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Conservative Justices Voice Skepticism on Voting Law Voting Rights Law Draws Skepticism From Justices
(about 5 hours later)
WASHINGTON — A central provision of the Voting Rights Act of 1965 may be in peril, judging from tough questioning on Wednesday from the Supreme Court’s more conservative members.WASHINGTON — A central provision of the Voting Rights Act of 1965 may be in peril, judging from tough questioning on Wednesday from the Supreme Court’s more conservative members.
Justice Antonin Scalia called the provision, which requires nine states, mostly in the South, to get federal permission before changing voting procedures, a “perpetuation of racial entitlement.” Chief Justice John G. Roberts Jr. asked a skeptical question about whether people in the South are more racist than those in the North. Justice Anthony M. Kennedy asked how much longer Alabama must live “under the trusteeship of the United States government.” If the court overturns the provision, nine states, mostly in the South, would become free to change voting procedures without first getting permission from federal officials.
The court’s more liberal members, citing data and history, said Congress remained entitled to make the judgment that the provision was still needed in the covered jurisdictions. In a vivid argument in which the lawyers and justices drew varying lessons from the legacies of slavery, the Civil War and the civil rights movement, the court’s conservative wing suggested that the modern South had outgrown its troubled past and that the legal burdens on the nine states were no longer justified.
Chief Justice John G. Roberts Jr. asked skeptically whether “the citizens in the South are more racist than citizens in the North.” Justice Anthony M. Kennedy, whose vote is probably crucial, asked whether Alabama today is an “independent sovereign” or whether it must live “under the trusteeship of the United States government.”
Justice Antonin Scalia said the law, once a civil rights landmark, now amounted to a “perpetuation of racial entitlement.”
That remark created the sharpest exchange of the morning, with Justice Sonia Sotomayor on the other end. “Do you think that the right to vote is a racial entitlement?” she later asked a lawyer challenging the law, with an edge in her voice that left little doubt she was responding to Justice Scalia’s statement. “Do you think that racial discrimination in voting has ended, that there is none anywhere?”
The outcome of the case will most likely remain in doubt until the end of the court’s current term, in June. Many legal observers predicted that the justices would overturn part of the voting law in 2009, when the court had the same conservative-leaning majority, only to be proven wrong.
One important change, however, is that Chief Justice Roberts suggested in the 2009 ruling that Congress update its formula to determine which parts of the country should remain subject to the law. Congress has not done so.
The question at the heart of Wednesday’s argument was whether Congress, in reauthorizing the provision for 25 years in 2006, was entitled to use a formula based on historic practices and voting data from elections held decades ago.
Should the court strike down the law’s central provision, it would be easier for lawmakers in the nine states to enact the kind of laws Republicans in several states have recently advocated, including tighter identification standards. It would also give those states more flexibility to move polling places and redraw legislative districts.
The four members of the court’s liberal wing, citing data and history, argued that Congress remained entitled to make the judgment that the provision was still needed in the covered jurisdictions. The law passed the Senate unanimously and House overwhelmingly, by a vote of 390 to 33 in 2006.
“It’s an old disease,” Justice Stephen G. Breyer said of efforts to thwart minority voting. “It’s gotten a lot better. A lot better. But it’s still there.”“It’s an old disease,” Justice Stephen G. Breyer said of efforts to thwart minority voting. “It’s gotten a lot better. A lot better. But it’s still there.”
Four of the nine-member court’s five more conservative members asked largely skeptical questions about the law. The fifth, Justice Clarence Thomas, did not ask a question, as is typical. Justice Kennedy said that history taught a different lesson, referring to the reconstruction of Europe after World War II. “The Marshall Plan was very good, too,” he said. “But times change.”
The law, a landmark achievement of the civil rights era was challenged by Shelby County, Ala., which said that the requirement had outlived its usefulness and that it imposed an unwarranted badge of shame on the affected jurisdictions. Justice Breyer looked to a different conflict.
The county’s lawyer, Bert W. Rein, said that the “problem to which the Voting Rights Act was addressed is solved.” “What do you think the Civil War was about?” he asked. “Of course it was aimed at treating some states differently than others.” He also said that the nation lived through 200 years of slavery and 80 years of racial segregation.
In reauthorizing the provision for 25 years in 2006, Congress did nothing to change the criteria for inclusion under the provision, relying instead on a formula based on historic practices and voting data from elections held decades ago. Much of the argument concerned that coverage formula. Debo P. Adegbile, a lawyer with the NAACP Legal Defense and Educational Fund, which joined the government in defending the law, echoed that point. “This statute is in part about our march through history to keep promises that our Constitution says for too long were unmet,” he said.
Should the court strike down the coverage formula, Congress would be free to take a fresh look at what jurisdictions should be covered. But making distinctions among the states based on new criteria may not be politically feasible. The law was challenged by Shelby County, Ala., which said that its federal preclearance requirement, in Section 5 of the law, had outlived its usefulness and that it imposed an unwarranted badge of shame on the affected jurisdictions.
Four years ago, the court signaled that the law may need revision to withstand constitutional scrutiny, hinting that Congress might want to take a fresh look at the places subject to the preclearance provision, called Section 5. Congress failed to act. The county’s lawyer, Bert W. Rein, said that “the problem to which the Voting Rights Act was addressed is solved.”
Solicitor General Donald B. Verrilli Jr. said Congress had made a considered and cautious decision in extending the act. In any event, he added, the unusual requirement that a sovereign state’s law did not count until blessed by the federal government required substantial justification. The law, he said, was “an unusual remedy, never before and never after invoked by the Congress, putting states into a prior restraint in the exercise of their core sovereign functions.”
