Former New Hampshire Sen. Judd Gregg, a Republican who voted to reauthorize the Voting Rights Act in 2006, told Up w/ Chris Hayesin an e-mail this week that Section 5 of the Voting Rights Act should be considered a "legislative matter," and that the provision, which the Supreme Court is currently weighing, "does not raise constitutional issues that justify judicial action superseding the legislative branch's role."
Section 5 was the subject of oral arguments at the Supreme Court this week, where the court's five conservative justices expressed deep skepticism about the continued need for voting rights protections such as those in Section 5. That provision of the law, first signed by President Lyndon B. Johnson during the Civil Rights movement in 1965, designates certain "covered jurisdictions" with a history of voting rights violations that must first seek federal "preclearance," or approval, before making changes to voting laws.
Supreme Court Associate Justice Antonin Scalia expressed perhaps the most notable opposition to Section 5 when, during the oral arguments, he called the provision an example of "racial entitlement" that lawmakers would never be able to overturn:
I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. I don’t think there is anything to be gained by any senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless – unless a court can say it does not comport with the Constitution.
When asked in an e-mail about Scalia's objection, Gregg wrote, "I do believe this is a legislative matter where the action of the congress should take priority and does not raise constitutional issues that justify judicial action superseding the legislative branch's role." Gregg's support for Section 5 is especially notable given that ten towns in New Hampshire are among the covered jurisdictions under Section 5.
On Up w/ Chris Hayes Saturday, legal scholar and Yale Law School professor Akhil Amar said Gregg was correct that the legislative branch has the authority, under the Constitution, to provide remedies for racial discrimination and voting rights violations. "The Constitution of the United States says really clearly who's supposed to decide here," Amar said.
Additional reporting by Todd Cole.