The constitutionality of a key part of the nation's Voting Rights Act appeared in serious trouble in the U.S. Supreme Court on Wednesday as the justices heard arguments over Congress' 2006 reauthorization of the act.
In Shelby County, Alabama v. Holder, the court is asked whether Congress exceeded its authority under the 15th and 14th Amendments when it re-authorized Section 5 under a formula that the challengers contend is outdated and intrusive on state sovereignty. Section 5 currently requires nine states, primarily in the South, and parts of seven others to have any changes in their voting practices pre-cleared by the U.S. Department of Justice or the federal district court in Washington, D.C. The formula in Section 4(b) determines which jurisdictions must submit to Section 5.
While a large crowd rallied in support of the act on the sidewalk in front of the Court, intense questioning ensued inside the courtroom.
Based on the justices' questions and comments, there seemed to be a clear ideological divide on the answer to Shelby County's question,with four justices on the conservative side of the bench voicing major misgivings about Section 5 and four on the liberal side defending the power of Congress to make decisions on where the Act should be targeted. Justice Clarence Thomas remained silent, although in a 2009 Voting Rights Act challenge, he wrote he would find Section 5 unconstitutional.
"This is a question of renewing a statute that we knowhas worked," said Justice Stephen Breyer to Shelby County's counsel, Bert Rein of Wiley Rein. He added that if there was an "old disease that had gotten a lot better, but was still there, wouldn't you want to keep the remedy going?"
The old disease at which the act was targeted—tools and devices of discrimination—was cured, responded Rein, but the formula for detecting states and localities engaged in new forms of voting discrimination has not been updated and is an inappropriate vehicle for making that determination.
Justice Samuel Alito Jr. asked Solicitor General Donald Verrilli Jr., "When [Congress] reauthorized the act in 2006, why wasn't it incumbent on Congress to make a new determination of coverage using a formula based on up-to-date statistics?"
Verrilli defended Congress' 15,000 page-record of findings that discrimination was most persistent in the covered jurisdictions, and that the Section 4(b) formula was justified under any test the Court would impose.
Justice Antonin Scalia noted that when Section 5 was adopted in 1965, there was double-digit opposition to it in the Senate and with each reauthorization, the number of opposing votes decreased until there was no Senate opposition in 2006.
"I think that's attributable to a phenomenon that has been called the perpetuation of racial entitlements," he told Verrilli. "Once you enact them, it's very hard to get out. I'm fairly confident this will be re-enacted in perpetuity" unless a court steps in to examine the justification. "The concern here is this is not the kind of question you can leave to Congress."
Verrilli said it would be "extraordinary" to look behind the judgment of Congress in "a sort of motive analysis." He added, "These are predictive judgments about human behavior and voting that Congress knows much about." And the Constitution, he said, expressly gives Congress the enforcement power in this area.