Is This the End for the Core of the Voting Rights Act?

As the Supreme Court considers a new challenge to the 1965 Civil Rights law, questioning by conservative Justices suggests one of its central provisions may soon be struck down

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Evan Vucci / AP

People stand outside the Supreme Court before the start of a rally during arguments in the Shelby County, Ala., v. Holder case in Washington, Feb. 27, 2013.

At the Supreme Court argument Wednesday on the Voting Rights Act, Justice Anthony Kennedy – likely the deciding vote – had two potentially devastating words for those who want to see the landmark voting rights law upheld: “Times change.” It can be perilous to try to predict what the court will do based on the questions the Justices ask at oral argument. But those questions suggest that there may well be five votes — a majority — for striking down key parts of the act.

The Voting Rights Act was enacted in 1965 to ensure that black voters in the Jim Crow South were allowed to cast ballots. In the 48 years since, it has been a tool for the federal government to prevent states from racial gerrymandering — drawing district lines to stop minorities from getting elected — and election-day obstructions, like moving polling places at the last minute in minority neighborhoods.

(MORE: Will the Supreme Court Open the Door to Voter Discrimination?)

Conservatives have long been at war with the Voting Rights Act. They argue that it gives an unfair preference to minority voters, infringes on states’ rights, and is an abuse of power by Congress. The case the court is considering, Shelby County v. Holder, challenges a key part of the act: section 5, which requires all or part of 16 states to “pre-clear” changes with the Justice Department to ensure that they do not unfairly burden minority voters.

Going into the argument, the court’s four most conservative Justices were all-but-certain votes against section 5, and that seems just as true now. At the argument, Chief Justice John Roberts — who has expressed skepticism about the Voting Rights Act for decades — took up the line being pushed by Shelby County, Alabama: that the act unfairly puts a heavier burden on southern states (even though it also covers some northern jurisdictions). Chief Justice Roberts asked: “Is it the government’s submission that the citizens in the South are more racist than the citizens in the North?”

Justice Antonin Scalia — as is his wont — was less subtle. He called the act “a perpetuation of racial entitlement.” Justice Alito echoed Chief Justice Robert’s concerns, asking why Congress did not make a “new determination” about which states and localities should be covered. Justice Clarence Thomas did not ask any questions — his longstanding practice — but four years ago he voted to strike down the act, and it is all but certain he will again.

(MORE: How We Can Reform Our Elections)

The seeming solidity of those four conservative votes makes Justice Kennedy’s skeptical stance potentially decisive. At the argument, he said he saw the Voting Rights Act as “utterly necessary” in 1965, but it was now “not clear” to him. He added: “The Marshall Plan was very good, too — the Northwest Ordinance, the Morrill Act – but times change.”

The court’s four more liberal Justices used their questioning to underscore the reasons why the act is still needed – and why Congress had ample constitutional authority to enact it. Justice Sonia Sotomayor told the lawyer for Shelby County that even if parts of the South have changed “your county pretty much hasn’t.” Justice Stephen Breyer compared the racial discrimination that created the need for the act to a disease, and said that things may have changed to some degree “But we know one thing: the disease is still there in the state.” All these four liberal Justices can do without a fifth on their side, however, is write a dissent.

Cases do not always come out the way they appear headed in oral argument. Justice Kennedy, or one of the other conservative Justices, may ultimately balk at striking down a key part of a revered civil rights law that has been enacted repeatedly by Congress with bipartisan support. In the end, the court may use this case to give the Voting Rights Act a ringing endorsement. But right now, that is probably not the smart bet.

MOREHow to Solve the Voter ID Debate

95 comments
AnthonyMcMillan
AnthonyMcMillan

The right has been going after this legislation for years becasue without it, interferring with elections becomes easier. Overt racism exists on all sides of the aisle and in society itself, however the rights insistence that this legislation be cut down is hardly in our "best interest". The republican party has tried almost everything esp. during the last presidential election to get minorities to stop voting because they almost always vote with the democrats. By creating "voter right" laws that do anything but protect voters to actually having people standing outside polling places to avert voters away, its pathetic and sad that the right has stooped to such cowardly ways to try to win a election. The Surpreme Court has been almost equally damaging with the "Corporations are People" agenda that has been signed into law, allowing corporations, some outside the country to dedicate uncontrolled amounts of money toward a election, ensuring that the american people have even less control of the govt. then at anyother time in history. I hardly expect them to act otherwise, unfortunately. Perhaps the surprieme court should revisit whether surpreme court justices should have "lifetime" appointments. Hell now would be my answer.

rohit57
rohit57

"Justice Alito echoed Chief Justice Robert’s concerns, asking why Congress did not make a “new determination” about which states and localities should be covered."

This is a very important point.  Suppose that an examination is given at a certain date, most students pass but a few fail.  OK, fine, some pass and some fail.  Several decades pass and the same exam is given to the same students, and miracle, EXACTLY the same students fail.

 This is mindboogling.   And note that two of the nine states covered have non-white governors, one has a black senator, and the country has a black president.  None of this was true in 2006, let alone 1965.

 So "times change".   But I suspect that the liberal habit of describing everyone who disagrees with them as racist, will not change.

mrbomb13
mrbomb13

Just like affirmative action, the Voting Rights Act is an obselete piece of federal legislation.  Both pieces served their purpose when overt discrimination existed in society, and racism was prevalent across many segments of society.

kramartini
kramartini

The real reason for Section 5 has nothing to do with racism in the South generally, but with real or perceived racism in Federal courts in the South.

