WASHINGTON – The historic Voting Rights Act appeared to be in 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 unusually tense debate split along ideological lines. Justices from the left and right took turns arguing the case – and arguing with each other over whether racism and racial discrimination remain problems.
At one point, Justice Antonin Scalia referred to the law as a “perpetuation of racial entitlement,” a phrase that irked Justice Sonia Sotomayor, who voiced strong objection earlier this week over a Texas prosecutor’s focus on defendants’ race. After Scalia spoke, she repeatedly pressed a lawyer for Alabama’s Shelby 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, U.S. Solicitor General Donald Verrilli Jr. said, but there is reason to believe that discrimination in voting remains more of a problem across the South.
The case concerns the law’s Section 5, which 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.
Shelby County sued to challenge the law, arguing that it is outdated and unfairly singles out Southern states based on their history of discrimination. If the high court were to 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 African-Americans or Latinos. Congress could still revise the law, and the government or civil rights lawyers still could file lawsuits to contest such changes. This often takes much time and money, however.
Civil rights advocates say the Voting Rights Act remains a powerful tool for stopping changes in election rules that hurt minorities and prevent them from voting. They include changes as simple as switching the location of a polling place weeks before an election.
“There are thousands and thousands of these under-the-radar-screen changes,” Verrilli told the court. The current law serves as a “deterrent” to this “kind of mischief,” he said.
The conservatives 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, noting that the Senate extended the law by a 98-0 vote. “That sounds like a good argument to me, Justice Scalia,” she said. It means “every senator from a covered state” in the South said the law was still needed.
As usual, all eyes were on Justice Anthony M. Kennedy, whose vote is likely to be decisive. He criticized Congress for not revising the 1960s-era formula for deciding which states receive special oversight.
“If Congress is going to single out separate states,” he said, it should use criteria that are relevant” to current problems.
A decision is expected by late June.