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 Justice 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
proven wrong.
One important change, however, is that
Chief Justice 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.
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 vote of
390 to 33 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.”
Justice 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.”
Justice 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.
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,” Justice Samuel A. Alito Jr. said. “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.
Chief Justice 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.
“Under any formula that Congress could devise,” Justice Elena Kagan
said, citing data about voting rights suits, “it would capture Alabama.”
The point seemed to interest Justice
Kennedy, in one of his few questions skeptical of the law’s challenger. “If you
could be covered under most suggested formulas for this kind of statute,” he
asked Mr. Rein, “why are you injured by this one?”
Should the court strike down the coverage
formula when it decides the case, Shelby County v. Holder, No. 12-96, Congress
would be free to take a fresh look at what jurisdictions should be covered. But
Congress seems unlikely to be able to agree on a new set of criteria, given the
current partisan divide, meaning the part of the law requiring federal
pre-approval of election changes would effectively disappear.
Justice Kennedy asked whether it would be
proper to make the entire country subject to the provision. Solicitor General
Donald B. Verrilli Jr. said no, at least based on the information compiled by
Congress in connection with the 2006 extension of the law.
Justice Kennedy seemed to view the response
as a concession. “And that,” he said, “is because that there is a federalism
interest in each state being responsible to ensure that it has a political
system that acts in a democratic and a civil and a decent and a proper and a
constitutional way.”
Congress has repeatedly extended the
preclearance requirement: for 5 years in 1970, 7 years in 1975, and for 25
years in both 1982 and 2006.
But it made no changes after 1975 to the
list of jurisdictions covered by Section 5, relying instead on a formula based
on historical practices and voting data from elections held decades ago.
It 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.
