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Supreme Court Hears Arguments Against Key Provision of Voting Rights Act

February 27, 2013 at 12:00 AM EDT
The Supreme Court heard arguments over a provision in the landmark Voting Rights Act, which requires states with a history of racial discrimination to get approval by the Justice Department before making any changes to voting rules. Marcia Coyle of the National Law Journal was in court and talks to Jeffrey Brown.

JEFFREY BROWN: The nine justices of the U.S. Supreme Court pondered a central piece of civil rights legislation today, at issue, whether it’s still needed 48 years after it first became law.

REP. JOHN LEWIS, D-Ga.: We are not there yet.

JEFFREY BROWN: Georgia Congressman and civil rights leader John Lewis was one of many who rallied outside the court this morning for the Voting Rights Act. They were there on a day the justices heard a challenge to a key section of the law. It requires states with a history of discrimination, mainly in the Deep South, to get federal approval, or pre- clearance, before changing voting procedures or districts.

Lewis argued that the provision known as Section 5 must be preserved.

JOHN LEWIS: There are still forces in this country that want to take us back to another period, but we’re not going back. We have come too far. We have made too much progress to go back.

The literacy test may be gone, but people are using other means, other tactics and techniques. So we still need Section 5, and that’s why we are here today standing up for the voting rights of all Americans.

JEFFREY BROWN: In 1965, Lewis helped lead 600 people across the Edmund Pettus Bridge in Selma, Ala., where police beat them with nightsticks and state troopers fired tear gas. The event became known as Bloody Sunday and proved a tipping point.

President Lyndon Johnson and Congress responded with the Voting Rights Act. Lawmakers have renewed the law ever since, most recently in 2006, with overwhelming support. But Shelby County, Ala. says the law has outlived its time. Frank Ellis is the county attorney.

FRANK ELLIS, Shelby County Attorney: And we ask for some recognition that we and these other covered jurisdictions have made great strides over the last 48 years.

I was 24 years old. I have been the county attorney since 1964. I was 24 years old when we came under Section 5. I’m 73 last weekend, and we’re still under the same formula, none of which has applied to us in many, many, many, many years.

JEFFREY BROWN: President Obama has recently voiced support for upholding the provision of the Voting Rights Act. He said that if part of the law is struck down, it will be harder to prevent acts of voting discrimination.

The case provoked some tough questioning at the court today.

And, of course, Marcia Coyle of the National Law Journal was there and she is back with us tonight.

So, Marcia, tell us first a little bit about the challenge from Shelby County. Why this particular county? What’s their argument?

MARCIA COYLE, National Law Journal: OK.

Well, this case actually was teed up by an organization here in Washington, D.C., known as the Project for Fair Representation. The organization’s goal is to eliminate racial and ethnic preferences. The head of the organization looks for clients to bring lawsuits targeting racial or ethnic preferences.

It found Shelby County. The organization also finds a lawyer. It found Bert Rein, a well-known, well-respected lawyer here in Washington, D.C. And it funds the litigation. Shelby County agreed to do it, challenged Section 5. They went through the lower courts in May. A three-judge panel of the federal appellate court here in Washington upheld the law 2-1.

JEFFREY BROWN: Essentially saying that we just don’t — we don’t need it anymore, and we want to be — we don’t need this federal inquisition.

MARCIA COYLE: You mean Shelby County?

JEFFREY BROWN: Shelby County, yes, yes.


Today in the court, Mr. Rein’s main argument is that the formula used to determine which jurisdictions in the country should be subject to Section 5’s requirement that any voting change be pre-cleared by the Department of Justice or a federal district court here in Washington is outdated, that it did serve its purpose when it was designed first in 1964 to target that kind of discrimination prevalent at the time.

But when Congress took up the act in 2006, it didn’t reexamine the formula. It didn’t do a state-by-state analysis, as it should have, he believes, to determine whether certain states should newly be covered or old covered states be taken out.

JEFFREY BROWN: Well, and this sounds like very heated and dramatic questioning.

MARCIA COYLE: It was very intense.

JEFFREY BROWN: Intense is your word.


JEFFREY BROWN: And it sounds as though that argument found a lot of favor from the conservative justices.

Tell us about that, what you heard from them.

MARCIA COYLE: All right.

Well, they really focused for their questions on the lawyer for the United States, Solicitor General Donald Verrilli. And, there, Justice Scalia made a point. He said that when Congress first enacted the Voting Rights Act in the Senate, there were double-digit votes in opposition to it. And with each reauthorization of the Voting Rights Act, the number of opposing votes decreased until, in 2006, there were no opposing votes, and the House had a similar record.

And he said this wasn’t attributable, he didn’t think, to the need for the Voting Rights Act, but to what he called the phenomenon of racial entitlement, that once a society gives a racial entitlement, he said, it can never get out of it.

JEFFREY BROWN: And, therefore, that the courts needed to act, right, step in?

MARCIA COYLE: Step in, that’s right.

He said it wouldn’t end unless a court found that the entitlement no longer comported with the Constitution. Chief Justice Roberts pointed out to Mr. Verrilli that the state that had the worst disparity in registration and voting between African-Americans and whites was Massachusetts, and one of the best with that record is Mississippi.

He asked at one point, are the citizens in the South more racist than the citizens in the North? Mr. Verrilli’s main argument is, well, Congress built a record. It built a record of 15,000 pages to show that there was current discrimination and it had a right to look at past discrimination. Great deference is owed to Congress in this area.

JEFFREY BROWN: Well, and on the other side, the more liberal justices — I saw Justice Breyer, he referred to this as an old disease, something that’s gotten better, but is still there and we still should keep the…

MARCIA COYLE: Right. Yes, he asked Mr. Rein, why wouldn’t we keep a remedy that was working in place, as we would with an old disease we were trying to get rid of?

And, again, Mr. Rein responded that the remedy worked for the disease that the act was targeted at in 1965. A new remedy is needed.


JEFFREY BROWN: In a case like this, is one of the justices considered the key swing? It’s often Justice Kennedy who plays the role.

MARCIA COYLE: In race cases, it really is, but I would have to say that today he sounded very skeptical of the government’s arguments.

You really can’t predict how this sort of thing is going to turn out. In 2009, everybody thought Section 5 in another case would be struck down, but the court didn’t.

JEFFREY BROWN: And is there, as then, a kind of narrow way out of this, or do you get the sense that they have sort of signaled that they really want to resolve the big question here?

MARCIA COYLE: Well, since so much of the focus was on this coverage formula, how Congress determines who has to be covered, it’s possible the court could find that the formula is outdated, strike that down, and leave Section 5, the pre-clearance obligation in place.

But many believe that, without the coverage formula, Section 5 won’t work.

JEFFREY BROWN: All right, Marcia, thanks, as always.

MARCIA COYLE: My pleasure.