Central parts of an election law dating back to the civil rights struggles of the 1960s, the Voting Rights Act, appeared to be in jeopardy Wednesday after the Supreme Court heard oral arguments in a challenge to them.
NBC’s Pete Williams reported after the oral argument that key provisions of the 1965 law “are in big trouble. The question is how far will the Supreme Court go” in striking down parts of the law?
The justices were weighing an appeal from Shelby County, Ala., asking the court to find that Congress exceeded its power when it renewed the two key sections of the law in 2006. A decision is expected before the court ends its current term this coming June or July.
Under Section 5 of the law, nine states, mostly in the South, but also including Alaska and Arizona, as well as dozens of counties, townships, cities, and elected boards in other states, must get permission, or “preclearance,” from the Justice Department or a federal court in Washington for any change in voting procedures, no matter how small, that they seek to make.
The formula used to determine which states and other jurisdictions are covered by the preclearance requirement is set forth in section 4 of the law.
“It’s pretty safe to say that there at least five votes to strike down” either section 4 or section 5 of the Voting Rights Act, “either the coverage formula or preclearance totally,” Williams reported.
Williams added what seemed to concern a majority of the justices was “the fact that the law is too backward looking.”
Shelby County’s lawyer Bert Rein argued that Section 5 of the Voting Rights Act – which Congress renewed for another 25 years in 2006 – is unconstitutional because the formula used to determine which states are covered is outdated – based on voter turnout and registration data from 1972.
The blatant racial intimidation and discrimination in voting procedures that prevailed in states such as Alabama when the law was written in 1965 and renewed in 1970, 1975, and 1982, no longer exist, the county says.
Overshadowing Wednesday’s argument was the Supreme Court’s decision in a 2009 Texas case, Northwest Austin Municipal Utility District Number One vs. Holder. In that decision, the court expressed doubts about the continued need for Section 5, noting that “voter turnout and registration rates now approach parity” between whites and blacks in the states covered by section 5.
Solicitor General Donald Verrilli said the justices should defer to the judgment that Congress made in 2006 that the coverage formula was “rational and effective.” To that Justice Anthony Kennedy replied, “Well, the (1947) Marshall Plan was very good, too, the (1862) Morrill Act, the (1787) Northwest Ordinance, but times change.”
Kennedy suggested that the law had the effect of denying some states of their right to self-government -- in effect putting them “under the trusteeship of the United States Government.”
Related: Landmark civil rights law faces critical Supreme Court test
Addressing the question of why Congress had extended Section 5 in 2006 with no opposition at all in the Senate, Justice Antonin Scalia said it was “very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”
He said for most members of Congress there’s little to be gained by voting against continuation of the key sections of the law. “I am fairly confident it will be reenacted in perpetuity unless a court can say it does not comport with the Constitution.”
But the liberal justices were quick to defend the sections of the law which Shelby County is challenging.
The court’s newest member, Justice Elena Kagan, appointed by President Barack Obama in 2010, said Alabama still deserved to be singled out for coverage under section 5.
She said section 5 “seems to work pretty well” in targeting the places where there are the most successful lawsuits under a separate section of the Voting Rights Act, section 2.
That part of the law, which isn’t being challenged in the Shelby County case, bans all voting procedures that discriminate on the basis of race, color, or membership in a language minority group. Unlike Sections 4 and 5 of the law, Section 2 covers all 50 states.
“If Congress were to write a formula that looked to the number of successful Section 2 suits per million residents, Alabama would be the number one state on the list,” Kagan told Rein.
Kagan said that “under any formula that Congress could devise” Alabama would still be a targeted state.
Another liberal justice who defended section 5, Justice Stephen Breyer compared racially discriminatory voting procedures to a disease. “It's an old disease, it's gotten a lot better, a lot better, but it's still there,” he said. “So if you had a remedy that really helped it work, but it (discrimination) wasn't totally over, wouldn't you keep that remedy?”
But Rein argued that the high court ought to “remove the stigma” of preclearance from the states “and the unequal application based on data that has no better history than 1972.”
Justice Samuel Alito suggested to Verrilli that “maybe the whole country should be covered” by section 5 or “maybe certain parts of the country should be covered based on a formula that is grounded in up-to-date statistics.”
When Verrilli defended the section 5 of the law, Chief Justice John Roberts asked him, “Do you know which state has the worst ratio of white voter turnout to African American voter turnout?”
Verrilli said he did not, to which Roberts replied: “Massachusetts. Do you know what has the best, where African American turnout actually exceeds white turnout? Mississippi.”
Roberts then asked Verrilli which state has the greatest disparity in registration between whites and African Americans, and again Verrilli did not know.
Again Roberts answered Massachusetts. He added that in Mississippi, “the African American registration rate is higher than the white registration rate.”
Verrilli argued Wednesday that “changes in the polling places at the last minute before an election can be a source of great mischief. Closing polling places, moving them to inconvenient locations, et cetera.” He explained that Section 5 requires “those kinds of changes to be pre-cleared and on a 60-day calendar which effectively prevents that kind of mischief. And there is no way in the world you could use Section 2 to effectively police that kind of mischief.”
He argued in the Justice Department brief that Section 2 isn’t an adequate barrier against discrimination in voting partly because it places the burden of proof on plaintiffs who challenge allegedly discriminatory procedures, while Section 5 places the burden of proof on the states or counties to show that their procedures aren’t discriminatory.