The conservative and liberal wings of the Supreme Court sparred Wednesday morning over the future of the Voting Rights Act, as the Court heard arguments in a case that challenges one of the central pillars of the law protecting racial minorities' right to vote.
The case, Shelby County, Ala. v. Holder, centers on Section 5 of the Voting Rights Act, the segment requiring certain state and local governments to get "preclearance" from the Justice Department or a federal court before implementing changes in laws and regulations related to voting. That includes everything from statewide redistricting plans to changing the location of a polling place.
The nine covered states -- mostly in the South -- and other covered areas are identified via a formula in another section of the law, which was designed to answer decades of minority voter suppression in the former Confederacy. The validity of the formula is the main ingredient of the argument to overturn part of the Voting Rights Act, which was originally signed into law in 1965 and has since been extended several times, most recently in 2006. At one point during Wednesday's oral arguments, Chief Justice John Roberts asked Solicitor General Donald Verrilli whether it was the government's position "that citizens of the South are more racist" than people in other parts of the country. (Verrilli said it was not.)
The attorney representing Shelby County, Bert Rein, argued that the Voting Rights Act had achieved its primary objective of reducing race-based disparities in voting and voter registration. Rein said that Congress, by renewing the formula covering Alabama in 2006, was improperly denying the state and county its own "equal dignity" and sovereignty to make its own voting decisions. Rein argued -- and several justices seemed to concur in their questioning -- that other states now have worse racial voting problems than Alabama, and that the formula is thus unfair and should be struck down.
Rein did not dispute that the Voting Rights Act had helped change the South, but he argued that that change had occured -- which meant Congress erred in continuing to require preclearance from those states according to an old formula. The formula is an "inappropriate vehicle" to sort out the sovereignty of individual states, Rein said.
Roberts cited statistics noting that the state with the greatest racial disparity in voter registration is Massachusetts, a state not required to seek preclearance for voting changes. Justices Samuel Alito and Anthony Kennedy asked why the specific covered states should be singled out as opposed to covering the entire country.
The liberal justices and the Justice Department, represented by Verrilli, presented evidence that preventing voting changes in the South was still necessary in some cases and argued that Section 5 was the way to do it. Justice Elena Kagan noted that the covered states have a higher rate of non-automatic VRA challenges (under Section 2 of the law) than other states, suggesting Section 5 needed to remain in place there. Justice Stephen Breyer repeatedly returned to a metaphor about disease, saying the problem of minority vote suppression hadn't yet been cured but had evolved to take on different forms other than impediments to registration. As evidence that policymakers felt that inequalities still existed, in addition to the measure's perceived effectiveness, Breyer pointed to the near-unanimous 2006 reauthorization of the law. "Congress was saying, don't change horses in the middle of the stream," he said.
If Section 5 is struck down or the coverage formula is changed, the federal government and private actors would still be able to challenge states' changes to voting laws under the VRA's Section 2 provision, which also protects against discriminatory voting practices, but only after they are enacted. Verrilli argued that the sheer number of potentially discriminatory changes to voting procedures -- as local as changing a polling place location very close to an election -- and the difficulty of stopping such a change in time makes Section 2 an inadequate replacement for Section 5.
The tenor and content of the justices' questions, especially those by Roberts and Kennedy, suggested to some after the hearing that the Voting Rights Act would be in for a major change when the decision comes down later this year. But divining Court decisions from Court arguments is notoriously tricky. Many observers expected the Court to strike down elements of the VRA in 2009, only for the justices to uphold it in an 8-1 decision that outlined some of the questions they put forth today; Justice Clarence Thomas, who did not ask any questions Wednesday, was the only dissenting vote in the 2009 case. And in the most high-profile Supreme Court case in recent memory, the 2012 challenge to President Obama's signature health care reform law, many also assumed after oral arguments that the law would likely fall, only to be proven wrong later that year.
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