WASHINGTON — A central provision of the Voting Rights Act of 1965 may be in peril, judging from tough questioning on Wednesday from the Supreme Court’s more conservative members.
If the court overturns the provision, nine states, mostly in the South, would become free to change voting procedures without first getting permission from federal officials.
In a vivid argument in which the lawyers and justices drew varying lessons from the legacies of slavery, the Civil War and the civil rights movement, the court’s conservative wing suggested that the modern South had outgrown its troubled past and that the legal burdens on the nine states were no longer justified.
Chief Justice John G. Roberts Jr. asked skeptically whether “the citizens in the South are more racist than citizens in the North.” Justice Anthony M. Kennedy, whose vote is probably crucial, asked whether Alabama today is an “independent sovereign” or whether it must live “under the trusteeship of the United States government.”
Justice Antonin Scalia said the law, once a civil rights landmark, now amounted to a “perpetuation of racial entitlement.”
That remark created the sharpest exchange of the morning, with Justice Sonia Sotomayor on the other end. “Do you think that the right to vote is a racial entitlement?” she later asked a lawyer challenging the law, with an edge in her voice that left little doubt she was responding to Scalia’s statement. “Do you think that racial discrimination in voting has ended, that there is none anywhere?”
The outcome of the case will most likely remain in doubt until the end of the court’s current term, in June. Many legal observers predicted that the justices would overturn part of the voting law in 2009, when the court had the same conservative-leaning majority, only to be proved wrong.
One important change, however, is that Roberts suggested in the 2009 ruling that Congress update its formula to determine which parts of the country should remain subject to the law. Congress has not done so.
Congress vs. States
The question at the heart of Wednesday’s argument was whether Congress, in reauthorizing the provision for 25 years in 2006, was entitled to use a formula based on historic practices and voting data from elections held decades ago.
Should the court strike down the law’s central provision, it would be easier for lawmakers in the nine states to enact the kind of laws Republicans in several states have recently advocated, including tighter identification standards. It would also give those states more flexibility to move polling places and redraw legislative districts.
The four members of the court’s liberal wing, citing data and history, argued that Congress remained entitled to make the judgment that the provision was still needed in the covered jurisdictions. The law passed the Senate unanimously and House overwhelmingly, by a 390-33 vote in 2006.
“It’s an old disease,” Justice Stephen G. Breyer said of efforts to thwart minority voting. “It’s gotten a lot better. A lot better. But it’s still there.”
Kennedy said that history taught a different lesson, referring to the reconstruction of Europe after World War II. “The Marshall Plan was very good, too,” he said. “But times change.”
Breyer looked to a different conflict.
“What do you think the Civil War was about?” he asked. “Of course it was aimed at treating some states differently than others.” He also said that the nation lived through 200 years of slavery and 80 years of racial segregation.
Debo P. Adegbile, a lawyer with the NAACP Legal Defense and Educational Fund, which joined the government in defending the law, echoed that point. “This statute is in part about our march through history to keep promises that our Constitution says for too long were unmet,” he said.
Law granted unique power
The law was challenged by Shelby County, Ala., which said that its federal preclearance requirement, in Section 5 of the law, had outlived its usefulness and that it imposed an unwarranted badge of shame on the affected jurisdictions.
The county’s lawyer, Bert W. Rein, said that “the problem to which the Voting Rights Act was addressed is solved.”
In any event, he added, the unusual requirement that a sovereign state’s law did not count until blessed by the federal government required substantial justification. The law, he said, was “an unusual remedy, never before and never after invoked by the Congress, putting states into a prior restraint in the exercise of their core sovereign functions.”
It was common ground among the advocates and justices that the act was important and necessary when it was first enacted.
“There is no question that the Voting Rights Act has done enormous good,” said Justice Samuel A. Alito Jr. “It’s one of the most successful statutes that Congress passed in the 20th century and one could probably go farther than that.”
There was agreement, too, that the nation and the South in particular have taken great strides toward equality.
“There isn’t anybody on any side of this issue who doesn’t admit that huge progress has been made,” Justice Ruth Bader Ginsburg said.
Most of the argument instead concerned the formula for determining which states the law covered.
Roberts reeled off statistics to suggest that the coverage formula no longer made sense. Massachusetts, which is not covered, “has the worst ratio of white voter turnout to African-American voter turnout,” he said. Mississippi, which is covered, has the best ratio, he said, with African-American turnout exceeding that of whites.
The more liberal justices responded that the nine states were responsible for a sharply disproportionate share of federal voting-rights violations, adding that Alabama was in a poor position to challenge the choices Congress made in deciding which parts of the country to cover.
Section 5 applies to nine states – Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia – and to scores of counties and municipalities in other states, including the boroughs of Brooklyn, Manhattan and the Bronx.
Forty North Carolina counties are now covered under the Voting Rights Act, including Franklin, Nash, Granville and Harnett counties. Attorney General Roy Cooper joined an amicus brief filed with the court calling Section 5 “a vital safeguard” and “an essential tool for preventing voting discrimination.”