High court split clouds Voting Rights Act’s fate
Justices debate whether South is unfairly targeted
WASHINGTON — The historic Voting Rights Act appeared to be in deep trouble Wednesday after the Supreme Court’s conservative justices insisted during a racially charged argument that targeting the South for special scrutiny is no longer fair.
The debate was unusually tense and clearly split along ideological lines. The justices from the left and the right took turns arguing the case — and arguing with one another over whether racism and racial discrimination remain a real problem today.
At one point, Justice Antonin Scalia referred to the law as a “perpetuation of racial entitlement,” a phrase that irked Justice Sonia Sotomayor, who objected this week to a Texas prosecutor’s focus on the race of the defendants. After Scalia spoke, she repeatedly pressed a lawyer for an Alabama county to say whether “the right to vote is a racial entitlement.” He steered around the question.
When the Obama administration’s top courtroom lawyer rose to defend the law, Chief Justice John Roberts asked if the administration thinks “citizens in the South are more racist than citizens in the North.”
No, said Solicitor General Donald Verrilli Jr. But there is reason to believe that voter discrimination remains more of a problem in the South, he said.
At stake in the case is Section 5 of the law, the portion that requires nine states, mostly in the South, to submit changes in voting rules or election laws to federal officials for “pre- clearance” before they can take effect. In 2006, Congress renewed this requirement for 25 more years.
Lawyers for Shelby County, Ala., sued to challenge the law, arguing it is outdated and unfairly singles out the Southern states based on their history of discrimination. If the high court were to agree and strike down this part of the law, it would still be illegal for cities or states to change their voting rules or election districts so as to discriminate against AfricanAmericans or Latinos. Congress could still revise the law, and the government or civil rights lawyers still could file lawsuits to contest such changes.
Civil rights advocates say the Voting Rights Act remains a powerful tool for stopping changes in election rules that hurt minorities andpreventthemfrom voting. They include changes as simple as switching the location of a polling place in the weeks before an election.
“There are thousands and thousands of these under- the- radar- screen changes,” Verrilli told the court, calling the current law a “deterrent” to this “kind of mischief.”
But the five conservative justices did not sound convinced. When Verrilli noted the Senate had voted unanimously in 2006 to extend the law and its special oversight for much of the South, Scalia said he was not impressed.
“Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes,” he said. “This is not the kind of question you can leave to Congress.”
Justice Elena Kagan objected. If the Senate voted 98-0 to extend the law, “that sounds like a good argument to me, Justice Scalia,” she said, in a rare open exchange of views.
As usual, all eyes were on Justice Anthony Kennedy, whose vote is likely to be decisive. He criticized Congress for not revising the 1960s-era formula for deciding which states get special oversight.
“If Congress is going to single out separate states,” he said, it should use criteria that are relevant to the existing problems, he said.
Verrilli responded that both the court and Congress have steadily supported the law in the past.
“Well, the Marshall Plan (after World War II) was very good too,” Kennedy replied. “But times change.”