Epstein on Section 5 of the Voting Rights Act

The Mirage of Racism
Richard A. Epstein
Defining Ideas
March 12, 2013

The recently argued Supreme Court case Shelby County v. Holder has been in the news thanks, in large part, to Justice Antonin Scalia’s provocative, if ill-considered, remark in oral argument characterizing the Voting Rights Act of 1965 (VRA) as the “perpetuation of racial entitlement.”

That remark has provided the opening wedge for columnists like Linda Greenhouse of the New York Times to denounce the conservative majority of the court for once again flouting judicial restraint by threatening to strike down, by a five-to-four vote, the contested Section 5 of the Act, last renewed in 2006 for twenty-five years. The 2006 version of the VRA toughened what is known as the preclearance standards in Section 5.

Section 5 is tough stuff. It requires that any changes made to the voting procedures of certain states be “submitted to and approved by a three-judge Federal District Court in Washington, D.C., or the Attorney General.” That preclearance mechanism applied to states which, as of November 1964, had chosen to use various tests or devices to exclude racial minorities from the polls, or which had voter registration or turnout of under 50 percent in the 1964 presidential election—a condition which put Alaska on the list along with the hardcore segregationist states.

Richard A. Epstein