 mandating that certain states attain “preclearance” or approval from the Justice Department before enacting new election laws. The wisdom behind Section 5 is quite simply that certain states with significant histories of Jim Crow laws and disenfranchisement have forfeited the power to unilaterally pass voting legislation.
And it looks like the Court might decide to strike it down at a time when the Republican Party at the state level has been actively passing what can only be described as neo-Jim Crow legislation.
Unsurprisingly, Antonin Scalia resurrected Taney’s Dred Scott awfulness when he described the Voting Rights Act as the “perpetuation of racial entitlement.”
Yes, he really said that. A sitting justice on the Supreme Court of 2013 said for the record that protecting a minority’s basic right to cast a ballot is an “entitlement.” Taney argued a similar point when he wrote about entitling “inferior” African Americans with constitutional freedoms, when in fact those freedoms are all fundamental human rights.
“Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes,” he said, as if it’s urgent that the states repeal laws that protect the voting rights of citizens who have very clearly suffered through and continue to suffer through electoral disenfranchisement.
Worse, Justice Kennedy, the swing vote, implied that the Voting Rights Act was obsolete.
Clearly they haven’t been paying attention.
Around 10 states have made it prohibitively difficult for as many as five million Americans without adequate financial means to vote through an array of restrictive Voter ID laws that force citizens to attain a government issued photo identification card, often with a fee attached in addition to the loss of work and transportation costs associated with acquiring the ID. What we’ve observed over the last two years are Republican lawmakers who have passed multiple forms of legislation that force Americans to get an additional license from the government in order to vote — on top of the pre-existing voter registration process.
These new laws in effect add a second layer of government approval and regulation in order to vote (somehow regulations on guns are absolutely evil). Add into the mix the various voter purges, targeted rollbacks in early voting laws and intentionally sparse resources in minority districts resulting in prohibitively long lines, and it’s plain to see that we’re back to Jim Crow in spite of what more than half of the current Supreme Court believes.
As I’ve repeatedly argued, the federal government ought to be taking a more active role in election laws — not less. What we witnessed last year is only the beginning if the Court kicks the Justice Department out of the process. Without non-regional, national oversight, Jim Crow laws, along with further electoral vote rigging and gerrymandering, will grow exponentially worse as minority demographics increase and white conservative men die.
Republicans know full well that they won’t be able to survive unless they’re able to freely block the voting rights of an increasingly larger minority population. The Republicans are shameless that way. They simply don’t care how it looks — and besides, anyone who thinks what they’re up to is racist are racists themselves, or reverse racists, or whatever form of projection they feel like employing. Like Bush v. Gore before it, the Court is more than willing to irrevocably damage our electoral process by weakening one of the most important laws in American history.