Justices skeptical of voting rights law

MARK SHERMAN

Asso­ci­ated Press

WASHINGTON — The Supreme Court’s con­ser­v­a­tive jus­tices voiced deep skep­ti­cism Wednes­day about a sec­tion of a land­mark civil rights law that has helped mil­lions of Amer­i­cans exer­cise their right to vote.

In an omi­nous note for sup­port­ers of the key pro­vi­sion of the Vot­ing Rights Act, Jus­tice Anthony Kennedy both acknowl­edged the measure’s vital role in fight­ing dis­crim­i­na­tion and sug­gested that other impor­tant laws in U.S. his­tory had run their course. “Times change,” Kennedy said dur­ing the fast-paced, 70-minute argument.

Kennedy’s views are likely to pre­vail on the closely divided court, and he tends to side with his more con­ser­v­a­tive col­leagues on mat­ters of race.

The court’s lib­er­als and con­ser­v­a­tives engaged in a some­times tense back-and-forth over whether there is an ongo­ing need in 2013 for the part of the vot­ing rights law that requires states with a his­tory of dis­crim­i­na­tion, mainly in the Deep South, to get approval before mak­ing changes in the way elec­tions are held.

Jus­tice Antonin Scalia called the law a “per­pet­u­a­tion of racial entitlement.”

Chief Jus­tice John Roberts, a vocal skep­tic of the use of race in all areas of pub­lic life, cited a vari­ety of sta­tis­tics that showed starker racial dis­par­i­ties in some aspects of vot­ing in Mass­a­chu­setts than in Mis­sis­sippi. Then he asked the government’s top Supreme Court lawyer whether the Obama admin­is­tra­tion thinks “the cit­i­zens in the South are more racist than cit­i­zens in the North?”

The answer from Solic­i­tor Gen­eral Don­ald Ver­rilli was no.

The ques­tion, and oth­ers like it from the con­ser­v­a­tive jus­tices, largely echoed the doubts they first expressed four years ago in a sim­i­lar case that ended with­out resolv­ing the con­sti­tu­tion­al­ity of the lat­est renewal of the vot­ing rights law, in 2006. They ques­tioned whether there remain appre­cia­ble dif­fer­ences between the loca­tions cov­ered by the law and those that are not. They also won­dered whether there was any end in sight for a pro­vi­sion that intrudes on states’ rights to con­duct elec­tions and which was regarded as an emer­gency response to decades of state-sponsored dis­crim­i­na­tion in vot­ing, despite the Fif­teenth Amendment’s guar­an­tee of the vote for black Americans.

The pro­vi­sion shifted the legal bur­den and required gov­ern­ments that were cov­ered to demon­strate that their pro­posed changes would not dis­crim­i­nate. Another part of the vot­ing rights law, not being chal­lenged, allows for tra­di­tional, after-the-fact claims of dis­crim­i­na­tion in vot­ing and applies across the country.

As his admin­is­tra­tion was defend­ing the vot­ing rights law, Pres­i­dent Barack Obama was across the street at the Capi­tol unveil­ing a statue of civil rights pio­neer Rosa Parks, who in 1955 famously refused to give up her seat on a city bus in Mont­gomery, Ala., to a white man. The court will have to decide whether the con­di­tions that gave rise to that sem­i­nal event are, like the statue, a part of his­tory, or whether they per­sist in parts of the nation.

The court’s four lib­eral jus­tices, includ­ing Obama appointees Elena Kagan and Sonia Sotomayor, appeared uni­formly to be will­ing to defer to the deci­sion by Con­gress that more progress needs to be made before free­ing states from the spe­cial fed­eral monitoring.

Those jus­tices aggres­sively ques­tioned Bert Rein, the lawyer rep­re­sent­ing Shelby County, Ala., in its chal­lenge to the law.

Sotomayor acknowl­edged some parts of the South had changed, but she asserted that recent vot­ing rights law­suits in Alabama sug­gested that Shelby County, near Birm­ing­ham, has not made suf­fi­cient progress.

“Why would we vote in favor of a county whose record is the epit­ome of what caused the pas­sage of this law to start with?” Sotomayor asked.

Kagan chimed in that any for­mula devised by Con­gress “would cap­ture Alabama,” where she said cer­tain dis­crim­i­na­tory vot­ing prac­tices have persisted.

But Rein said the issue was whether the for­mula in place, using sta­tis­tics that are at least 40 years old, remains a valid way to deter­mine which loca­tions have to ask for per­mis­sion to make vot­ing changes.

Debo Adeg­bile, a lawyer for the NAACP Legal Defense and Edu­ca­tional Fund, argued to the court on behalf of local Alabama elected offi­cials and civil rights lead­ers. He sought to show the jus­tices that there is a cur­rent need for the law, an effort to counter the court’s admo­ni­tion four years ago that cur­rent con­di­tions, not his­tory alone, must jus­tify the con­tin­u­ing appli­ca­tion of the law.

