With two weeks left in the term, the Supreme Court is set to deliver a series of high profile rulings on civil right cases. As early as Monday, the Court could hand down its decision in Shelby County v. Holder, a case that challenges Section 5 of the 1965 Voting Rights Act. Section 5 mandates that nine states and 56 additional counties receive preclearance by the Department of Justice before making any changes to voting laws which might discriminate against minorities..
Seven years ago Congress overwhelmingly reauthorized Section 5 for another 25 years, affirming that the law still plays a critical role in ensuring fair and equal voting rights. Yet, opponents of Section 5 claim that race-based discrimination is no longer present to the extent that justifies such legal protection.
Melissa Harris-Perry guest host Ari Melber and his Sunday panel discussed the scope of structural racism today and whether it requires legal protection and remedy in the case of voting rights.
“Every single indicator, shows the continued existence of racism,” said Jelani Cobb, director of the Institute of African American Studies at the University of Connecticut.
Rather than overt interpersonal racism, this discrimination is more covert and structurally based, often occurring via policies with disparate impact.
Cobb pointed to two reports issued this week as evidence of continued race-based discrimination. The Equal Employment Opportunity Commission announced on Tuesday that it has filed suit against Dollar General and BMW for violating Title VII of the Civil Rights Act by basing employment policies on criminal background checks that have a disparate impact on African-Americans.
Also on Tuesday, the Department of Housing and Urban Development released its 2012 report “Housing Discrimination Against Racial and Ethnic Minorities.” The report found that, while blatant race-based housing discrimination is declining, unequal treatment continues to persist. In a paired-test study, HUD found that black, Asian and Hispanic renters and homebuyers are told about and shown fewer homes and apartments than white renters and home buyers.
Plaintiffs in Shelby v. Holder have argued that the South has changed to the extent that covered states no longer require preclearance. In oral arguments, Justice Sonia Sotomayor responded:
“Assuming I accept your premise, and there’s some question about that, that some portions of the South have changed, your county pretty much hasn’t.” She later continued, “Why would we vote in favor of a county whose record is the epitome of what caused the passage of this law to start with?”
Justice Sotomayor pointed to the high number of discriminatory laws that Section 5 has recently blocked. The Brennan Center for Justice found that between 1982 and 2006, more than 1,000 discriminatory proposals have been blocked by the DOJ under Section 5. A new report shows that 31 additional proposals have been blocked since 2006.
On Sunday’s panel, Harvard Law School Professor Lani Guinier questioned why the Supreme Court is in the position to make a judgment on the fate of Section Five when “elected officials in this country have made a decision” already by reauthorizing the law in 2006.
Cobb added that the job of the Supreme Court is to correct law, not legislators, stating it’s not the Court’s place to say, “[Congressmen] don’t have the temerity to vote this down, so we will correct it.”
New York University Law School professor Kenji Yoshino predicted that, of the civil rights cases being decided in the next two weeks, same-sex marriage will likely see a victory, but affirmative action and Section 5 of the Voting Rights Act are unlikely to be upheld.