A predictably divided Supreme Court appeared ready to strike down–at least in part–the key enforcement provision of the landmark Voting Rights Act of 1965, with many conservative justices on Wednesday suggesting it was a constitutionally unnecessary vestige of the civil rights era.
Known as Section 5, it gives the federal government open-ended oversight of states and localities mostly in the South with a history of voter discrimination. Any changes in voting laws and procedures in all or parts of 16 covered states must be “pre-cleared” with Washington.
That could include something as simple as moving a polling place temporarily across the street. The provision was reauthorized by Congress in 2006 for another 25 years, and officials in Shelby County, Ala., subsequently filed suit, saying the monitoring was overly burdensome and unwarranted.
In a tense 80 minutes of oral arguments, Justice Sonia Sotomayor asked why the court would rule “in favor of the county that is the epitome” of what caused the law to be passed in the first place.
Her three reliably liberal colleagues appeared to support continued use of the coverage formula run by the federal Justice Department. But Justice Samuel Alito wondered why some states were subject to oversight and not others.
“Why shouldn’t it apply everywhere in the country,” he asked.
The other four more conservative justices had tough questions for the Obama administration’s positions.
A ruling in this appeal is expected by June.
Justice Antonin Scalia produced gasps in the courtroom when he reiterated concerns by some observers that reauthorization of the Voting Rights Act by lawmakers seven years ago was due in part to political expediency.
“I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes,” he said. “I don’t think there is anything to be gained by any senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless a court can say it does not comport with the Constitution,” he said.
Civil rights groups say Section 5 has proven an important tool to protect minority voters from local governments that would set unfair, shifting barriers to the polls. If it is ruled unconstitutional, they warn, the very power and effect of the entire Voting Rights Act would crumble.
In an article special to CNN, NAACP President Benjamin Todd Jealous, and Penda Hair, co-director of Advancement Project, outlined five key misconceptions about the Voting Rights Act and why it remains as relevant today as the day it was originally signed:
(1) Section 5 unfairly punishes the South for its past.
This provision of the Voting Rights Act requires jurisdictions with a history of discriminatory voting practices to get federal “pre-clearance.” This applies to not just Southern states, but also to other states such as Alaska, Arizona, along with certain counties in New York, Michigan, South Dakota, New Hampshire and California. Once a state has demonstrated it can fairly run elections for a period of 10 years, it can be exempted from Section 5.
In fact, every jurisdiction that has sought this “bailout” since 1982 has been approved. The jurisdictions that remain covered by Section 5 have not applied for bailouts. They are not being punished for their past, but held accountable for their present practices.
(2) The formula is outdated.
Section 5 is not static, and dozens of jurisdictions have been added under the provision since it was first passed. In fact, Section 5 was reconsidered and reauthorized by Congress in 1970, 1975, 1982 and 2006 based on extensive evidence of continuing discrimination.
(3) Section 5 is no longer applicable.
The Voting Rights Act was passed not only for the most extreme acts of intimidation, but also for the small changes, such as literacy tests and poll taxes, that made voting harder for people of color and poor Whites. The last few years leading up to the 2012 elections saw the greatest efforts to pass restrictive voting laws since the post-Reconstruction era, including limiting the type of ID that people can use, and requiring additional proof of citizenship to register and vote, all of which disproportionately impact people of color and the working poor.
Jealous and Harris say these adjustments unfairly shift the goal line and demonstrate why Section 5 is still needed.
(4) Section 2 is sufficient to ensuring fair voting procedures.
While Section 2 of the law bans voting practices that discriminate on the basis of race or ethnicity, it is enforced only through lawsuits. When lawsuits are filed, the burden of proof rests with the challenger (not the local or state government that has changed voting rules).
In contrast, Section 5 ensures that discrimination can’t take hold by blocking problematic policies from going into effect in the first place. Without these precautions, unfair voting policies could go unchecked, leaving disenfranchised voters to face harm later.
(5) The country re-elected an African American president, with a large share of support from Black and Latino voters, so we no longer need their votes to be protected by Section 5.
Section 5 made a difference in the 2012 elections. It blocked restrictive photo ID laws in Texas and South Carolina, and was used to reject a Texas redistricting plan that would have undercut Latino voting power.
“It is against this backdrop that the Supreme Court heard the challenge to Section 5 of the Voting Rights Act. Losing this provision would signal a green light for even more partisan legislatures to manipulate election laws for political gains.
“At a time when voting rights are increasingly under attack, we should be expanding federal oversight of voting laws, not scrapping the most effective civil rights legislation ever enacted,” the article stated.
But opponents of the provision counter it should not be enforced in areas where it can be argued racial discrimination no longer exists.
The appeal presents the court and its shaky conservative majority with two of the most hotly debated issues in politics as well as constitutional law–race and federalism.
The justices used competing statistics in Wednesday’s public session to make their points.
Justice Elena Kagan pointed out Alabama was about a quarter African American, but has no Black statewide elected officials.
But Chief Justice John Roberts asked the government lawyer: “Do you know which state has the worst ratio of White voter turnout to African American voter turnout?–Massachusetts. Do you know what has the best, where African American turnout actually exceeds White turnout?–Mississippi.”
He cited similar numbers for voter registration.
Roberts later asked Solicitor General Donald Verrilli: “Is it the government’s submission that the citizens in the South are more racist than citizens in the North?”
Verrilli replied simply, “It is not.”
The Obama administration points out that states have gotten out of Section 5. In recent years, 31 cities and counties and Virginia successfully petitioned to be exempt from the pre-clearance requirements.
Shelby County has not made such a request and opposes Section 5 on its face. The county is 11 percent African American, compared with 28 percent statewide.
Until now, the court has avoided the key question over the law’s constitutionality. Some conservative groups have argued that “ancient formulas” are being applied today, not to erase discrimination, but to benefit a particular political party.
Some liberal activists counter Section 5 and federal oversight are being demonized by many on the right for purely partisan gain, and to divide Americans again over race.
Bill Mears | CNN Supreme Court Reporter