April 29th, 2009
03:02 PM ET
5 years ago

High court justices argue over voting rights enforcement

The Obama administration faced tough questions Wednesday from conservative justices at the Supreme Court.
The Obama administration faced tough questions Wednesday from conservative justices at the Supreme Court.

WASHINGTON (CNN) - The Obama administration faced tough questions Wednesday from conservative justices at the Supreme Court asking whether a
powerful enforcement tool in the landmark Voting Rights Act is still needed to fight discrimination.

In one of the biggest case this term, a majority of the bench appeared poised to strike down - at least in part - the "preclearance" provision of the 1965 law that provides continuing federal control over election practices in 16 states identified as needing oversight, based on past discrimination against minority voters.

Other states are not covered by the provision even if they, too, discriminate against minority voters. Other enforcement tools, however, may be available.
At issue is whether Congress in 2006 properly extended the law - whose Section 5 mandates that the covered states get advance approval of changes in how their elections are conducted - or whether the country has made enough progress on racial equality to make continued federal oversight essentially unnecessary. A ruling is expected in two months.

The arguments divided along familiar ideological lines. "In the real world," predicted Justice David Souter, "if Section 5 safeguard is taken away, the push-back is going to start. It has never
stopped." "Congress can impose this disparate treatment" against some states but not others, said Chief Justice John Roberts. "At some point it begins to look like this is going to go on forever."

Several dozen members of the NAACP rallied outside the court, and members of Congress attended the 70-minute oral arguments, including the Senate Judiciary Committee chairman, Sen. Patrick Leahy, and longtime civil rights activist Rep. John Lewis.

The case involves a small homeowners association board outside Austin, Texas. Residents of the Canyon Creek planned community in 2003 sought to move its polling place to an elementary school that is the neighborhood's polling place for all other elections. Such a move required federal approval under Section 5.

Backed by a group of conservative activists, Canyon Creek launched a direct challenge to the law's "preclearance" provision, arguing it should not be enforced in areas where it can be argued racial discrimination no longer exists.

Civil rights groups say Section 5 has proven an important tool to protect minority voters from local governments that could set unfair or unconstitutional barriers to the polls. If it is ruled unconstitutional, they warned the justices, the very power and effect of the entire Voting Rights Act would crumble.

The Bush administration had led the legal fight defending the law, but the case was argued Wednesday by a Justice Department attorney named by President Barack Obama.

None of the justices openly suggested that preclearance should be tossed out entirely, but many expressed concern that it is unfair that some states are still covered under Section 5, but others are not.

"Democracy was in a shambles," when the Voting Rights act was passed 44 years ago, said Justice Anthony Kennedy. "That's not true anymore, and to say states are willing to yield their sovereign responsibilities to govern themselves doesn't work."

The 72-year-old justice could once again prove the swing vote in the divided case, and he hammered his point repeatedly on the federalism question.

"Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio," he said." This is a great disparity in treatment, and the government of the United States is saying our states must be treated differently."

After the session, several civil rights activists expressed concern over Kennedy's remarks.

Roberts and Justice Antonin Scalia both pointed out that only 15 jurisdictions in Virginia among all the covered states have so far managed to get themselves exempted from Section 5. "It's obvious quite impractical for anybody to bail out," said Scalia, and Roberts noted Section 5 was designed all along as a temporary measure.

On the other side, Justice Ruth Bader Ginsburg was the most vigorous defender of preserving congressional authority over voting rights.

"Congress fastened on that issue and it was referred to as second generation discrimination," she said. "You start with blatant overt discrimination, and then in time people recognize that won't go anymore, so the discrimination becomes more subtle, less easy to smoke out. But it doesn't go
from blatant over discrimination to everything is equal."

Souter also acknowledged progress over the years, but told Canyon Creek's lawyer the overwhelming record shows ongoing discrimination. "I don't understand with a record like that how you can maintain that things have radically changed," he said.

Debo Adegbile, arguing for the NAACP Legal Defense Fund, told the justices a pattern of intentional discrimination still requires tough tools to fight it.

"If you take away the prophylactic, the discrimination will return in a way we don't need to revisit," he said. "The history has been that voting discrimination manifests itself through repetitive efforts."

While legal briefs on both sides mentioned the impact of the nation electing its first African-American president as justification both for and against Section's 5 validity, no mention of that point was made in court arguments.

