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WASHINGTON -- Conservative justices on the Supreme Court expressed skepticism Wednesday about whether the federal government should still be requiring preclearance of voting system changes in certain places with a history of racial discrimination in elections.
Justice Antonin Scalia suggested that the continuation of Section 5 of the Voting Rights Act represented the "perpetuation of racial entitlement," saying that lawmakers had only voted to renew the act in 2006 because there wasn't anything to be gained politically from voting against it.
"Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes," Scalia said during oral argument in Shelby County v. Holder.
"Even the name of it is wonderful, the Voting Rights Act. Who's going to vote against that?" Scalia wondered. He said that the Voting Rights Act had effectively created "black districts by law."
But liberal justices argued forcefully that Section 5's preclearance requirement was still necessary and had proved to be an effective way for the Justice Department and the courts to stop discrimination at the polling place. Justice Elena Kagan said the formula "seems to be working pretty well."
Justice Sonya Sotomayor said that Shelby County, Ala., probably wasn't the right part of the country to be challenging a key provision of the Voting Rights Act.
"Some parts of the South have changed. Your county pretty much hasn't," said Sotomayor. "You may be the wrong party bringing this."
"Under any formula that Congress could devise, it would still capture Alabama," added Kagan.
Justice Anthony Kennedy, often the swing vote between the Supreme Court's liberal and conservative blocs, didn't offer progressives much hope that he would find Section 5 constitutional, saying that while the provision was necessary in 1965, this was 2013.
The case concerns Section 5 of the law, which requires many state and local governments, mostly in the South, to obtain permission, or preclearance, from the Justice Department or a federal court before making changes that affect voting. Critics of the law call the preclearance requirement a unique federal intrusion on state sovereignty and a badge of shame for the affected jurisdictions that is no longer justified.
Congress has 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.
Should the court rule that Congress was not entitled to rely on outdated data to decide which jurisdictions should be covered, lawmakers could in theory go back to the drawing board and re-enact the law using fresher information. In practice, given the political realities, a decision striking down the coverage formula would probably amount to the end of Section 5.
Police Chiefs and Mayors are Water Cannoning peaceful Blacks right now.Back to Jim Crow.
