High Court’s Conservative Justices Lead Attack on Voting Rights Act’s Sec. 5

February 27, 2013

by Jeremy Leaming

The U.S. Supreme Court’s right-wing bloc appears ready to seriously weaken the integral enforcement provision of the Voting Rights Act of 1965.

During oral argument in Shelby County v. Holder, all of the court’s conservative justices as SCOTUSblog publisher Tom Goldstein reported appeared “committed to invalidating Section 5 of the Voting Rights Act and requiring Congress to revisit the formula for requiring preclearance of voting changes.” (Section 5 requires certain states and towns, mostly in the South, to obtain “preclearance” for any changes to their voting laws and procedures to ensure they do not harm minority voters.)

The New York Times’ Adam Liptak in a piece on today’s oral argument noted that Justice Anthony Kennedy asked attorneys arguing in favor of Section 5, how much longer states like Alabama must live “under the trusteeship of the United States government.” Liptak also noted that Justice Antonin Scalia took a shot at Section 5 saying it produces a “perpetuation of racial entitlement.” The Huffington Post's Ryan J. Reilly expounded on Scalia's commentary, noting that the justice flippantly said Congress reauthorized the Voting Rights Act in 2006 because, who could vote against a bill with  such a "wonderful" name.

Bloomberg’s Greg Stohr also noted Kennedy’s skepticism of Section 5, saying the justice chided Congress for relying on a supposedly outdated formula for deciding what states should be covered.

Chief Justice John Roberts asked U.S. Solicitor General Donald Verrilli whether the Obama administration believes people in the South “are more racist than citizens in the North.” The Associated Press reported that Verrilli said no.

As Liptak noted in a piece earlier this morning, it has long been clear that the Court’s conservative wing views with great skepticism the formula Congress has used in determining what states should be covered by Section 5. He noted the 2009 opinion in Northwest Austin Municipal Utility District v. Holder, in which Roberts said Congress should revisit the formula. Congress, however, took no action. Liptak continued that the conservative justices “could stop short of striking down Section 5 itself.” Instead, Liptak said the high court could call for an end to the use of the formula, meaning Congress would need to revise it for “preclearance” to continue to be useful. (During the 2012 elections cycle, Section 5 was used by the Department of Justice to halt potentially discriminatory voting procedures from taking effect in several of the covered jurisdictions, such as Texas, Florida and South Carolina.)

Goldstein also wrote that it appears “unlikely that the Court will write an opinion forbidding a preclearance regime. But it may be difficult politically for Congress to enact a new measure.”

Supporters of Section 5 argued in a slew of briefs before the high court that Congress via the 14th and 15th Amendments has great discretion in crafting proper legislation to ensure that states do not violate the rights of minorities, including particularly the right to ensure states do not discriminate in voting. It appeared during oral argument that the court’s five right-wing justices believed Congress has not done its job properly.

ACS President Caroline Fredrickson said, “With so many recent efforts to suppress the vote, it should be clear that the law remains relevant and necessary. This Court should refrain from deciding unilaterally that Congress has completed its job of ensuring the promise of the 14th and 15th Amendments.”

Of course it’s not wise to predict Supreme Court opinions on the basis of oral argument alone. Nonetheless as longtime court-watchers, such as Goldstein and Liptak, have already noted it appears that the high court’s rightist justices see things vastly differently. They see a congressional action that oversteps constitutional parameters.

The high court’s four left-of-center justices, according to questions during oral argument, don’t agree. They see ongoing racial discrimination in voting that remains within Congress’s purview to address.

Racial discrimination in voting is “an old disease,” Justice Stephen G. Breyer said. "It’s gotten a lot better. A lot better. But it’s still there.”

Justice Sonia Sotomayor called out Shelby County officials for their recent and blatant attempts to dilute the minority vote in their state. “Why would we vote in favor of your county whose enforcement record is the epitome of the reasons that caused this law to be passed in the first place?”

In a recent ACS panel discussion on the case, NAACP LDF’s Ryan Haygood described the machinations of Shelby County officials to suppress the minority vote. Some of the officials’ comments could not be any clearer – the intent was to discriminate against African Americans in voting. The 15th Amendment bars racial discrimination in voting and gives Congress the power to enact appropriate legislation to enforce the prohibition. For decades Section 5 of the Voting Rights Act has been the most effective tool in halting officials throughout the South from enacting laws that would have stripped the scores of the right to vote.

[Image via Amelia VanderLaan]