Posted on February 27, 2013

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.