A majority of Supreme Court justices seemed prepared on Wednesday to invalidate a key section of the 1965 Voting Rights Act. The law is considered the most effective piece of civil rights legislation in the nation's history.
The provision at issue applies to specific parts of the country, mainly in the South, where discriminatory voting procedures were once routine. It requires that any changes in voting procedures have to be approved in advance by the Justice Department or a federal court in Washington before they can go into effect. The purpose is to head off discriminatory practices before they take place.
Shelby County, Ala., challenged the law, contending that the formula under which locations are covered has not been updated since 1975, and that the statute, reauthorized in 2006, is therefore an unjustified violation of states' rights.
Skepticism From Liberal Justices
Inside the courtroom, the debate began with a fierce start as the liberal justices greeted Shelby County's arguments with skepticism.
"Assuming I accept your premise ... that portions of the South have changed, your county pretty much hasn't," Justice Sonia Sotomayor said. She noted that the Justice Department has blocked 240 of the county's proposed changes, so "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 Elena Kagan noted that under the Voting Rights Act, all parts of the country are subject to a provision that bars voting discrimination, but when one looks at the successful cases brought under that provision, Alabama is No. 1 on the list of offenders. "Under any formula that Congress could devise, it would capture Alabama," she said, adding that Congress had amassed a 15,000-page record as the basis for extending the law.
Justice Stephen Breyer compared voting discrimination to a plant disease, and the law as a preventive treatment. The disease may have "evolved" since 1965, but Congress decided preventive actions were still needed to deal with a second generation of problems in these areas, he said.
After more back and forth, Shelby County's lawyer Bert Rein said Congress had simply gone too far and, without adequate justification, addressed the problem with a law that amounts to "killing a fly with a sledgehammer."
A central issue in the case how much the court should defer to Congress in this area was raised when Kagan asked this question: "You say the problem has been solved. But who gets to make that judgment really? Is it you, is it the court, or is it Congress?"
"It is up to the court to determine whether the problem indeed has been solved," replied attorney Rein. To which Kagan responded with sarcasm, "Well, that's a big, new power that you are giving us. ... I did not think that fell within our bailiwick."
Conservatives Justices Attack Law
If the liberals were unusually tough in their questions though, the conservative justices were ferocious, including the justice who is likely to cast the fifth and deciding vote in the case, Anthony Kennedy.
Chief Justice John Roberts, who actively opposed extension of the Voting Rights Act when he served as an attorney in the Reagan administration, was loaded for bear, grilling the government's chief advocate, Donald Verrilli.
Within minutes after Verrilli's start, Roberts pounced with a slew of questions on voter registration and turnout: "Which state has the greatest disparity" in registration between white and African-American voters? Verrilli didn't know, but the chief did, telling him it is Massachusetts. And in Mississippi, Roberts added, the black registration rate is higher than the white registration rate.
Verrilli replied that Congress wasn't writing on a blank slate because the covered areas have a documented history of racial discrimination. Congress, he said, was making a "cautious choice" not to ease up on protections too soon.
"But times change," Kennedy said. Why wouldn't it be enough to bring suit under the other part of the Voting Rights Act, which applies to the whole country and bars intentional discrimination in voting practices.
Verrilli replied that there would be no way to keep up with the "thousands and thousands" of changes in voting procedures, such as polling place changes or registration requirements, which occur "under the radar." It would also be too expensive to file so many suits, he said.
Justice Samuel Alito interjected: "Then why shouldn't [the preclearance section] apply everywhere in the country?"
Because, answered Verrilli, Congress made a reasonable choice in 2006 that there was a greater risk in the jurisdictions with a history of blatant discrimination.
But Kennedy seemed to suggest that Congress exceeded its authority by treating some states more harshly than others.
The chief justice continued to pummel Verrilli: "Is it the government's submission that the citizens in the South are more racist than citizens in the North?"
"It is not our submission," replied Verrilli. There is no way for us to know if that is so, he added. But Congress, when it re-enacted the law, had before it evidence that there was a "continuing need" in the covered areas.
A question from Justice Antonin Scalia suggesting the law amounts to "racial entitlements" drew quiet gasps in the courtroom. "This court doesn't like to get involved in racial questions such as this one," Scalia said. "It's something that can be left to Congress." The problem here, he said, is that the Senate, for instance, voted 98-to-0 to reauthorize the law in 2006 versus the vote in 1965 when the number of opponents was in the "double digits." And that, Scalia suggested, means that Congress is engaged in the phenomenon of perpetuating "racial entitlements." Elected officials have "no interest" in voting against the law, he maintained, so the court must step in.
Solicitor General Verrilli responded that the Constitution, in the post-Civil War amendments, expressly gives Congress the power to enforce voting rights. It would be extraordinary, he said, to look behind the judgment of Congress with some sort of "motive analysis."
Justice Clarence Thomas asked no questions, as usual, but he is on record as believing that the preclearance section of the Voting Rights Law is unconstitutional. So, with Kennedy, sometimes a swing vote, now apparently on board, there would seem to be five votes to strike down the preclearance section of the law.
A decision in the case is expected by late June.