The justices have the option of upholding Section 5, throwing it out in its entirety, or seeking a more narrow result that would make the Texas district eligible for bailout, without resolving the larger constitutional questions of when race-based solutions can be used to remedy past and present discrimination. Such a narrow ruling would uphold the law, for now.

The case is Northwest Austin Municipal Utility District Number One v. Holder (08-322).


Filed under: NAACP • Obama administration
soundoff (22 Responses)
  1. Sniffit

    You know what? As dangerous as all of this seems, and as much as we might engage in conspiracy-theory style argument about places like FL or LA...do it. Strike it down. THAT will be the test. I have no doubt that certain places in this country will prove how right most of us are to assume that they are bastions of racism.

    April 29, 2009 03:06 pm at 3:06 pm |
  2. Some Guy

    I'm just waiting for "some republican guy" to start spouting off about ACORN again. You just know the hated acronym will make an appearance in this thread. Have a nice day.

    April 29, 2009 03:09 pm at 3:09 pm |
  3. MSB

    I'm a white, upper middle class, female that lives in the northern suburbs of Atlanta, Georgia and every election I hear talk about discrimination. Until we get this right (and IMO, we haven't gotten it right) this law needs to stay in effect. As much as I hate to admit this about my home state that I love, there are still a lot of racist, backward people that live here. And some of them are politicians.

    April 29, 2009 03:11 pm at 3:11 pm |
  4. RRR

    Ahhh.......in advance of the census, the Republican judges want to remove barriers to voter supression in Republican states. You KNOW this ruling will not affect Red states.

    ANYTHING that Scalia and Roberts are pushing for is obviously biased to the far right. They know that as recently as the last election there was plenty of voter discrimination.

    Why don't they ask the MINORITIES if they still feel they are being discriminated against in election practices?!?!?!!? Does the Supreme Court represent us the citizens, or the political leaders of their party???

    April 29, 2009 03:12 pm at 3:12 pm |
  5. frank , pennsylvania

    All hands need to be on the deck to control the surge in moral decadence in our society ! Those who advocate same sex marriage and host of other immoral issues constitute a tiny fraction of the population and should not be allowed to legislate for us! There is a need for a national referendum on marriage and abortion so that we can make necessary constitutional amendments to protect our society from moral decadence.

    April 29, 2009 03:12 pm at 3:12 pm |
  6. Some Guy

    Remember republicans, your stock responses must include the word ACORN. Just remindin' ya. Have a nice day.

    April 29, 2009 03:14 pm at 3:14 pm |
  7. Todd (not the Alaska Separatist)

    When backwards Red states stop suppressing voters, then Section 5 can go. Until then, it has to stay. The US Nation elected the first black president, and without the help of racist rednecks in Red states. So the point of this arguments is?

    April 29, 2009 03:19 pm at 3:19 pm |
  8. arithmetic is liberal

    Bullcrap.

    Sorry the country has naturally moved left as more and more minorities are able to vote, but tough cookie, right wing! Maybe if you spent more time appealing to those people than appealing to the people who hate them, you'd have a political future in this country.

    This is nothing more than an attempt to send this country back to the right wing. A shameless ploy by court justices who saw how the country changed after civil rights and didn't like what they saw.

    You realize that the challenge is coming from a white suburb whose residents want to move the election station to a "planned" community. Nice euphemistic langage, there. Planned = gated = no n-words allowed.

    Remember, that just this year and not to far away from this case's location is a town where policemen were stopping interracial or minority couples to extort bribes.

    Are we really going to turnback the clock on civil rights right after we elected a black president? Is that why conservatives are so scared?

    And now we're going to have every ludite in this hemisphere spouting off about a voter registration group unrelated to this in any way. The first post by someone mentioning the capital A-word is your indication that said person has no clue what they're talking about.

    April 29, 2009 03:24 pm at 3:24 pm |
  9. Dutch/Bad Newz, VA

    I'm a non violent felon whose voting rights have been taken away. I pay my taxes, therefore I should be allowed to vote.

    April 29, 2009 03:24 pm at 3:24 pm |
  10. Gene from Georgia

    Of course Scalia et al knew about the crimes Jeb Bush committed in 2000, disenfranchising thousands of minority voters to deliver Florida, when Scalia et al elected W and told the majority of American voters to "Get over it." So much for what those sanctimonious traitors think of the Voting Rights Act.

    April 29, 2009 03:27 pm at 3:27 pm |
  11. Ennis, LA

    The problem today is illegal registration and voting by groups like
    ACORN. This is true in every state.