Debo P. Adegbile, a lawyer with the NAACP Legal Defense and Educational Fund, said that “our right to vote is what the United States Constitution is about.” It was common ground among the advocates and justices that the act was important and necessary when it was first enacted.
Section 5, originally set to expire five years after the law was enacted, was upheld by the Supreme Court in 1966 as a rational response to the often flagrantly lawless conduct of some Southern officials then. “There is no question that the Voting Rights Act has done enormous good,” Justice Samuel A. Alito Jr. said. “It’s one of the most successful statutes that Congress passed in the 20th century and one could probably go farther than that.”
Congress repeatedly extended the requirement: for 5 years in 1970, 7 years in 1975, and 25 years in 1982. Congress renewed the act in 2006 after holding extensive hearings on the persistence of racial discrimination at the polls, again extending the preclearance requirement for 25 years. There was agreement, too, that the nation and the South in particular have taken great strides toward equality.
But it made no changes to the list of jurisdictions covered by Section 5, relying instead on a formula based on historical practices and voting data from elections held decades ago. It applies to nine states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia — and to scores of counties and municipalities in other states. “There isn’t anybody on any side of this issue who doesn’t admit that huge progress has been made,” Justice Ruth Bader Ginsburg said.
Last May, a divided three-judge panel of the United States Court of Appeals for the District of Columbia upheld the law. Judge David S. Tatel, writing for the majority, acknowledged that “the extraordinary federalism costs imposed by Section 5 raise substantial constitutional concerns,” and he added that the record compiled by Congress to justify the law’s renewal was “by no means unambiguous.” Most of the argument instead concerned the formula for determining which states the law covered.
“But Congress drew reasonable conclusions from the extensive evidence it gathered,” he went on. The constitutional amendments ratified after the Civil War, he said, “entrust Congress with ensuring that the right to vote — surely among the most important guarantees of political liberty in the Constitution — is not abridged on account of race.” Chief Justice Roberts reeled off statistics to suggest that the coverage formula no longer made sense. Massachusetts, which is not covered, “has the worst ratio of white voter turnout to African-American voter turnout,” he said. Mississippi, which is covered, has the best ratio, he said, with African-American turnout exceeding that of whites.
“In this context,” he wrote, “we owe much deference to the considered judgment of the people’s elected representatives.” The more liberal justices responded that the nine states were responsible for a sharply disproportionate share of federal voting-rights violations, adding that Alabama was in a poor position to challenge the choices Congress made in deciding which parts of the country to cover.
The dissenting member of the panel, Judge Stephen F. Williams, surveyed recent evidence concerning registration and turnout, the election of black officials, the use of federal election observers and suits under another part of the law. Some of that evidence, he said, “suggests that the coverage formula completely lacks any rational connection to current levels of voter discrimination,” while other evidence indicates that the formula, “though not completely perverse, is a remarkably bad fit with Congress’s concerns.” “Under any formula that Congress could devise,” Justice Elena Kagan said, citing data about voting rights suits, “it would capture Alabama.”
“Given the drastic remedy imposed on covered jurisdictions by Section 5,” he wrote, “I do not believe that such equivocal evidence can sustain the scheme.” The point seemed to interest Justice Kennedy, in one of his few questions skeptical of the law’s challenger. “If you could be covered under most suggested formulas for this kind of statute,” he asked Mr. Rein, “why are you injured by this one?”
The Supreme Court last considered the constitutionality of the 2006 extension of the law in a 2009 decision, Northwest Austin Municipal Utility District Number One v. Holder. But it avoided answering the central question and ruled instead on a narrow statutory ground, saying the utility district in Austin, Texas, that had challenged the constitutionality of the law might be eligible to “bail out” from being covered by it. Still, Chief Justice Roberts, writing for the majority, was skeptical about the continued need for Section 5. Should the court strike down the coverage formula when it decides the case, Shelby County v. Holder, No. 12-96, Congress would be free to take a fresh look at what jurisdictions should be covered. But Congress seems unlikely to be able to agree on a new set of criteria, given the current partisan divide, meaning the part of the law requiring federal pre-approval of election changes would effectively disappear.
“The historic accomplishments of the Voting Rights Act are undeniable,” he wrote. But “things have changed in the South.” Justice Kennedy asked whether it would be proper to make the entire country subject to the provision. Solicitor General Donald B. Verrilli Jr. said no, at least based on the information compiled by Congress in connection with the 2006 extension of the law.
He said: “Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” Justice Kennedy seemed to view the response as a concession. “And that,” he said, “is because that there is a federalism interest in each state being responsible to ensure that it has a political system that acts in a democratic and a civil and a decent and a proper and a constitutional way.”
“The statute’s coverage formula is based on data that is now more than 35 years old,” he added, “and there is considerable evidence that it fails to account for current political conditions.” Congress has repeatedly extended the preclearance requirement: for 5 years in 1970, 7 years in 1975, and for 25 years in both 1982 and 2006.
But the chief justice said the court should avoid deciding hard constitutional questions when it could. “Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today,” he wrote. But it made no changes after 1975 to the list of jurisdictions covered by Section 5, relying instead on a formula based on historical practices and voting data from elections held decades ago.
Wednesday’s argument in Shelby County v. Holder, No. 12-96, indicated that the justices are now prepared to provide an answer to the question they left open four years ago. It applies to nine states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia — and to scores of counties and municipalities in other states, including the boroughs of Brooklyn, Manhattan and the Bronx.