In 2011, Adeg­bile said, a judge in Alabama cited state law­mak­ers’ deroga­tory ref­er­ences to African-Americans as a rea­son to con­tinue to pro­tect minor­ity vot­ers through the Vot­ing Rights Act.

But Roberts chal­lenged the lawyer. “Have there been episodes, egre­gious episodes of the kind you are talk­ing about in states that are not cov­ered?” the chief jus­tice asked.

Absolutely, Adeg­bile replied.

“Well, then it doesn’t seem to help you make the point that the dif­fer­en­tial between cov­ered and non­cov­ered con­tin­ues to be jus­ti­fied,” Roberts said.

The require­ment cur­rently applies to the states of Alabama, Alaska, Ari­zona, Geor­gia, Louisiana, Mis­sis­sippi, South Car­olina, Texas and Vir­ginia. It also cov­ers cer­tain coun­ties in Cal­i­for­nia, Florida, New York, North Car­olina and South Dakota, and some local juris­dic­tions in Michi­gan and New Hamp­shire. Cov­er­age has been trig­gered by past dis­crim­i­na­tion not only against blacks, but also against Amer­i­can Indi­ans, Asian-Americans, Alaska Natives and Hispanics.

Among the cov­ered states, Alabama, Alaska, Ari­zona, Geor­gia, South Car­olina, South Dakota and Texas are sid­ing with Shelby County, while Cal­i­for­nia, Mis­sis­sippi, New York and North Car­olina argue that the law should be upheld.

Nearly 250 of the 12,000 state, county and local gov­ern­ments cov­ered by the law have used an escape hatch to get out from under the spe­cial over­sight by demon­strat­ing that they and smaller places within their bor­ders no longer dis­crim­i­nate in vot­ing. The 10 cov­ered towns in New Hamp­shire are poised to exit as they await fed­eral court approval for an agree­ment between the state and the Jus­tice Department.

Thou­sands more juris­dic­tions also may be eli­gi­ble, said vot­ing rights expert Gerry Hebert. But that list prob­a­bly does not include Shelby County, because one of its cities, Calera, defied the vot­ing rights law in 2008 and pro­voked inter­ven­tion by the Jus­tice Depart­ment dur­ing the Bush administration.

Alabama’s sta­tis­tics offer fod­der to both sides.

“I could tell you that in Alabama the num­ber of leg­is­la­tors in the Alabama Leg­is­la­ture are pro­por­tion­ate to the num­ber of black vot­ers. There’s a very high reg­is­tra­tion and turnout of black vot­ers in Alabama,” Rein said.

Kagan put for­ward other num­bers show­ing the state at or near the top of suc­cess­ful claims of vot­ing dis­crim­i­na­tion. She the state is about 25 per­cent black but has no black elected statewide official.

Exit polls in Novem­ber showed Obama won only about 15 per­cent of the state’s white vot­ers. In neigh­bor­ing Mis­sis­sippi, the num­bers were even smaller, at 10 per­cent, the sur­veys found.

The prior approval require­ment played a major role last year in block­ing or delay­ing vot­ing laws in South Car­olina and Texas.

Fed­eral judges in Wash­ing­ton refused to sign off on two sep­a­rate Texas plans to insti­tute a tough photo iden­ti­fi­ca­tion law for vot­ers and redis­trict­ing plans for the state’s con­gres­sional del­e­ga­tion and Leg­is­la­ture. Also, South Carolina’s plan to put in place its own voter ID law was delayed beyond the 2012 elec­tion and then allowed to take effect only after the state carved out an excep­tion for some peo­ple who lack photo identification.

Those episodes were not dis­cussed Wednes­day, although they are part of the volu­mi­nous writ­ten fil­ings in the case.

Instead, the bulk of the dis­cus­sion con­cerned Con­gress’ actions in 2006, when over­whelm­ing majori­ties in the Republican-led Con­gress approved and Pres­i­dent George W. Bush signed a 25-year exten­sion of the prior-approval mea­sure, which was first adopted in the Vot­ing Rights Act of 1965.

Scalia pointed to the lop­sided vote as a rea­son to ques­tion its legit­i­macy, even though as Kagan said, every sen­a­tor in states cov­ered by the law voted for it. Per­haps, he said, they decided “they’d bet­ter not vote against it, that there’s noth­ing, that there’s none of their inter­ests in vot­ing against it.”

Later, Scalia said he wor­ries that the pro­vi­sion will never fade away because mem­bers of Con­gress would be reluc­tant to risk a vote against it. “It’s a con­cern that this is not the kind of a ques­tion you can leave to Con­gress,” he said.

Scalia capped his com­ment with this obser­va­tion: “Even the name of it is won­der­ful: The Vot­ing Rights Act. Who is going to vote against that in the future?”

A deci­sion is expected by late June.

The case is Shelby County, Ala., v. Holder, 12–96.

Posted by AP News on Feb 28 2013. You can follow any responses to this entry through the RSS Feed. Comments can be made below.