Today's Supreme Court
February 27th, 2013
12:31 PM ET
2 years ago

Justices offer split views on Voting Rights Act enforcement

Washington (CNN) - A predictably divided Supreme Court appeared ready to strike down – at least in part – the key enforcement provision of the landmark Voting Rights Act of 1965, with many conservative justices on Wednesday suggesting it was a constitutionally unnecessary vestige of the civil rights era.

Known as Section 5, it gives the federal government open-ended oversight of states and localities mostly in the South with a history of voter discrimination.

Any changes in voting laws and procedures in all or parts of 16 covered states must be "pre-cleared" with Washington. That could include something as simple as moving a polling place temporarily across the street.

The provision was reauthorized by Congress in 2006 for another 25 years and officials in Shelby County, Alabama, subsequently filed suit, saying the monitoring was overly burdensome and unwarranted.

In a tense 80 minutes of oral arguments, Justice Sonia Sotomayor asked why the court would rule "in favor of the county that is the epitome" of what caused the law to be passed in the first place.

Her three reliably liberal colleagues appeared to support continued use of the coverage formula run by the federal Justice Department.

But Justice Samuel Alito wondered why some states were subject to oversight and not others.

"Why shouldn't it apply everywhere in the country," he asked. The other four more conservative justices had tough questions for the Obama administration's positions.

This case will be one of the biggest the justices tackle this term, offering a social, political, and legal barometer on the progress of civil rights in the United States and the level of national vigilance still needed to ensure minorities have equal access to the election process.

A ruling in this appeal is expected by June.

Justice Antonin Scalia produced gasps in the courtroom when he reiterated concerns by some observers that reauthorization of the voting rights act by lawmakers seven years ago was due in part for political expediency.

"I think it is attributable, 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.

"I don't think there is anything to be gained by any senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless a court can say it does not comport with the Constitution," he said.

Sotomayor later asked the attorney for Shelby County whether he endorsed Scalia's comments.

"Do you think that the right to vote is a racial entitlement in Section 5?" said Sotomayor.
Attorney Bert Rein acknowledged that in 1965, at least, "it was intended to protect those who had been discriminated against."

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

But opponents of the provision counter it should not be enforced in areas where it can be argued racial discrimination no longer exists.

The appeal presents the court and its shaky conservative majority with two of the most hotly debated issues in politics as well as constitutional law - race and federalism.

It will be a major test of Washington's authority, and the extent to which the federal government may consider vestiges of voting discrimination that may still linger, potentially keeping some minority voters disenfranchised.

The Voting Rights Act was a monumental political achievement during the Civil Rights era. It banned such things as poll taxes and literacy tests that had long suppressed black voter turnout. States like California and Texas also have a history of discrimination against Hispanic voters.

The justices used competing statistics in Wednesday's public session to make their points.

Justice Elena Kagan pointed out Alabama was about a quarter African-American, but has no black statewide elected officials.

"If Congress were to write a formula that looked to the number of successful Section 2 [VRA] suits per million residents, Alabama would be the Number One state on the list," she said.

But Chief Justice John Roberts told the government lawyer: "Do you know which state has the worst ratio of white voter turnout to African-American voter turnout? Massachusetts. Do you know what has the best, where African-American turnout actually exceeds white turnout? Mississippi."

He cited similar numbers for voter registration. Roberts later asked Solicitor General Donald Verrilli: "Is it the government's submission that the citizens in the South are more racist than citizens in the North?"

Verrilli replied simply, "It is not."

Kennedy raised another area of concern, whether state sovereignty was being undermined by what critics of Section 5 call onerous federal oversight.

"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," he said. "But if Alabama wants to have monuments to the heroes of the Civil Rights Movement, if it wants to acknowledge the wrongs of its past, is it better off doing that if it's an own independent sovereign than if it's under the trusteeship of the United States government?"

The Obama administration points out that states have gotten out of Section 5. In recent years, 31 cities and counties and Virginia successfully petitioned to be exempt from the pre-clearance requirements, though the rest of the state remains under federal oversight.

Shelby County has not made such a request and opposes Section 5 on its face. It is 11 percent African-American, compared with 28 percent statewide.

The high court now may new be prepared to do what it hinted at in a separate Section 5 challenge three years ago.

Roberts authored that 2009 high court ruling, suggesting its days were numbered.

He said the pre-clearance provision raised "serious constitutional questions," and added it "represents an intrusion into areas of state and local responsibility that is unfamiliar to our federal system."

"Things have changed in the South. Voter turnout and registration rates now approach parity," said Roberts, echoing the views Shelby County now makes in its appeal. "Past success alone, however is not adequate justification to retain the pre-clearance requirements."

Until now, the court has avoided the key question over the law's constitutionality.

Some conservative groups have argued that "ancient formulas" are being applied today, not to erase discrimination, but to benefit a particular political party. Some liberal activists counter Section 5 and federal oversight are being demonized by many on the right for purely partisan gain, and to divide Americans again over race.

The case is Shelby County v. Holder (12-96).


Filed under: Supreme Court
soundoff (16 Responses)
  1. Sniffit

    "Why shouldn't it apply everywhere in the country,"

    IT. SHOULD. GOPers/Teatrolls in states not covered...like MI, PA and OH...all proved that they are not only willing, but INTEND, to suppress and dilute minority vote WHEREVER they can.

