Supreme Court Conservatives Express Skepticism over Voting Law Provision

Robert Barnes, Washington Post, February 27, 2013

The Supreme Court’s conservative justices strongly suggested Wednesday that a key portion of the Voting Rights Act is no longer justified and the time had come for Southern states to be freed from special federal oversight.

Chief Justice John G. Roberts Jr. asked Solicitor General Donald B. Verrilli Jr. whether it was the federal government’s contention that “the citizens in the South are more racist than citizens in the North.”

Verrilli said that was not the government’s argument but that Congress decided in 2006 that Section 5 of the Voting Rights Act was still needed to protect the voting rights of minorities. The section requires nine states, mostly in the South, and local governments in other states to “pre-clear” any changes in voting laws with federal authorities.

Justice Antonin Scalia responded by saying flatly that he thought it was “not the kind of question you can leave to Congress,” because it was impossible for elected representatives to vote against such a measure.

The act has come to be seen as a “racial entitlement,” Scalia said, and “I am fairly confident it will be reenacted in perpetuity” no matter how much progress the states make in eliminating discrimination.

Verrilli responded that in the amendments passed after the Civil War, the Constitution quite clearly gives Congress express power to enforce voting rights and said it would be “extraordinary” for the court to second-guess its judgment in reauthorizing the act by nearly unanimous margins in 2006.

The oral arguments, which extended beyond a scheduled hour, revealed the court at its most ideologically polarized.

The court’s four liberals came armed with statistics about how minority voting rights were still more threatened in the states singled out in Section 5 than the rest of the country, and they warned about the need for judicial restraint.

When Bert Rein, attorney for an Alabama county that is the named challenger, said the court must conclude that Congress was wrong to find that reauthorization of Section 5 was necessary, Justice Elena Kagan responded: “That’s a big new power you’ve given us.”

Justice Sonia Sotomayor said, “Why should we make that judgment and not Congress?”

It has been clear since the court accepted the challenge from Shelby County, Ala., that Section 5 hung in the balance. Opponents of Section 5 carefully nurtured the case to get the issue back before the court. Section 5 covers Alabama, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia, as well as Alaska and Arizona.

The court heard a similar case in 2009, but decided it narrowly and sidestepped the question of whether Section 5 should be declared unconstitutional.


Justice Samuel A. Alito Jr. said it made no sense that some states were covered and others were not, and he asked why the law should apply to Virginia but not Tennessee or some places in the Bronx rather than Brooklyn.

How far the court goes in deciding the case will most likely be determined by Justice Anthony M. Kennedy. He seemed particularly disturbed, as he did four years ago, by the federalism problem that arises from treating some states differently than others.

“Times change,” he said.

Kennedy suggested several times that another part of the law, which applies to the whole country, is enough to prevent discrimination.



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  • Eagle_Eyed

    The issue here is that states are being treated differently, something which cannot be rationalized away. Of course this legal incongruence was present when the law was enacted.

    The old-time segregationists predicted that civil rights would expand beyond so-called equality, and boy were they right.

  • Of all people, Rush speculated today that Obama rolled out the Rosa Parks statue and Harry Reid talked about Django Unchained and Lincoln the movies on the Senate floor because both actions were timed to these SCOTUS arguments today.

    My main grind with the VRA ’65 (and I have a lot of them) is that you have to have Section 5 be law for the whole country or none of the country. It’s as stupid as saying that foreign espionage is a Federal crime in Iowa but not in Oregon.

    • The__Bobster

      Why is that commie plant Rosa Parks getting a statue in a prominent place, a place where it can’t be shat upon?

  • MobyWhite

    Even if the the Red States get what they want, the relief will be only temporary. Anything conservative coming out of SCOTUS or the Tea Party will be wiped away by the coming new Demographic Change Diversity majority.
    White privilege is making a last gasp effort to turn back the clock, but the clock is ticking toward Diversity Doomsday.

    Whites just haven’t grasped what it will mean as we become minoritized. May God in is mercy make it mean the Most for White liberals…

  • The__Bobster

    The Supreme Court’s conservative justices strongly suggested Wednesday
    that a key portion of the Voting Rights Act is no longer justified and
    the time had come for Southern states to be freed from special federal

    The Yankees have been grinding their heels on the South for 150 years. When will it end?

