WASHINGTON – Supreme Court justices pointedly questioned two key provisions of the Voting Rights Act on Wednesday, possibly signaling trouble for the landmark civil rights legislation.
During oral arguments in Shelby County v. Holder, conservative justices questioned the fairness of two sections in the 1965 Voting Rights Act, threatening to undermine the law credited with ending black disenfranchisement. The tense debate seemed to split along ideological lines, with liberal justices defending the relevance of the law in a “post-racial era.”
Under scrutiny is the “preclearance” requirement in Section 5 of the law, which prevents certain townships, counties and states from changing voting laws without approval from the Justice Department in Washington. The requirement was put in place to target subtler forms of discrimination, such as moving polling places to locations inaccessible for some voters.
Shelby County, Ala. claims Section 5 is an overreach of federal powers and a violation of states’ rights and county election officials want it struck down to permit more flexibility on voter laws. But debate extended beyond the argument of voter rights versus state rights, as the justices grappled with the question of whether the court should even be involved.
Creating a formula
Section 4 of the Voting Rights Act defines which townships, counties and states — so-called covered jurisdictions — would be subject to preclearance through a formula that takes into account whether a jurisdiction has had history of discriminatory voting practices. To date, nine states are covered in their entireties; eight of them are in the South.
“Is the government’s submission that the citizens in the South are more racist than the citizens in the North?” Chief Justice John Roberts asked Solicitor General Donald Verrilli, who was representing the federal government.
The Shelby case isn’t the first to test the constitutionality of Section 5. In 2009, Northwest Austin Municipal Utility District No 1. v. Holder, the Court was faced with the same question over states’ rights. In an 8-1 opinion, it declined to rule on the constitutionality of the provision in a Texas jurisdiction.
Shelby County saw the Court’s reluctance on Section 5 and decided to sue the federal government in order to strike down the provision. The Alabama county lost both in the U.S. District Court and in the Court of Appeals, and the case eventually made its way to the Supreme Court.
‘The disease is still there in the state’
In the first few minutes of the argument of Shelby County’s lawyer Bert Rein, Justice Sonia Sotomayor interrupted and asked why the court would decide “in favor of a county whose record is the epitome of what caused the passage of this law to start with.” The other liberal justices also questioned whether Alabama is the right party to use as basis for the constitutionality of the Act.
“The disease is still there in the state,” Justice Stephen Breyer said, adding that the statute has worked in curbing discriminatory practices and continues to do so.
But Justice Antonin Scalia said that kind of rationale is self-perpetuating.
At the heart of each side’s argument is a congressional vote in 2006 to renew the Voting Rights Act, including the Section 5 provision. The Republican-dominated Congress approved extension of the law for 25 years — unanimously in the Senate and 390-33 in the House. Verrilli argued that Congress’ reauthorization signaled that lawmakers’ believed it is still necessary to keep Section 5 in place.
But Scalia had doubts about the significance of the Senate vote, which he called “perpetuation of racial entitlement.”
“I don’t think there is anything to be gained by any senator to vote against continuation of this act,” Scalia said. “It’s a concern that this is not the kind of question you can leave to Congress… Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?”
Are all states equal?
The justices also pondered whether selectively identifying jurisdictions, using a formula designed in the 1960s, was fair.
“Why shouldn’t [the Voting Rights Act] apply everywhere in the country?” Justice Samuel Alito asked.
In the Court’s opinion on the Northwest Austin case, justices hinted to Congress that perhaps it should reconsider the formula for determining the covered jurisdictions, as it had seemed outdated. The high courtrevisited those same questions Wednesday, and some indicated frustration at how Congress largely ignored the matter.
Justice Anthony Kennedy, often the swing vote in the court’s ideologically split decisions, seemed to particularly question the issue, calling Congress’ formula, “reverse engineering.”
“If Congress is going to single out separate States by name, it should do it by name,” Kennedy said. “If not, it should use criteria that are relevant to the existing [times] — and Congress just didn’t have the time or the energy to do this; it just reenacted it.”
Left out of the arguments were the heated voter debates over so-called voter suppression laws, which flared during the 2012 campaign. As voter ID laws popped up across the country, the Justice Department used Section 5 to strike them down in Texas and South Carolina. Restrictions on early voting in some parts of Florida were also overturned.
In 2008, the court upheld the constitutionality of requiring a photo ID to vote, but challenges to more aggressive voter ID laws have yet to make their way to the high court. Several have been struck down in state Supreme Courts and federal appellate courts.
The ruling on Shelby, expected sometime in June, could have wide repercussions as states across the country continue to debate voter laws.
When Justice Elena Kagan pressed Bert Rein on his suggestion that the problem the Voting Rights Act intended to solve — black disenfranchisement — is already fixed, she asked the question that will be at the very crux of the court’sruling: who gets to decide when racial discrimination is over?