    February 27, 2013 12:42 pm at 12:42 pm |
  2. ghostriter

    Alito must not be all there. It doesn't include all states because all states were attempting in broad daylight to restrict the voting rights of American citizens. The law does allow for additional states/districts to be added and subtract, but to be added takes an act of congress, I believe.

    Of course, if the changes are above board, then there is nothing to worry about....right?

    February 27, 2013 12:44 pm at 12:44 pm |
  3. Sniffit

    "the level of national vigilance still needed to ensure minorities have equal access to the election process."

    Really? CNN has the audacity to say this after the paucity of CNN's coverage...and the entire MSM's coverage...of all the attempts the GOP/Teatrolls made over the past few years to suppress and dilute minority, elderly and youth voting and electoral influence and participation?

    February 27, 2013 12:45 pm at 12:45 pm |
  4. lolo

    They want to change voting laws to keep people from voting so that the GOP can win, but not gun laws to keep people from being murdered with assault weapons. This country is going to HE!!. No mattter what your race is you are going too.

    February 27, 2013 12:47 pm at 12:47 pm |
  5. sonny chapman

    Nobody would EVER think of trying to Suppress the Vote of certain people in order to gain a political advantage. We don't need this kind of law TODAY in America. Repubs., those valiant patriots(just ask them) , believe in making voting by EVERYONE as convenient as possible.

    February 27, 2013 12:48 pm at 12:48 pm |
  6. rs

    As long as the GOP keeps trying to deter legitimate voters with ID cards, closed polling places, reduced voting days and their other trickery, we need a strong, enforce Voting Rights Act in place.

    In my home state of Arizona, it took a week to count all the ballots- well after the election was declared. Thousands of mail-in ballots are allegeged to have gone uncounted or were disqualified from Hispanic Voters. Arizona needs to be held accountable- just as it was in 1967.

    February 27, 2013 12:51 pm at 12:51 pm |
  7. Sniffit

    "They want to change voting laws to keep people from voting so that the GOP can win, but not gun laws to keep people from being murdered with assault weapons. "

    Have you checked the racial breakdown of the victims? Do so and then come back and tell me why the GOP sees no problem with all the gun violence.

    February 27, 2013 12:54 pm at 12:54 pm |
  8. Rudy NYC

    from the article:

    Any changes in voting laws and procedures in all or parts of 16 covered states must be "pre-cleared" with Washington. That could include something as simple as moving a polling place temporarily across the street.
    ------------------------
    It could also include something as simple as moving a polling place across the street to a site that is too small to accommodate the volume of people in the expected turnout.

    Besides, there is not such thing as "temporarily" moving a polling place. Seeing how a polling place is temporary in and of itself, any so called "temporary" move would for all intents and purposes be a permanent move.

    February 27, 2013 01:01 pm at 1:01 pm |
  9. What's next

    Pretending that we're all on equal footing only makes matters worse. As long as those in power continue to practice ethnocentrism, we'll ever need legal redress such as section 5. Without this law the justice department could not have intervened in the voter suppression tactics that took place in Florida, Massachusetts, Ohio, etc. during the 2012 election. To those on the receiving end of these practices, it must look (and feel) a lot like 1965!

    February 27, 2013 01:01 pm at 1:01 pm |
  10. Ferret out the BS

    During the last Presidential election there were instances of voting irregularities which would indicate that the law still needs to be in place. We still haven't moved beyond trying to keep voters from voting.

    February 27, 2013 01:14 pm at 1:14 pm |
  11. Punctus

    Let's see..... they discriminated for 100 years. When they demonstrate that they haven't discriminated for 100 years then we can talk about eliminating the law.

    February 27, 2013 01:20 pm at 1:20 pm |
  12. S.B. Stein E.B. NJ

    Most places don't have a history of discrimination and preventing people from voting. This is why Alito (and Thomas) shouldn't be on the bench.

    February 27, 2013 01:23 pm at 1:23 pm |
  13. Michael A. (Wake Forest, NC)

    If this attack on the Voting Rights Act (Section 5 in particular) is struck down... people had better get it together. First they stifle your ability to make a living (stagnant wage for decades), then they want to ensure that when you should be able to retire with diginity (Social Security) you cannot. The very last thing you have is your single, solitary vote, which must NOT be infringed upon. This is the one thing this Supreme Court had better NOT screw with. WAKE UP PEOPLE, WAKE UP!!!!!!

    February 27, 2013 01:34 pm at 1:34 pm |
  14. Rick McDaniel

    This was ALWAYS, an improper aspect of the law, which simply sought to punish one region for ancient history, and not for anything they were actually doing at the time!

    February 27, 2013 01:35 pm at 1:35 pm |
  15. ghostriter

    Rick Mac, that is not true. States/district shown to be in compliance with the law for 10 years can file to become exempt and many already have.

    February 27, 2013 01:42 pm at 1:42 pm |
  16. Name lynn

    Is the congress getting ready to mess up the people rights in voting, they dont have nothing better to do than try to sale wolf tails. These are stupid people an what the want is not always right.

    February 27, 2013 01:55 pm at 1:55 pm |