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The Supreme Court’s conservative justices strongly suggested Wednesday that a key portion of the Voting Rights Act is no longer justified and the time had come for Southern states to be freed from special federal oversight.
Chief Justice John G. Roberts Jr. asked Solicitor General Donald B. Verrilli Jr. whether it was the federal government’s contention that “the citizens in the South are more racist than citizens in the North.”
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Verrilli said that was not the government’s argument but that Congress decided in 2006 that Section 5 of the Voting Rights Act was still needed to protect the voting rights of minorities. The section requires nine states, mostly in the South, and local governments in other states to “pre-clear” any changes in voting laws with federal authorities.
Justice Antonin Scalia responded by saying flatly that he thought it was “not the kind of question you can leave to Congress,” because it was impossible for elected representatives to vote against such a measure.
The act has come to be seen as a “racial entitlement,” Scalia said, and “I am fairly confident it will be reenacted in perpetuity” no matter how much progress the states make in eliminating discrimination.
Verrilli responded that in the amendments passed after the Civil War, the Constitution quite clearly gives Congress express power to enforce voting rights and said it would be “extraordinary” for the court to second-guess its judgment in reauthorizing the act by nearly unanimous margins in 2006.
The oral arguments, which extended beyond a scheduled hour, revealed the court at its most ideologically polarized.
The court’s four liberals came armed with statistics about how minority voting rights were still more threatened in the states singled out in Section 5 than the rest of the country, and they warned about the need for judicial restraint.
When Bert Rein, attorney for an , said the court must conclude that Congress was wrong to find that reauthorization of Section 5 was necessary, Justice Elena Kagan responded: “That’s a big new power you’ve given us.”
Justice Sonia Sotomayor said, “Why should we make that judgment and not Congress?”
It has been clear since the court accepted the challenge from Shelby County, Ala., that Section 5 hung in the balance. Opponents of Section 5 carefully nurtured the case to get the issue back before the court. Section 5 covers Alabama, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia, as well as Alaska and Arizona.
The court heard a similar case in 2009, but decided it narrowly and sidestepped the question of whether Section 5 should be declared unconstitutional.
The court has upheld Section 5 and the formula used in deciding which states should be covered each time the law has been reauthorized since its initial passage in 1965.
The liberal justices told that his client and the state of Alabama were not the success stories that would make the law seem unnecessary.
Justice Ruth Bader Ginsburg said that no one contested that conditions in the South had changed but that Mississippi, Alabama and Louisiana were still the states where violations of the Voting Rights Act were most likely to occur.
Kagan said that almost any formula Congress devised to indicate where Section 5 was still needed “would capture Alabama.”
But Roberts, questioning Verrilli, said voter registration and turnout among blacks in Alabama was better than in Massachusetts.
Justice Samuel A. Alito Jr. said it made no sense that some states were covered and others were not, and he asked why the law should apply to Virginia but not Tennessee or some places in the Bronx rather than Brooklyn.
How far the court goes in deciding the case will most likely be determined by Justice Anthony M. Kennedy. He seemed particularly disturbed, as he did four years ago, by the federalism problem that arises from treating some states differently than others.
“Times change,” he said.
Kennedy suggested several times that another part of the law, which applies to the whole country, is enough to prevent discrimination.
One possibility for the court would be to keep Section 5 but to declare that the formula used in selecting the covered states, which is based on 1972 data, is outdated and must be revisited. Proponents of the law say that would effectively doom Section 5, because it would be so hard to get a new formula through a partisan and polarized Congress.
The case is Shelby County v. Holder.
Discuss this topic and other political issues in the .
318
Comments
Bosworth2
2:31 PM EST
Let me start off with the proposition that racism is alive and well in this country. Let me also acknowledge that there are still parts of this country (very small parts) that voting discrimination is still committed. I also believe that racism knows no geographical bounds.
Having said all this, I find it hard to credit that a Voting Rights Act written nearly 50 years ago, when a large proportion of African Americans lived lives of peril in the South, could still possibly have the same effectiveness today.
Many areas in the South that were previously majority white are now dominated by African Americans. Atlanta is a very good example of it. I doubt you would have held the same opinion of this statement in 1965.
Second, the Post seems obssessed with redistricting - a legal, if despicable political manuever committed by both political parties, regardless of race. But whites do not hold the corner on the market any more. if they did, then there would be no African Americans in our government today, as there were in 1965.
Not saying voter discrimination is going on. It may well be somewhere. But the Voting Rights Act has fulfilled her original purpose. A new statute reflecting modern demographics needs to be produced. I feel that a lot of people, for instance, would say that maybe Montana is full of white racists. Yet, they get a free pass, just because they're not in the South? This makes no sense.
The venerable law did some good. But, it has done all that it can. It needs a predecessor law to better reflect the new demographic realities of our ever-changing country.
Chief Justice John G. Roberts Jr. asked Solicitor General Donald B. Verrilli Jr. whether it was the federal government’s contention that “the citizens in the South are more racist than citizens in the North.”
