So wrote Chief Justice John Roberts four years ago, in an opinion that sharply questioned the continued relevance of a central pillar of the 1965 Voting Rights Act, the landmark civil-rights law designed to prevent racial discrimination at the polls. Roberts chose at that time not to mess with the law, but the court revisited it on Wednesday, with the bench's conservative wing expressing deep skepticism about the Voting Rights Act's constitutionality. There is now a very good chance that the law may not emerge intact from the court's grip — a result that critics say would be a disaster for the civil rights movement.
At issue is Section 5 of the Voting Rights Act, which requires nine states with a history of discrimination, as well as individual counties across the country, to obtain permission from the Justice Department or a federal judge before making changes to voting procedures. Most of the nine states are in the South, and in recent years they have bridled against restrictions that they say are completely anachronistic. The case before the court was brought by Alabama's Shelby County, which has argued that "the violence, intimidation, and subterfuge that led Congress to pass Section 5 and this court to uphold it no longer remains."
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On Wednesday, conservative justices on the court appeared to sympathize. Justice Anthony Kennedy described the situation as placing the states "under the trusteeship of the United States government." Roberts pointedly asked whether southerners are more racist than northerners. And Justice Antonin Scalia, never one to curb his tongue, predictably made the most controversial remark of the day, blasting Section 5 as a "perpetuation of racial entitlement."
The four liberals on the court defended the law. Justice Sonia Sotomayor went after Scalia, asking, "Do you think Section 5 was voted for because it was a racial entitlement?" She added, "Do you think racial discrimination has ended?" Justice Stephen Breyer continued that thought, saying, "It's an old disease. It's gotten a lot better. A lot better. But it's still there."
Liberal commentators have furiously defended Section 5, citing a crop of recent voter ID laws in Texas, Florida, South Carolina, Virginia, and elsewhere that allegedly would have suppressed the minority vote. As Myrna Perez and Lucy Zhou write at The Christian Science Monitor:
In 2011 and 2012, 19 states passed more than two-dozen measures that would have effectively made it harder to vote, the biggest rollback in voting rights since the Jim Crow era. These measures included voter ID laws, early-voting cutbacks, and curbs on community-based voter registration drives — all of which imposed burdens on minority voters.
The Brennan Center for Justice and other voting-rights advocates fought back. Citizens rejected these laws at the polls, nearly a dozen courts overturned or weakened restrictive measures, and the Department of Justice blocked others. In the end, far fewer voters were affected by the voting-law changes than initially predicted.
Section 5 of the Voting Rights Act was instrumental in protecting these votes. [Christian Science Monitor]
Defenders of the law also point out that it was reauthorized for another 25 years by Congress as recently as 2006 — on a 98-0 vote in the Senate. They say that if the court were to strike down Section 5, it would fly in the face of the people's will. And as Adam Liptak at The New York Times notes, Congress only reauthorized the law "after holding extensive hearings on the persistence of racial discrimination at the polls."
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Scalia, for one, doesn't buy that argument, implying that lawmakers are merely afraid of being branded as racists. "This is not the kind of question you can leave to Congress," he said. "They're going to lose votes if they vote against the Voting Rights Act. Even the name is wonderful."
As it happens, while the law enjoyed overwhelming bipartisan support in 2006, it has grown less popular among conservatives. "Only two Republican members of Congress, Reps. Jim Sensenbrenner of Wisconsin and Steve Chabot of Ohio, signed onto a brief defending the law in its current trip to the Supreme Court," reports Josh Gerstein at Politico.
Conservatives also contend that the formula for determining which states and counties come under Section 5 are hopelessly outdated. As NPR explains:
Congress came up with the formula in 1965 to cover areas of the country that had a history of blatant, even violent discrimination in voting; but the formula has not been changed since 1975, and it still relies on election data from 1972. [NPR]
Perhaps that's where the court will strike if it wants to pursue a narrower ruling. Liptak explains the possible fallout from such a decision:
Should the court strike down the coverage formula, Congress would be free to take a fresh look at what jurisdictions should be covered. But making distinctions among the states based on new criteria may not be politically feasible. [The New York Times]
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