  • dd121

    Hit a nerve did we?

  • Ulick

    Keep in mind that in 1965, the Section 5 DOJ preclearance requirements were authorized for just five years. But Congress has extended them four times, most recently in 2006 — for 25 years. Yes, the presumption of white racism legally extends to close to the period that whites will lose their majority status. As Paul Kersey says — it’s Black Run America.

    The Justices will not overturn Section 5 because, like how Muslims get their way though violence, the Justices fear blacks will riot. AA, Section 5, Section 8, they will all stay to placate blacks to keep the peace. Black Run America indeed.

    • Epiminondas

      Don’t worry. It will all come apart at the seams well before blacks can do much more damage.

  • bigone4u

    I saw this story yesterday somewhere else, a liberal website. The comments section was filled with racial stereotyping of southerners. Many of the comments implied or suggested genocide against whites, especially older whites. The more this kind of hatred of whites is expressed openly, the more optimistic I am that white people will wake up. I hope I’m not being stupid.

    • GB101

      I read one comment in such a place saying that racism is in Southerners’ DNA. Kinda like saying that blacks should not be allowed to vote because their DNA makeup does not allow them to vote rationally.

      • The__Bobster

        The difference is that the second statement is true.

      • Jefferson

        I love the fact that the South produces the largest number of racially aware Whites than any other region of this country.

        The South would be a great place to live if they did not have such a huge Bantu population. All of the big cities in the South basically look like Sub Saharan Africa. Whether it’s Memphis, Little Rock, New Orleans, Baton Rouge, Birmingham, Atlanta, or Savannah.

        The South is just way too Black for my taste. Especially for a guy like myself who lives in a California city that is only 6 percent Black. Unlike White Southerners, I am not used to being surrounded by so much Blackness. I don’t know how White Southerners put up with it. I can barely stand the 6 percent Black population in my own California city. But White Southerners put up with a much higher percentage of Blackness than 6 percent.

        • Whirlwinder

          Sounds like there are some ‘racialy aware’ folks in Califonria.

        • Epiminondas

          The difference is that whites and blacks in the South respect each other more down there than outside the region. There isn’t anywhere near as much animosity and tension between the races in the South as there is in the North. Basically, good fences make good neighbors, and both sides know this intuitively. Only liberals can’t seem to grasp it.

          • dukem1

            “Good fences make good neighbors.” So true.

  • IKantunderstand

    Wow. All of a sudden the court’s liberals have a problem with exercising their power! Typical. So sick of the left liberal hypocrisy. Been there, seen it. These libs have no problem stepping in and essentially making law. Despite the Congress. Now, whoa, the Congress is all important in making law. F in hypocrites! They are so brazen! They know what they are doing. And, they don’t care. Egalitarianism for everybody. Perverts, pedophiles, illegal aliens, ,junkies, alcoholics,insane maniacs, ne’er do wells, boys who think they are girls, girls who think they are boys, people who have had anal probes by space aliens. The people who are NOT equal are people who are White, people who want to smoke pipes, cigarettes, or chew. People who have guns(but don’t commit murder or armed robbery), people who want to eat whatever the hell they want to eat, and insist on their first amendment right to say what they want. People who work for their food and their shelter, people who are independent and free in mind and spirit. You know, according to the libs, the dregs of society. Seriously, we are the dregs of society. Do you understand that? Fight back NOW. We are literally in a fresh Hell. We are still the majority. Make friends with the people at Occidental Dissent. Let’s get over the so called “Great Migration”. This article brings up a valid question: Is the South more racist than the North? The answer is: Who cares.

  • GB101

    The Post article names the states covered by Section 5 but does not explain how the law works. The states are not named in the act. The law applies to certain jurisdictions according to a formula based on voter turnout – in 1960 and 1964! So the government must explain why it is OK to have a law apply to certain jurisdictions and not others – in 2013! -based what happened when JFK and LBJ were elected.