More from PostPolitics
Chris Cillizza and Aaron Blake7:00 AM ET
THE FIX | Two-thirds of people disapprove how the GOP is handling federal spending issues.
Glenn Kessler 6:00 AM ET
We examine the administration’s claims of circling planes and closed airport towers if the sequester is implemented.
Aaron Blake FEB 26
THE FIX | Republicans didn't succeed, but that doesn't mean the whole exercise was a bust.
Verrilli said that was not the government’s argument but that Congress decided in 2006 that Section 5 of the Voting Rights Act was still needed to protect the voting rights of minorities. The section requires nine states, mostly in the South, and local governments in other states to “pre-clear” any changes in voting laws with federal authorities.
Justice Antonin Scalia responded by saying flatly that he thought it was “not the kind of question you can leave to Congress,” because it was impossible for elected representatives to vote against such a measure.
The act has come to be seen as a “racial entitlement,” Scalia said, and “I am fairly confident it will be reenacted in perpetuity” no matter how much progress the states make in eliminating discrimination.
Verrilli responded that in the amendments passed after the Civil War, the Constitution quite clearly gives Congress express power to enforce voting rights and said it would be “extraordinary” for the court to second-guess its judgment in reauthorizing the act by nearly unanimous margins in 2006.
The oral arguments, which extended beyond a scheduled hour, revealed the court at its most ideologically polarized.
The court’s four liberals came armed with statistics about how minority voting rights were still more threatened in the states singled out in Section 5 than the rest of the country, and they warned about the need for judicial restraint.
When Bert Rein, attorney for an , said the court must conclude that Congress was wrong to find that reauthorization of Section 5 was necessary, Justice Elena Kagan responded: “That’s a big new power you’ve given us.”
Justice Sonia Sotomayor said, “Why should we make that judgment and not Congress?”
It has been clear since the court accepted the challenge from Shelby County, Ala., that Section 5 hung in the balance. Opponents of Section 5 carefully nurtured the case to get the issue back before the court. Section 5 covers Alabama, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia, as well as Alaska and Arizona.
The court heard a similar case in 2009, but decided it narrowly and sidestepped the question of whether Section 5 should be declared unconstitutional.
The court has upheld Section 5 and the formula used in deciding which states should be covered each time the law has been reauthorized since its initial passage in 1965.
The liberal justices told that his client and the state of Alabama were not the success stories that would make the law seem unnecessary.
Justice Ruth Bader Ginsburg said that no one contested that conditions in the South had changed but that Mississippi, Alabama and Louisiana were still the states where violations of the Voting Rights Act were most likely to occur.
Kagan said that almost any formula Congress devised to indicate where Section 5 was still needed “would capture Alabama.”
But Roberts, questioning Verrilli, said voter registration and turnout among blacks in Alabama was better than in Massachusetts.
Justice Samuel A. Alito Jr. said it made no sense that some states were covered and others were not, and he asked why the law should apply to Virginia but not Tennessee or some places in the Bronx rather than Brooklyn.
How far the court goes in deciding the case will most likely be determined by Justice Anthony M. Kennedy. He seemed particularly disturbed, as he did four years ago, by the federalism problem that arises from treating some states differently than others.
“Times change,” he said.
Kennedy suggested several times that another part of the law, which applies to the whole country, is enough to prevent discrimination.
One possibility for the court would be to keep Section 5 but to declare that the formula used in selecting the covered states, which is based on 1972 data, is outdated and must be revisited. Proponents of the law say that would effectively doom Section 5, because it would be so hard to get a new formula through a partisan and polarized Congress.
The case is Shelby County v. Holder.
Discuss this topic and other political issues in the .
318
Comments
Bosworth2
2:31 PM EST
Let me start off with the proposition that racism is alive and well in this country. Let me also acknowledge that there are still parts of this country (very small parts) that voting discrimination is still committed. I also believe that racism knows no geographical bounds.
Having said all this, I find it hard to credit that a Voting Rights Act written nearly 50 years ago, when a large proportion of African Americans lived lives of peril in the South, could still possibly have the same effectiveness today.
Many areas in the South that were previously majority white are now dominated by African Americans. Atlanta is a very good example of it. I doubt you would have held the same opinion of this statement in 1965.
Second, the Post seems obssessed with redistricting - a legal, if despicable political manuever committed by both political parties, regardless of race. But whites do not hold the corner on the market any more. if they did, then there would be no African Americans in our government today, as there were in 1965.
Not saying voter discrimination is going on. It may well be somewhere. But the Voting Rights Act has fulfilled her original purpose. A new statute reflecting modern demographics needs to be produced. I feel that a lot of people, for instance, would say that maybe Montana is full of white racists. Yet, they get a free pass, just because they're not in the South? This makes no sense.
The venerable law did some good. But, it has done all that it can. It needs a predecessor law to better reflect the new demographic realities of our ever-changing country.