After all, Section 2 of the Voting Rights Act makes discriminatory voting changes illegal in ALL states, Those suffering from discrimination can sue in local Federal courts and seek relief. Furthermore, if a state or smaller jurisdiction repeatedly defies the Federal court, it can be sued under Section 3, and could be forced to preclear all future voting changes in a manner much like Section 5 does today.

By contrast, states covered by Section 5 must bring suit in a Federal court in Washington, DC, not locally. This was needed in the 1960's because many Federal judges were segregationist and could not be trusted to provide equal justice in voting matters.

Today, Federal judges in the South are no different than those elsewhere, and they all take voting rights seriously. Thus, Sections 2 and 3 are sufficient and there is no reason for Section 5.

SanMann
SanMann

Now that an African-American is president of the United States, on what basis is the Voting Rights Act still valid? Is it meant to be continued for perpetuity? I'm Asian and not black, and so I want to know if African-American voting rights are the automatic litmus test for rights in America. Hispanic Americans now outnumber African Americans in the US. So is the shadow of Jim Crow supposed to dominate political thinking and policymaking forever? Or hasn't this simply degenerated into another form of political pandering?

kamikrazee
kamikrazee

The truth is that gerrymandering of all sort, manner and means can and will occur everywhere, not just in the south, for all types of reasons, its just that the south has a tradition of doing it for racial reasons.       The danger that is seen by its past and possibly future victims is that a Supreme Court decision now will make it so much harder to rectify should it happen again.    The remedies applied in the past need not be universal to the 50 states when the specific issue was localized in a very few states.    This should be addressed by the administration and Congress, (but we know how well they work together), rather than the Court.


lfrankel520
lfrankel520

Is the core of the Act the ability to make sure all actions related to voting can be challenged in court or is the heart that 14 states are permanently racists and have forfeited the right to determine their election laws and boundaries?  The story led me to believe the latter even though I would hope the intent of Congress was the prior. 

MyronB.Pitts
MyronB.Pitts

Times do change, but the most cursory glance at the comments section for any website in America shows that racism is still alive and well. Behind the cloak of anonymity, people's real feelings come out. So racism remains; the question is whether it is still broad enough and deep enough to make a difference in whether a well-qualified black candidate can win. Obama's election would suggest no. That the Senate has just two blacks -- both appointed -- suggests yes.


Kasirith
Kasirith

Well if they're so worried about calling out certain states, then we should just make ALL states require justice department approval. Racism is still rampant in this country, as the fact this came up at all proves.

JasonBras
JasonBras

one could make a claim that "urban voters" are gerrymandered to ensure a liberal/democrat outcome too. 

droid4alex
droid4alex

If the time to make everything TRULY equal is not now, then when is it? Imho, the time is long past. It is less compassionate to do otherwise, even though that may be the intent.

killroy71
killroy71

So, just by levelling the playing ground for minorities, the South views that as a unfair advantage to minorities? Then I think the answer to Roberts' question is, "Yes, the South is more racist than the North."

droid4alex
droid4alex

Times DO change. Affirmative action once made sense from a compassionate point of view. That hasn't been the case for a long time. It's more compassionate to give everyone the same chance, and let competition be the deciding factor, as it will lead to smarter students and improved quality of life in the long run. It's time to make everything truly equal. At this point, that is actually the most compassionate thing to do. If it's not time now, then when?

t*
t*

From the article... Justice Sonia Sotomayor told the lawyer for Shelby County that even if parts of the South have changed “your county pretty much hasn’t.”  Sounds to me like Sotomayer is the racist here.

AaronCohn
AaronCohn

I certainly hope it is the end.  The Holder inJustice department has been abusing the VRA as an excuse to prevent needed reforms such as voter ID laws.  I have to cough up an ID to buy sudafed at the drug store or board a jumbojet.  Surely that's not too much of an imposition for voting.

solardowork
solardowork


Keep Spending the American's Tax Dollars like there is no end to it.

BUT HE WILL KEEP SPENDING YOUR MONEY LIKE IT IS HIS. Obama keeps thinking he is so good for helping his friends by spending lots of your money to his friends over seas. Obama spent over 2 trillion dollars first year in office. Obama has spent over 16 trillion dollars in the last 4 year in office.

Thanks to all of you who do not know how to count and voted.

No more government aid to you it will be cut. Less jobs more Taxes out of the pay checks of those that do work. No more energy  assistance it is cut. If you are in a Nursing Home it to might be with the many that are closing this April or soon after.

If you have a Government Job it too might soon be cut start looking for another job quick if you can find one.

You wanted more government control thinking you will get more hand outs now all Americans will have more of a burden. More Taxes to help stop most all growth of industries in What was the Land of WE THE PEOPLE.

Soon to be the land of big GOV and the friends off them. History Lesson The Roman Empire. Or OPEC Empire lets keep giving money to them that have cut off the heads of anyone with a Bible.

Why on Earth are we buying oil from overseas when are good neighbor Canada that is our ally has oil. Obama want your money to go to his friends and keeps Insulting Our Allies.

Thanks for Showing the World America has many that did not get a good schooling.

The Lord's Little Helper
Paul Felix Schott

PS
All those years you gave your money to Social Security, and you now need it to live, it too.
Social Security to take a cut.

Obama and his friends to live off your money like kings for the rest of their lives. For doing the Devils work.

Till our LORD comes.