    • Arizona is part of Section 5 only because the state had the temerity to produce a challenger to Lyndon Johnson in 1964. They scream “formula,” but in reality, it’s all political.

  • Bon, From the Land of Babble

    LBJ signed the unconstitutional VRA into law and now it’s in danger of being partially struck down? The Horror!! This could open the door to all kinds of abominations like voter ID laws and insisting on proof of US citizenship.

    the court’s five conservative justices voiced strong doubts about the law’s ongoing validity

    Five conservatives? There are three strong conservative votes and four dependable lefty votes.

    Roberts can no longer be counted on AFAIC and Kennedy is iffy at best.

    Wonder if Roberts will fold again….

    Judge Roberts! Please pick up a white paging telephone, White House legal wishes to speak to you again concerning the adoption process of your two children. We’ve got the Irish authorities on hold…


    • JohnEngelman

      LBJ signed the unconstitutional VRA into law.

      – Bon, From the Land of Babble

      Here is Section 1 of the Fourteenth Amendment: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

      Here is Section 1 of the Fifteenth Amendment:The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

      Here is the Voting Rights Act of 1965:

      How is it unconstitutional?

      • Bon, From the Land of Babble

        The VRA flies in the face of the 15th Amendment’s requirement that all voters be treated equally.

        All 50 states must be treated equally under our system of laws.

        The 15th Amendment prohibits states from imposing any “voting qualification or prerequisite to voting, or standard, practice, or procedure … to deny or abridge the right of any citizen of the United States to vote on account of race or color.”

        Specifically, Congress intended the VRA to outlaw the practice of requiring otherwise qualified voters to pass literacy tests in order to register to vote, a principal means by which Southern states had prevented African Americans from exercising the franchise.

        The VRA requires that certain states and certain jurisdictions surmount significant administrative or judicial hurdles any time they want to make any change to their voting laws, no matter how trivial. It discriminates by requiring some state and local governments to seek such preclearance but not others.

        “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 mentioned today that the VRA is a “perpetuation of racial entitlement.”

        All 50 states must be treated equally under our system of laws.

        That’s why it’s Unconstitutional.


        • JohnEngelman

          It would be easier for me to agree with you were it not for the fact that Southern states effectively prevented the vast majority of blacks living in them from voting. This was a violation of the Fourteenth and Fifteenth Amendments.

          • Epiminondas

            Thanks for that vote of confidence, Yank.

  • LHathaway

    “were it not for the fact that Southern states effectively prevented the vast majority of blacks living in them from voting”

    Please! one county out of one hundred, in a few specific states, kept two or three guys from voting. . most likely for the purpose of highlighting injustice, i.e. arousing hatred of whites. Yer claims are no different from ones about ‘in the united states’, or, ‘all over the united states’ blacks were all prevented from voting. or about any other racial claim one learns in school or reads in the paper.

  • CLC

    WHITE is the MINORITY…….. Where is OUR FREE RIDE for being a minority?!?

  • anarchyst

    “Equal justice under law” is supposed to be the premise for judicial action in this country. Laws are supposed to be applied equally and fairly. It appears that in some instances, this is not the case. The “Voting Rights Act specifically covered states in which voting “misconduct” was perceived. Southern states (even with no real proof) were marginalized and made to obey laws that northern states were “exempt” from.
    It turns out that there is much more voter fraud in the northern states than there ever was in the south. When voter precincts report a 120% voter turnout and NO votes for one certain party, thre is definitely something wrong . . . in fact, the only reason John F Kennedy won the 1960 election was that the dead people in Chicago’s cemeteries cast ballots too. . .

  • thurlow

    Roberts will rule it is a tax and uphold it.

  • LHathaway

    seems to me like this is a dog and pony show of a sort. I’d compare it to the used of the ‘n’ word that gets talked about on day time television from time to time. Many people use the term ‘redneck’ a racial slur, with impunity, even using it in an attempt to Show everyone else how enlightened they are. While this goes on, television shows have a fevorish debate when someone, somewhere, has used the ‘n’ word, it’s nearest corallary. We have the media and the hight court in earnest discussion of this while the only ones being denied their voting right these days are a scattering of whites? and that’s before we discuss ‘voter fraud’.