A key section of the historic Voting Rights Act might not exist for the 2014 midterm election, as a conservative-leaning majority of the Supreme Court doubted its validity during oral arguments this past week.
The tension in the court room was palpable as the court’s conservative members traded blows with the liberal justices, showing skepticism about a main pillar of the law that oversees voting changes in states with a history of racism at the polls, most of which are in the South.
Under Section 5 of the 1965 Voting Rights Act, Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia must submit changes in voting districts for approval by the Justice Department. Specific counties and townships in seven other states, including Florida, are also required to have their plans approved.
Alabama officials, who sued the federal government over their 2010 redistricting plans, are looking for vindication from what they describe as an era of racism that has been corrected.
The hearing spotlighted touchy, divisive race issues from as far back as the Civil War.
“Is it the government’s submission that citizens in the South are more racist than citizens in the North?” Chief Justice John Roberts, a conservative, pointedly asked U.S. Solicitor General Donald B. Verrilli, who defended the Justice Department.
“I don’t know the answer to that question,” Verrilli responded. But he noted that there was evidence of the law’s necessity specifically in the South, based on the high number of voter discrimination cases that have come before the Justice department from the region.
At times, it seemed the justices were arguing more with each other than asking questions from the two parties. A central question was whether it is the court’s place to decide the law, or whether it should be left up to Congress.
Congress gave the law a 25-year extension with huge bipartisan support in 2006, passing with a 390-33 vote in the House and a unanimous 98-0 vote in the Senate. The language of the bill — and three past extensions in 1970, 1975 and 1982 — did not change the criteria of Section 5 of the Voting Rights Act from the 1965 version.
Justice Antonin Scalia, one of the most conservative members of the court, said Section 5 perpetuated “racial entitlement,” and would never be changed by Congress because politics would interfere. Therefore, he said, the issue must be decided by the court.
“There are certain districts in the House that are black districts by law just about now,” Scalia said.
Census Bureau data shows the percentage of black Southern voters is about equal to white voters — and in some cases higher, like in Alabama’s 2010 midterm election.
But supporters of Section 5 argue the discrimination has evolved. The problem isn’t registration or poll barriers, they say, but more subtle ways of disenfranchising the black community. These so-called “second generation” barriers can include manipulating voting districts and putting holding at-large local elections to weaken the minority vote.
“We know that registration is fine; that is no longer the problem,” said Justice Ruth Ginsburg, a liberal. “But the discrimination continues in other forms.”
Supporters say Section 5 is necessary because it prevents discrimination, instead of costly lawsuits to correct it.
Several hundred protesters from the NAACP and United Auto Workers union, — some of whom who traveled on buses from Alabama — demonstrated on the court’s steps.
Theoretically, Congress could institute a new formula for redistricting approval if the justices strike it down. The court has upheld the Voting Rights Act four other times since its passage.
A decision is expected by the end of June.
Reach reporter Kullgren at email@example.com.