Supreme Court justices Antonin Scalia (left) and John Roberts

Their points about Massachusetts, Mississippi, and racial entitlement have touched a nerve.

Why are liberal activists exerting themselves so fervently to attack the points made by Chief Justice John Roberts and Justice Antonin Scalia last week during the oral arguments in the Shelby County v. Holder case?

Perhaps the justices’ critics are desperate to retain the unconstitutional preclearance provisions of the Voting Rights Act, which have given the Obama administration political and legal leverage in redistricting and other election-law challenges. The chief justice provided some reason last June, in his decision in NFIB v. Sebelius, to believe that such attacks might cause him to change his mind. But the recent attacks are unfounded and not likely to sway anyone on the Supreme Court.


A key issue is the coverage formula that determines which states (or portions of states) are subject to preclearance under Section 5. That formula made states and districts where registration and turnout were below 50 percent in the 1964, 1968, and 1972 elections subject to preclearance. When Congress renewed Section 5 in 2006, it refused to update the formula to take into account more recent elections. This coverage formula was devised because of the huge disparity between black and white rates of voter participation in 1965 (the year the act was passed), a disparity that resulted from systemic discrimination in the covered areas.

An obvious question that the government should have been prepared to answer was one asked by Roberts: Which state today has the worst ratio between black and white turnout? Solicitor General Donald Verrilli Jr. either didn’t know the answer or pretended not to. The chief justice informed him that it was Massachusetts, which is not covered under Section 5. Roberts then asked him which state has the best ratio, “where African American turnout actually exceeds white turnout?” Again, the solicitor general didn’t have the answer. In fact, it is Mississippi, one of the states covered under Section 5.


These two questions have caused great consternation in the liberal press, including The Huffington Post. Massachusetts secretary of state William Galvin told the Boston Globe he was “calling out” the chief justice, asserting that Roberts was “using phony statistics.” Galvin claimed the question about the large disparity between black and white voters in Massachusetts was “deceptive” and a “cheap-shot point.” However, while decrying the exchange between Roberts and Verrilli, and claiming his state has high voter registration, Galvin never disputed Roberts’s actual point about the disparity between black and white turnout in Massachusetts.


An Associated Press story about the issue said that “a Supreme Court spokeswoman refused to offer supporting evidence of Roberts’ comments” about Massachusetts. But neither the Supreme Court staff nor the chief justice should respond to such inquiries; they are not politicians.


Moreover, anyone who had read the opinion of the D.C. Circuit Court of Appeals in the Shelby County case knows that Roberts was citing information from that opinion. As Judge Stephen Williams pointed out on page 14 of his dissent, “Most of the worst offenders — states where in 2004 whites turned out or were registered in significantly higher proportion than African-Americans — are not covered. These include, for example, the three worst — Massachusetts, Washington, and Colorado.” This point was uncontested by the Justice Department in its brief filed with the Supreme Court.

Even though the government was trying to argue that there is still widespread discrimination that would justify the continuing use of Section 5, Verrilli was forced to admit to Roberts that out of the 3,700 voting changes submitted to the Justice Department for preclearance review in 2005 (the year before the 2006 renewal), there was only one objection to a change for supposedly violating the non-discrimination standard of Section 5. That means that the Justice Department found a problem in only 0.03 percent of all of the voting changes it reviewed. That certainly is not evidence of widespread or persistent discrimination in the covered jurisdictions.


The questions asked by the chief justice illustrate the biggest problem Verrilli faced last Wednesday in a packed courtroom: None of the states covered by Section 5 would remain covered if current registration and turnout had been taken into account by Congress in 2006. When Roberts asked Verrilli if the government was contending that today “citizens of the South are more racist than citizens in the North,” which might be a necessary finding to justify Section 5, Verrilli said that was not the government’s claim.


Justice Scalia’s discussion of the reason for the overwhelming vote by Congress to renew Section 5 in 2006 also raised hackles in some quarters and led to the unwarranted, unjust, and inflammatory claim that he is a racist. Scalia said the congressional vote is “very likely attributable to a phenomenon that is called perpetuation of racial entitlement.” When a society adopts racial entitlements, “it is very difficult to get out of them through the normal political processes.”

As Scalia pointed out, no one had anything to gain by voting against continuation of Section 5 (other than wide public condemnation in the mainstream media). And for many years Democrats and Republicans have maintained an unholy alliance to support Section 5 for political reasons that have nothing to do with preventing discrimination.

Section 5 has made race a dominant factor in redistricting. Democrats like it because the majority-minority racial districts created to satisfy Section 5 provide safe seats for black and Hispanic Democrats. That is the very definition of a racial entitlement. Those same majority-minority districts drain Democratic voters from surrounding districts, creating safe Republican seats surrounding those almost challenge-proof, racially gerrymandered Democratic districts. Much of the support for Section 5 is motivated by crass, partisan objectives that both parties share, especially the entrenchment and protection of incumbents.

This is one of the most important cases of the Supreme Court’s term. Since the final opinion is likely to be subject to much attention, the Court might choose not to issue it until the last day of its term in June. Regardless of what uninformed ideologues and partisans claim, let’s hope the Court gets it right.

— Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation.