Conservative Justices Voice Skepticism About Key Voting Rights Act Provision

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under the 15th and 14th Amendments when it re-authorized Section 5 under a formula that the challengers contend is outdated and intrusive on state sovereignty.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.

Comments

[Mel Reed]

This is a beautiful example of the wisdom of the Conservative mentality. With little data, with no hearing from respected members of the African American community, a SUPREME COURT JUSTICES have concluded that Section 5 is no longer needed. Then again, there has always been white people who have not been able to comprehend what it meant to be black 50 years ago. And one Justice actually stated that giving an African American citizen the right to vote is an entitlement. Does he mean it is an entitlement to live in the realm of the United States of America as well?

[Rick]

Lawrence O'Donnell from "Tha Last Word" said the most important reason to vote for a president is the SCOTUS...And i agree, but i take it a step further in that ALL judicial nominees are important (Circuit/District Courts to)..

Antonin Scalia and Clarence Thomas are the main reasons i vote DEMOCRATIC in every presidental elections..

Looks voting rights will be struck down 5-4, when this ruling comes in late June..What a tragedy...

[mike]

The power of ALEC, the Koch family, and other ultra conservative Republicans who know their points of view won't get them elected, so let's suppress the voters, let them stand in line for hours, and by the way, let's change how states divy up their electoral college votes.
Since when did the Supreme Court have the power to "enact" legislation like Citizens United and justify states discriminating agains non-white voters?
Anyone else shocked that Justice Thomas remained silent?

[bob]

Yes, why would anyone want to perpetuate the "racial entitlement" to have a mechanism in place to prevent enactment of discriminatory voting laws in jurisdictions with a history of discrimination?

And really, what are the kinds of questions that you can leave to a democratically elected Congress, including a unanimous Senate? If anything, why not have higher scrutiny for more popular laws?

This is why we need televised Supreme Court hearings.

[Torii Gate]

Talk about judicial activism. I'm astounded at the way Scalia just makes stuff up to support his point of view. When he likes what Congress has done, he says the Court should defer to Congress. When he doesn't like what Congress has done, he spouts some nonsense like the "perpetuation of racial entitlements" and says the issue is too important to be left to Congress.

[Lou]

As I read this story and think back to voter suppression efforts over the past few elections, as well as to changes in law over the past decade or more, it seems apparent that democracy in the United States is dying. It is sad to see this happening.

[Ken Chestek]

"The concern here is this is not the kind of question you can leave to Congress." ---quoth the "originalist" Justice Scalia.

Has he not heard of the doctrine of separation of powers? The fact that the Senate *unanimously* reauthorized the bill in 2006 is now evidence that the Senate cannot be trusted to vote the right way, justifying the Supreme Court in finding the law unconstitutional??

Just completely unbelievable. Shocking.

[Tony Monte]

Restricting voting rights is about as un-American and un-democratic as you can get, yet we have many States that do just that. Like it or not, it is the Republican Party and conservative philosophy to do that. I am 69 years old, have voted many times Republican and many times Democratic in my life, but Republicans of the Eisenhower, Keating, Dirksen type used to respect people and human rights. I'm glad I'm old enough to not be around in the future when the current Republican philosophy will strip parts of our citizenry of their right to vote just to enable Republicans to win more elections. It is a national disgrace. Wake up America, what you are seeing is an effort to reduce our democratic system.