    April 29, 2009 03:30 pm at 3:30 pm |
  12. Voting is a RIGHT

    Some of you may think this is a stupid law BUT take this scenario into account.

    Several years ago, the polling place for my district was changed from a local PUBLIC facility in downtown, to a facility just on the outskirts of the city. Not much notice was given and some chaos ensued. One of the big deals was transportation. How were the city folks supposed to take the bus to this new polling place – if they were even told about the change?!

    Oh...did I mention this was PRIVATELY owned (albeit open to the public) and pretty upscale. I believe it was intimidating and some would say deliberate.

    April 29, 2009 03:34 pm at 3:34 pm |
  13. Enlightened Voter

    I can't wait til President Obama has a chance to put in some good liberal justices.

    April 29, 2009 03:38 pm at 3:38 pm |
  14. Mia and Mike

    It's still needed to ensure the voting rights of all citizens. There were several allegations of voting violations among young voters and first time voters this past election. There's also huge influx of Spanish speaking and other non-English speaking Americans (although I agree that they all must learn the nation's language)

    April 29, 2009 03:39 pm at 3:39 pm |
  15. Mississippi Mike

    Wasn't the racial grievance lobby supposed to go away after we elected Obama? Why is this still an issue, we elected a Black guy with a muslim heritage to the highest office in the country. 1965 discrimination laws need to be struck down so we can get on with our lives.

    April 29, 2009 03:41 pm at 3:41 pm |
  16. Annette

    Contrary to some of the justices, and the fact that we have our first African American President. We need to continue to enforce the Voting Rights Act. Why, because their are States that still need policing when it comes to voting rights. We have not arrive, there is much work to do in many of these States regarding voting rights. We can't afford to turn back, regarding this important law. Keep the voting rights act alive!

    April 29, 2009 04:02 pm at 4:02 pm |
  17. jm for sc

    If oversight of these laws were no longer necessary, we would not be have this conversation. There will always be a need to have laws against discrimination because if it were not for the law, opportunities would be out of reach for many qualified people.

    The election of President Obama has nothing to do with other people being discriminated against. In reality, President Obama in not the only black man that have the qualifications to be president; there are and has always been many others.

    April 29, 2009 04:44 pm at 4:44 pm |
  18. Peter E

    I say let states have their own rights and enforcements. For their own elections. But if it's a federal election, and YOUR elected senator interferes with MY state in the Senate, then we do need federal oversight of elections. You can't just have your own local laws and elections determine somebody else's fate without them having any say in it. For FEDERAL elections we do need equal rights, equal enforcement, equal standards!

    April 29, 2009 05:02 pm at 5:02 pm |
  19. Jackie in Dallas

    I'm very familiar with this situation, and once lived not far from the area in question in Austin. I have a suggestion for the Supreme Court - opt for the temporary bailout, but send a notice to Congress that a significant rewrite of the Voting Rights Act is indicated. We need a national standard for elections; the election in 2000, and the current fiasco in Minnesota prove it. We need to protect the voting rights of all legal American voters, reduce the politicizing of the registration and the methods of voting, and guarantee that the rights of all minorities are upheld. That is best done by unambiguous language in a revised Voting Rights Act.

    Of course, I also dream of reducing the gerrymandering (in particular, in Texas) that prevents appropriate representation by dividing segments of voting populations into different districts to dilute their votes, too. That dream will have to wait, I guess.

    April 29, 2009 05:03 pm at 5:03 pm |
  20. Glennis

    It's time to get rid ot if. It's absolutely absurd that it only applies to some states when others are not monitored. It's typical government BS.

    April 29, 2009 05:15 pm at 5:15 pm |
  21. Neil

    The Voting Right s Act needs to be rewritten. Oversight needs to be maintained but there has to be a national standard applicable to all states. We haven't made near the progress we like to think we've made. Take a look around. Things aren't getting better. In some places it's getting worse.

    April 29, 2009 05:20 pm at 5:20 pm |
  22. Luke Brown

    The Republicans are pushing this because they want to control reapportionment like they did ten years ago. This lawsuit is just a power play.

    Look at South Carolina, the GOP controlled Legislature is currently debating a number of so-called "reforms" that would undercut the participation of African Americans in the elections.

    Don't forget that the Republicans still control the judicial branch of government and their people on the Supreme Court will invent a rationale to help their people in the states affected.

    April 29, 2009 05:27 pm at 5:27 pm |