The United States Supreme Court considered Wednesday whether the stains of slavery and segregation still warrant aggressive federal intervention in the voting procedures of a few targeted areas.
The Court’s conservatives voiced sharp skepticism of Section 5 of the 1965 Voting Rights Act, which is aimed at nine states, including Georgia, and parts of seven other states. Based on their history of discriminating at the polls, those “covered jurisdictions” are required to get prior federal approval for any change affecting voting.
Chief Justice John Roberts at one point asked Solicitor General Donald Verrilli, who was defending the law: “Is it the submission of the government that citizens in the South are more racist than citizens in the North?”
Verrilli said no, the government is merely claiming that the record assembled by Congress in its 2006 renewal of the law showed persistent problems in certain parts of the country. Those problems, he said, continue to warrant Section 5’s unequal treatment of targeted states, most of which are in the Deep South.
Justice Stephen Breyer, a member of the court’s more liberal wing, retorted that, while there has been progress, the “disease” of voting discrimination remains. “Of course this was aimed at states,” he said. “What do you think the Civil War was about?”
The day in Washington was thick with civil rights symbolism.
On the court’s steps, a protest led by unions and civil rights leaders including the Rev. Al Sharpton urged the justices to uphold the law. Across the street at the United States Capitol, the nation’s first black president, Barack Obama, dedicated a statue of civil rights pioneer Rosa Parks.
U.S. Rep. John Lewis, an Atlanta Democrat, attended the Supreme Court argument and the statue dedication. Lewis was beaten in the 1965 Selma, Ala., march that inspired the Voting Rights Act. He still has a pen President Lyndon B. Johnson used to sign the law.
After the arguments, Lewis said he was “hopeful and optimistic” that five of the nine justices would uphold the law but was troubled by one comment in particular from conservative Justice Antonin Scalia.
While supporters of the law cite the overwhelming vote to renew it in 2006 – including unanimous passage in the Senate – as evidence of its continued necessity, Scalia found the vote suspicious.
Scalia said the law is a “perpetuation of a racial entitlement” that, because of politics, will continue forever unless the court steps in.
“I didn’t like that line,” Lewis said. “For him to be on the bench to say something like that openly – you might hear members of Congress say that, but why would a member of the Supreme Court say that?”
Justice Sonia Sotomayor later asked the plaintiffs’ attorney, Bert Rein, if the right to vote was a “racial entitlement,” a remark that appeared to be directed more at Scalia.
The court’s liberal wing had the toughest questioning for Rein, representing Shelby County, Ala. which initiated the challenge. Georgia is among several states that filed a “friend of the court” brief in support of Shelby County’s arguments.
Expecting a court challenge to the renewal of Section 5, Congress built an extensive record of testimony and data in 2006. But Rein said there was not enough evidence that the “covered jurisdictions” under Section 5 truly deserve to be singled out.
Roberts seemed to agree, noting that Massachusetts (not covered) has the lowest rate of black voter turnout in the country, while Mississippi (covered) has the highest.
Section 2 of the Voting Rights Act outlaws any law or procedure that dilutes minority voting power, but the burden rests on the group that feels aggrieved to file a challenge or lawsuit. Section 5 puts the burden on the covered jurisdictions, allowing the federal government to step in before a discriminatory change is made.
That’s what happened just a couple months ago in consolidated Augusta-Richmond County, where the Department of Justice blocked a plan to move some municipal elections from November to July. The department found that change discriminatory, because in July black turnout falls off far more than white turnout.
The Voting Rights Act initially was meant to rectify egregious practices such as literacy tests, which prevented millions of African Americans from registering to vote. Rein declared the turnout and registration problems “solved.”
But courts and the Department of Justice have found numerous more subtle attempts to dilute minority voting power, such as majority-white jurisdictions changing to at-large elections, eliminating heavily minority districts.
Justice Anthony Kennedy, a perpetual swing vote on the Court, seemed skeptical of the continued need for Section 5, but not aggressively so. Responding to evidence of the law’s success, Kennedy quipped that the Marshall Plan and the Northwest Ordinance were fantastic laws that no longer apply.
“Things have changed,” he said.
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