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.
Section 5 of the VRA requires 16 states with histories of discrimination (mostly in the South) to get permission from the federal government before changing their voting procedures.
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 court’s four liberal justices, including Obama appointees Kagan and 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.
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.
The case is Shelby County, Ala., v. Holder, 12-96.