Justices skeptical of pre-clearance provision in Voting Rights Act
Published: February 28,2013
WASHINGTON — The Supreme Court’s conservative justices voiced deep skepticism yesterday about a section of a landmark civil rights law that has helped millions of Americans exercise their right to vote.
In an ominous note for supporters of the key provision of the Voting Rights Act, Justice Anthony Kennedy both acknowledged the measure’s vital role in fighting discrimination and suggested that other important laws in U.S. history had run their course. “Times change,” Kennedy said during the fast-paced, 70-minute argument.
Kennedy’s views are likely to prevail on the closely divided court, and he tends to side with his more conservative colleagues on matters of race.
The court’s liberals and conservatives engaged in a sometimes tense back-and-forth over whether there is an ongoing need in 2013 for the part of the voting rights law that requires states with a history of discrimination, mainly in the Deep South, to get approval before making changes in the way elections are held.
Justice Antonin Scalia called the law a “perpetuation of racial entitlement.”
Chief Justice John Roberts, a vocal skeptic of the use of race in all areas of public life, cited a variety of statistics that showed starker racial disparities in some aspects of voting in Massachusetts than in Mississippi. Then he asked the government’s top Supreme Court lawyer whether the Obama administration thinks “the citizens in the South are more racist than citizens in the North?”
The answer from Solicitor General Donald Verrilli was no.
The question, and others like it from the conservative justices, largely echoed the doubts they first expressed four years ago in a similar case that ended without resolving the constitutionality of the latest renewal of the voting rights law, in 2006. They questioned whether there remain appreciable differences between the locations covered by the law and those that are not. They also wondered whether there was any end in sight for a provision that intrudes on states’ rights to conduct elections and which was regarded as an emergency response to decades of state-sponsored discrimination in voting, despite the Fifteenth Amendment’s guarantee of the vote for black Americans.
The provision shifted the legal burden and required governments that were covered to demonstrate that their proposed changes would not discriminate. Another part of the voting rights law, not being challenged, allows for traditional, after-the-fact claims of discrimination in voting and applies across the country.
As his administration was defending the voting rights law, President Barack Obama was across the street at the Capitol unveiling a statue of civil rights pioneer Rosa Parks, who in 1955 famously refused to give up her seat on a city bus in Montgomery, Ala., to a white man. The court will have to decide whether the conditions that gave rise to that seminal event are, like the statue, a part of history, or whether they persist in parts of the nation.
The court’s four liberal justices, including Obama appointees Elena Kagan and Sonia Sotomayor, appeared uniformly to be willing to defer to the decision by Congress that more progress needs to be made before freeing states from the special federal monitoring.
Those justices aggressively questioned Bert Rein, the lawyer representing Shelby County, Ala., in its challenge to the law.
Sotomayor acknowledged some parts of the South had changed, but she asserted that recent voting rights lawsuits in Alabama suggested that Shelby County, near Birmingham, has not made sufficient progress.
“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?” Sotomayor asked.
Kagan chimed in that any formula devised by Congress “would capture Alabama,” where she said certain discriminatory voting practices have persisted.
But Rein said the issue was whether the formula in place, using statistics that are at least 40 years old, remains a valid way to determine which locations have to ask for permission to make voting changes.
Debo Adegbile, a lawyer for the NAACP Legal Defense and Educational Fund, argued to the court on behalf of local Alabama elected officials and civil rights leaders. He sought to show the justices that there is a current need for the law, an effort to counter the court’s admonition four years ago that current conditions, not history alone, must justify the continuing application of the law.
In 2011, Adegbile said, a judge in Alabama cited state lawmakers’ derogatory references to African-Americans as a reason to continue to protect minority voters through the Voting Rights Act.
But Roberts challenged the lawyer. “Have there been episodes, egregious episodes of the kind you are talking about in states that are not covered?” the chief justice asked.
Absolutely, Adegbile replied.
“Well, then it doesn’t seem to help you make the point that the differential between covered and noncovered continues to be justified,” Roberts said.
The requirement currently applies to the states of Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia. It also covers certain counties in California, Florida, New York, North Carolina and South Dakota, and some local jurisdictions in Michigan and New Hampshire. Coverage has been triggered by past discrimination not only against blacks, but also against American Indians, Asian-Americans, Alaska Natives and Hispanics.
Among the covered states, Alabama, Alaska, Arizona, Georgia, South Carolina, South Dakota and Texas are siding with Shelby County, while California, Mississippi, New York and North Carolina argue that the law should be upheld.
Nearly 250 of the 12,000 state, county and local governments covered by the law have used an escape hatch to get out from under the special oversight by demonstrating that they and smaller places within their borders no longer discriminate in voting. The 10 covered towns in New Hampshire are poised to exit as they await federal court approval for an agreement between the state and the Justice Department.
Thousands more jurisdictions also may be eligible, said voting rights expert Gerry Hebert. But that list probably does not include Shelby County, because one of its cities, Calera, defied the voting rights law in 2008 and provoked intervention by the Justice Department during the Bush administration.
Alabama’s statistics offer fodder to both sides.
“I could tell you that in Alabama the number of legislators in the Alabama Legislature are proportionate to the number of black voters. There’s a very high registration and turnout of black voters in Alabama,” Rein said.
Kagan put forward other numbers showing the state at or near the top of successful claims of voting discrimination. She the state is about 25 percent black but has no black elected statewide official.
Exit polls in November showed Obama won only about 15 percent of the state’s white voters. In neighboring Mississippi, the numbers were even smaller, at 10 percent, the surveys found.
The prior approval requirement played a major role last year in blocking or delaying voting laws in South Carolina and Texas.
Federal judges in Washington refused to sign off on two separate Texas plans to institute a tough photo identification law for voters and redistricting plans for the state’s congressional delegation and Legislature. Also, South Carolina’s plan to put in place its own voter ID law was delayed beyond the 2012 election and then allowed to take effect only after the state carved out an exception for some people who lack photo identification.
Those episodes were not discussed Wednesday, although they are part of the voluminous written filings in the case.
Instead, the bulk of the discussion concerned Congress’ actions in 2006, when overwhelming majorities in the Republican-led Congress approved and President George W. Bush signed a 25-year extension of the prior-approval measure, which was first adopted in the Voting Rights Act of 1965.
Scalia pointed to the lopsided vote as a reason to question its legitimacy, even though as Kagan said, every senator in states covered by the law voted for it. Perhaps, he said, they decided “they’d better not vote against it, that there’s nothing, that there’s none of their interests in voting against it.”
Later, Scalia said he worries that the provision will never fade away because members of Congress would be reluctant to risk a vote against it. “It’s a concern that this is not the kind of a question you can leave to Congress,” he said.
Scalia capped his comment with this observation: “Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?”
A decision is expected by late June.
The case is Shelby County, Ala., v. Holder, 12-96.
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