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. Justice Antonin Scalia called the provision, which requires nine states, mostly in the South, to get federal permission before changing voting procedures, a “perpetuation of racial entitlement.” Chief Justice John G. Roberts Jr. asked a skeptical question about whether people in the South are more racist than those in the North. Justice Anthony M. Kennedy asked how much longer Alabama must live “under the trusteeship of the United States government.” The court’s more liberal members, citing data and history, said Congress remained entitled to make the judgment that the provision was still needed in the covered jurisdictions. “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.” Four of the nine-member court’s five more conservative members asked largely skeptical questions about the law. The fifth, Justice Clarence Thomas, did not ask a question, as is typical.
The law, a landmark achievement of the civil rights era was challenged by Shelby County, Ala., which said that the requirement 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 reauthorizing the provision for 25 years in 2006, Congress did nothing to change the criteria for inclusion under the provision, relying instead on a formula based on historic practices and voting data from elections held decades ago. Much of the argument concerned that coverage formula.
Should the court strike down the coverage formula, Congress would be free to take a fresh look at what jurisdictions should be covered. But making distinctions among the states based on new criteria may not be politically feasible.
Four years ago, the court signaled that the law may need revision to withstand constitutional scrutiny, hinting that Congress might want to take a fresh look at the places subject to the preclearance provision, called Section 5. Congress failed to act.
Solicitor General Donald B. Verrilli Jr. said Congress had made a considered and cautious decision in extending the act.