February 27, 2013

Conservative Justices Voice Skepticism on Voting Law

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WASHINGTON — A central provision of the Voting Rights Act of 1965 may be in peril, judging from tough questioning on Wednesday from the Supreme Court’s more conservative members.

Justice Antonin Scalia called the provision, which requires nine states, mostly in the South, to get federal permission before changing voting procedures, a “perpetuation of racial entitlement.” Chief Justice John G. Roberts Jr. asked a skeptical question about whether people in the South are more racist than those in the North. Justice Anthony M. Kennedy asked how much longer Alabama must live “under the trusteeship of the United States government.”

The court’s more liberal members, citing data and history, said Congress remained entitled to make the judgment that the provision was still needed in the covered jurisdictions.

“It’s an old disease,” Justice Stephen G. Breyer said of efforts to thwart minority voting. “It’s gotten a lot better. A lot better. But it’s still there.”

Four of the nine-member court’s five more conservative members asked largely skeptical questions about the law. The fifth, Justice Clarence Thomas, did not ask a question, as is typical.

The law, a landmark achievement of the civil rights era was challenged by Shelby County, Ala., which said that the requirement had outlived its usefulness and that it imposed an unwarranted badge of shame on the affected jurisdictions.

The county’s lawyer, Bert W. Rein, said that the “problem to which the Voting Rights Act was addressed is solved.”

In reauthorizing the provision for 25 years in 2006, Congress did nothing to change the criteria for inclusion under the provision, relying instead on a formula based on historic practices and voting data from elections held decades ago. Much of the argument concerned that coverage formula.

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.

Four years ago, the court signaled that the law may need revision to withstand constitutional scrutiny, hinting that Congress might want to take a fresh look at the places subject to the preclearance provision, called Section 5. Congress failed to act.

Solicitor General Donald B. Verrilli Jr. said Congress had made a considered and cautious decision in extending the act.

Debo P. Adegbile, a lawyer with the NAACP Legal Defense and Educational Fund, said that “our right to vote is what the United States Constitution is about.”

Section 5, originally set to expire five years after the law was enacted, was upheld by the Supreme Court in 1966 as a rational response to the often flagrantly lawless conduct of some Southern officials then.

Congress repeatedly extended the requirement: for 5 years in 1970, 7 years in 1975, and 25 years in 1982. Congress renewed the act in 2006 after holding extensive hearings on the persistence of racial discrimination at the polls, again extending the preclearance requirement for 25 years.

But it made no changes to the list of jurisdictions covered by Section 5, relying instead on a formula based on historical practices and voting data from elections held decades ago. It applies to nine states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia — and to scores of counties and municipalities in other states.

Last May, a divided three-judge panel of the United States Court of Appeals for the District of Columbia upheld the law. Judge David S. Tatel, writing for the majority, acknowledged that “the extraordinary federalism costs imposed by Section 5 raise substantial constitutional concerns,” and he added that the record compiled by Congress to justify the law’s renewal was “by no means unambiguous.”

“But Congress drew reasonable conclusions from the extensive evidence it gathered,” he went on. The constitutional amendments ratified after the Civil War, he said, “entrust Congress with ensuring that the right to vote — surely among the most important guarantees of political liberty in the Constitution — is not abridged on account of race.”

“In this context,” he wrote, “we owe much deference to the considered judgment of the people’s elected representatives.”

The dissenting member of the panel, Judge Stephen F. Williams, surveyed recent evidence concerning registration and turnout, the election of black officials, the use of federal election observers and suits under another part of the law. Some of that evidence, he said, “suggests that the coverage formula completely lacks any rational connection to current levels of voter discrimination,” while other evidence indicates that the formula, “though not completely perverse, is a remarkably bad fit with Congress’s concerns.”

“Given the drastic remedy imposed on covered jurisdictions by Section 5,” he wrote, “I do not believe that such equivocal evidence can sustain the scheme.”

The Supreme Court last considered the constitutionality of the 2006 extension of the law in a 2009 decision, Northwest Austin Municipal Utility District Number One v. Holder. But it avoided answering the central question and ruled instead on a narrow statutory ground, saying the utility district in Austin, Texas, that had challenged the constitutionality of the law might be eligible to “bail out” from being covered by it. Still, Chief Justice Roberts, writing for the majority, was skeptical about the continued need for Section 5.

“The historic accomplishments of the Voting Rights Act are undeniable,” he wrote. But “things have changed in the South.”

He said: “Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.”

“The statute’s coverage formula is based on data that is now more than 35 years old,” he added, “and there is considerable evidence that it fails to account for current political conditions.”

But the chief justice said the court should avoid deciding hard constitutional questions when it could. “Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today,” he wrote.

Wednesday’s argument in Shelby County v. Holder, No. 12-96, indicated that the justices are now prepared to provide an answer to the question they left open four years ago.

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