A crack in civil rights law? Some justices think so

The nation's most revered civil rights law emerged from a Supreme Court oral argument in critical condition Wednesday, putting existing remedies to voting discrimination in the South and some other states in danger of being declared unconstitutional.

The conservative justices who hold a slim majority on the court expressed grave doubts that the landmark law can remain intact when its most powerful section is based on a formula devised by Congress nearly a half-century ago.

Should the court rule 5-4 this spring against Section 5 of the Voting Rights Act, which requires all or parts of 16 states to clear all voting changes with the federal government, it would silence a weapon used as recently as last year to beat back photo ID laws, redistricting plans and restrictions on early voting.

It also would free Southern states from the burden of federal oversight every time they move a polling place — something Justice Anthony Kennedy, the court's perennial swing vote, likened to being "under the trusteeship of the United States government."

The balancing act between states' rights and federal oversight permeated the 77-minute session inside the packed courtroom, where the justices engaged in a sometimes pointed debate about racism and what Justice Antonin Scalia, the court's senior member, called "racial entitlements."

Although the South of former Alabama governor George Wallace and the Ku Klux Klan engaged in virulent forms of discrimination, including poll taxes and literacy tests, even liberal justices acknowledged a far different picture today. That put the Obama administration and civil rights advocates on the defensive.

"Is it the government's submission that the citizens in the South are more racist than the citizens in the North?" Chief Justice John Roberts asked Solicitor General Donald Verrilli, who defended what he called Congress' "cautious" reauthorization of the law in 2006.

Probing questions from Roberts and Kennedy made it appear that the die was cast for Section 5. Roberts went so far as to note that Massachusetts now has the worst black turnout in elections compared with whites — and Mississippi, the best.

The voting rights case is sandwiched between several other civil rights cases in a Supreme Court term that could become even more consequential than the previous one, when the court upheld Obama's health care law by the slimmest of margins and shakiest of reasons.

The justices have heard and are on the verge of deciding a case challenging the use of racial preferences in college admissions, a widespread practice among both private and public universities. And next month, they will hear challenges to California's ban on same-sex marriage and a federal law denying benefits to legally married gay and lesbian couples.

If the law falls ...

"It's easy to go broke guessing on the outcome of any Supreme Court argument," said Edward Blum, director of the Project on Fair Representation, which solicited the challenge to the law. But he said the questions from Roberts and others "highlighted the justices' skepticism about the differences in discrimination between the covered and non-covered jurisdictions. Those differences simply don't exist any longer."

A ruling against the Voting Rights Act would toss the ball back to Congress, which could try to update a coverage formula based on 1964 data that captures Alabama but not Arkansas, Mississippi but not Massachusetts, Texas but not Tennessee. Few observers, however, expect lawmakers to pick and choose among states and municipalities, even if they could overcome political inertia.

"People in the field would be putting pressure on Congress to do something about it," said Jon Greenbaum, legal director for the Lawyers' Committee for Civil Rights Under Law. "But we also know that, generally speaking, it's hard to pass any legislation through Congress these days."

The dramatic argument played out inside a packed courtroom that included such civil rights leaders as Jesse Jackson and Al Sharpton and Rep. John Lewis, who led some of the voting rights marches of the 1960s. Outside, hundreds of civil rights activists demonstrated with signs reading, "Protect My Vote."

Even before the argument ended, President Obama and congressional leaders of both parties were unveiling a statue of civil rights icon Rosa Parks across the street in the Capitol.

The court's four liberal justices put up a ringing defense of the law and its coverage formula, which remains based on voting patterns and discriminatory practices from 1964. Despite its age, Justice Elena Kagan said, "the formula seems to be working pretty well" by targeting states and jurisdictions where lawsuits charging voting discrimination have the greatest success.

That point was emphasized by Debo Adegbile, special counsel for the NAACP Legal Defense and Educational Fund, who defended the law in court. Through a series of statistics, he said, his side sought to prove that "discrimination in those places is more persistent and adaptive."

The remainder of the Voting Rights Act isn't challenged in Shelby County v. Holder, the case from Alabama that came before the high court Wednesday. Regardless of the justices' decision this spring, the law still will provide for legal challenges to voting changes deemed discriminatory in any state.

Those challenges are costly and time-consuming, while Section 5 puts the burden of proof on states and municipalities. Still, Kennedy said, "it's not clear to me that there's that much difference" between the two fixes — an indication he might be willing to let Section 5 expire.

The provision faced two major challenges — that its treatment of the South is outdated in light of racial progress there, and that the targeted states and municipalities no longer are substantially different from other parts of the country, where changes in voting practices occasionally include racial or ethnic overtones.

Kennedy said Congress engaged in "reverse engineering" in 2006 by reauthorizing a law with a formula that singles out particular states and municipalities. Citing other laws whose usefulness eventually passed, Kennedy simply said, "Times change."

Even in 2009, when the court unanimously upheld the law, Roberts warned that "things have changed in the South" and the pre-clearance requirements and coverage formula "raise serious constitutional questions."

That formula, unchanged for more than 40 years, is based on discriminatory practices and voter registration or turnout data from 1964.

Under that formula, Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia emerged with what those states now consider a scarlet letter. The law was reauthorized in 1970, 1975, 1982 and 2006 with only minor changes — most recently by votes of 98-0 in the Senate and 390-33 in the House.

Bert Rein, the lawyer representing Shelby County, Ala., argued that "Congress cannot arbitrarily pick out states. Congress has to treat each state with equal dignity."

A 'racial entitlement'

Scalia contended that the lopsided votes reveal only that lawmakers cannot vote against a law universally hailed as having reduced racial discrimination in the last half of the 20th century. That, he said, is "a phenomenon that is called perpetuation of racial entitlement."

"This is not the kind of a question you can leave to Congress," he said.

But the court's four liberal justices defended Congress and said the formula singling out mostly Southern states continues to guard against new forms of voting discrimination.

"Of course this is aimed at states," Justice Stephen Breyer said. "What do you think the Civil War was about?"

The current court took its first bite into the law in 2009, ruling that a Texas water district — and any municipality, for that matter — could bail out of Section 5 by demonstrating 10 years of good behavior. More than 200 municipalities have done so since the law's inception. But the court punted on the broader question of its constitutionality.

"The historic accomplishments of the Voting Rights Act are undeniable," Roberts wrote for the court, citing voter registration and turnout levels and "unprecedented" numbers of minority elected officials.

Justice Clarence Thomas, the court's lone black member who sat customarily silent on Wednesday, made his dissatisfaction with the law known at the time.

"The extensive pattern of discrimination that led the court to previously uphold Section 5 ... no longer exists," he wrote in partial dissent. "There is no evidence that public officials stand ready, if given the chance, to again engage in concerted acts of violence, terror and subterfuge in order to keep minorities from voting."

Last year's election cycle, while lacking in violence and terrorism, did feature what civil rights groups said were efforts at electoral subterfuge. In Texas, Florida and South Carolina, the Voting Rights Act helped block photo ID laws, redistricting maps and limits on early voting that could have disadvantaged minorities.

But Shelby County Attorney Frank Ellis said after the court session that the South truly has changed and deserves to be treated the same as the rest of the nation.

"It is our hope that the court will recognize the great strides Shelby County and the other covered jurisdictions have made during the last 40 years in providing equal electoral opportunities for minorities," Ellis said.

Contributing:Video by Summer Delaney/Medill News Service

