Central parts of an election law dating back to the civil rights struggles of the 1960s, the Voting Rights Act, appeared to be in jeopardy Wednesday after the Supreme Court heard oral arguments in a challenge to them. NBC’s Pete Williams reported after the oral argument, “I think it’s a safe prediction to say that the Voting Rights Act, as it now stands, is not going to survive. The question is: how far will the Supreme Court go in striking parts of it down?” Williams said what seemed to concern a majority of the justices was “the fact that the law is too backward looking.” The justices were weighing an appeal from Shelby County, Ala., asking the court to find that Congress exceeded its power when it renewed the two key sections of the law in 2006. Under Section 5 of the law, nine states, mostly in the South, but also including Alaska and Arizona, as well as dozens of counties, townships, cities, and elected boards in other states, must get permission, or “preclearance,” from the Justice Department or a federal court in Washington for any change in voting procedures, no matter how small, that they seek to make.
Shelby County’s lawyer Bert Rein argued that Section 5 of the Voting Rights Act – which Congress renewed for another 25 years in 2006 – is unconstitutional because the formula used to determine which states are covered is outdated – based on voter turnout and registration data from 1972.
The blatant racial intimidation and discrimination in voting procedures that prevailed in states such as Alabama when the law was written in 1965 and renewed in 1970, 1975, and 1982, no longer exist, the county says.
“The problem, many of the justices say, is that now the law when it was re-enacted the last time (in 2006) isn’t forward looking enough,” Williams reported. “Many of the justices said that the problems in the South aren’t as bad as they are in some places in the North.”
Williams reported that during the one hour-and-15 minute oral argument, Justice Anthony Kennedy said that the post-World War II Marshall Plan to rebuild Europe “was a good thing at one time, but times change.”
Overshadowing Wednesday’s argument was the Supreme Court’s decision in a 2009 Texas case, Northwest Austin Municipal Utility District Number One vs. Holder. In that decision the court expressed doubts about the continued need for Section 5, noting that “voter turnout and registration rates now approach parity” between whites and blacks in the states covered by section 5.
Another part of the Voting Rights Act which is not being challenged in Wednesday’s case is Section 2 of the law which bans all voting procedures that discriminate on the basis of race, color, or membership in a language minority group. Unlike Sections 4 and 5 of the law, Section 2 covers all 50 states.