Antonin Scalia’s Voting Rights Legacy: Weakening the Franchise for Minorities

The following is an excerpt from a blog that originally appeared on the Oxford Human Rights Hub Blog. You can read the entire post here:

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The death of U.S. Supreme Court Justice Antonin Scalia has provoked numerous discussions about the future direction of the Supreme Court and Justice Scalia’s impact as a jurist. While many focus on his ardent (and sometimes contradictory) originalism, and his polarising positions in the culture wars, others … have focused on Scalia’s impact on election law.  I will argue in this post that Scalia’s impact on participatory democracy has set back the law’s capacity to protect the right to vote.

Most notably, Justice Scalia joined the majority in Shelby County v. Holder, which disabled the preclearance provisions of the Voting Rights Act of 1965 (VRA). Under the VRA, states with a history of racial discrimination in voting and lagging minority voter participation had to seek approval of changes to their voting laws from the federal government. This preclearance process played a crucial role in protecting the voting rights of minorities in the United States. Its absence has fundamentally crippled voting rights litigation.

Had Scalia (along with Justice Clarence Thomas) prevailed in Holder v. Hall, Section 2 of the VRA — the general prohibition against racial discrimination in voting —would have been limited to narrow voter-access claims by racial minorities.  This would have eliminated redistricting litigation under the VRA and radically diminished the VRA as a tool to protect racial minorities from majoritarian political domination…

… Justice Scalia’s disdain for race-conscious political protections was well known. During oral argument in Shelby County, he characterised the 2006 reauthorisation of the VRA as “racial entitlement.” Such language is pejorative of not only the VRA but also of race-conscious remedies generally. I have argued elsewhere that these comments evidence Scalia’s “post-racial agenda” to diminish the right to vote and erase race-conscious remedies.