A sharply divided US Supreme Court engaged in a lively and, at times, impassioned debate on Wednesday in a potential landmark case testing whether key portions of the 1965 Voting Rights Act should be struck down as unconstitutional.
The 75-minute session marked the second time in four years the high court has agreed to examine the constitutionality of Sections 4 and 5 of the Voting Rights Act (VRA).
Four years ago, in 2009, the court stopped short of invalidating the measures. But the justices made clear in an 8-to-1 decision that the VRA contained constitutional deficiencies that Congress should address.
This time around the tone was significantly more aggressive, with justices on the court’s liberal wing offering spirited defenses of the VRA in its current form and justices on the conservative wing suggesting the law is seriously flawed.
In the first comment from the bench, Justice Sonia Sotomayor ripped into Washington lawyer Bert Rein, who is representing Alabama‘s Shelby County in its challenge to the statute. She said 240 discriminatory voting laws had been blocked in the county under Section 5 of the VRA. Then she asked: “Why would we vote in favor of a county whose record is the epitome of what caused the passage of this law to start with?”
Later in the argument, Chief Justice John Roberts raised questions about why some states are listed as covered jurisdictions, but others with similar discrimination records are not.
The chief justice asked Solicitor General Donald Verrilli if he knew which state had the worst ratio of white voter turnout to African-American voter turnout.
“I do not,” Verrilli responded.
“Massachusetts,” the chief justice replied. Massachusetts is not a covered jurisdiction under the VRA and thus does not have to submit voting changes to Washington for preapproval.
“Do you know which has the best, where African-American turnout actually exceeds white turnout?” Roberts asked.
“Mississippi,” Roberts said.
Verrilli said Congress made a judgment in 2006 to keep in place the broad VRA framework that had become a successful deterrent in targeted jurisdictions.
Section 5 of the VRA requires certain jurisdictions with a history of past discrimination to obtain prior approval from Washington before enacting any voting changes.
At issue in the case, Shelby County, Alabama v. Holder (12-96), is whether Congress overstepped its authority when it voted overwhelmingly in 2006 to reauthorize the so-called preclearance procedure for another 25 years.
The preclearance procedure dates from the VRA’s passage in 1965. Congress continues to rely on the same triggering criteria from the 1960s and 1970s to determine which jurisdictions are covered by the act.
Currently nine states are fully covered. The provision also applies to counties and smaller jurisdictions in seven other states.
The law has been called the most effective civil rights measure in US history. But jurisdictions long subject to its provisions complain that they are being unfairly singled out on the basis of an outdated formula fashioned by Congress back in the 1960s and 1970s, when racial discrimination in voting was a significantly larger problem.
The Obama administration and an array of civil rights groups are urging the court to uphold the law as well as the existing coverage formula.
Shelby County argues that the law is outdated, overbroad, and must be struck down.
At one point, Justice Samuel Alito suggested to the solicitor general that perhaps Congress should impose Section 5 coverage on the entire country.
Verrilli responded that Congress relied in part on statistics showing a higher rate of voting rights litigation in the existing covered jurisdictions.
Justice Alito also asked about the fact that Congress relied on a 46-year-old formula to determine in 2006 which states would continue to be subject to Section 5 enforcement and which would not.
Shortly after the VRA was passed it was immediately challenged in court. The Supreme Court upheld the law and its Section 5 coverage formula in a 1966 decision.
Alito asked the solicitor general if he believed the Supreme Court in 1966 would have upheld the Voting Rights Act if it had been based on voting statistics from 1919 — 46 years earlier.
“No,” Verrilli answered. But he noted that the high court had upheld the law four times since its passage. He said courts should defer to the judgment of Congress in such matters.
Several times the solicitor general mentioned that Congress reauthorized the VRA with wide margins of support.
It prompted Justice Antonin Scalia to deliver a soliloquy on why no US senator would want to vote “no” on the reauthorization of a law called the Voting Rights Act. “This court doesn’t like to get involved in racial questions such as this one. It is something that can be left to Congress,” he said.
But as the VRA came up for reauthorization in 1970, 1975, 1982, and then 2006, the number of senators voting against the measure declined until all opposition disappeared in 2006. Why is that? Justice Scalia asked. “I don’t think it is attributable to the fact that it is so much clearer now that we need this,” he said. “I think it is very likely attributable to a phenomenon called perpetuation of racial entitlement.”
“I don’t think there is anything to be gained by any senator to vote against continuation of this act,” Scalia said. “And I am fairly confident it will be reenacted in perpetuity unless a court can say it does not comport with the Constitution.”
Scalia added: “You have to show when you are treating different states differently that there’s a good reason for it.”
That’s the concern, Scalia said. “This is not the kind of question you can leave to Congress,” he added. “There are certain districts in the House [of Representatives] that are black districts by law.”
Scalia’s comment was directed at the solicitor general. Verrilli replied that enactment of the VRA involved Congress’s power under the Constitution to enforce fundamental rights. He said the court should show deference to the judgments of Congress on such issues.
A decision is expected by June.