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Justices Sharply Divided Over Voting Rights Act

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by Publius
Posted February 27, 2013, 5:37 PM

Bloomberg News reports:

The U.S. Supreme Court cast doubt on the fate of the Voting Rights Act, the landmark 1965 law that opened the polls to millions of Southern black people, in a fast-paced argument that revealed a deep divide among the justices.

In a session that went 15 minutes beyond its allotted time and featured a rare direct exchange between two justices, the Republican-appointed majority questioned the requirement that all or parts of 16 states get federal clearance before changing their voting rules. The court’s Democratic appointees voiced support for the law.

The case threatens a signature achievement of the civil rights movement, a law aimed at discrimination that kept generations of Southern blacks from voting. Together with a fight over university affirmative action, the case may make this Supreme Court term a watershed for the legal rules governing race, possibly rolling back decades-old protections. The court will rule in both cases by June.

The skeptics today included the likely swing vote, Justice Anthony Kennedy, who faulted Congress for extending the measure in 2006 while relying on a decades-old formula for determining which states were covered.

“If Congress is going to single out separate states by name, it should do it by name,” Kennedy said. Otherwise, he said Congress should point to factors that are relevant today. “And Congress just didn’t have the time or energy to do this. It just re-enacted it.”

Chief Justice John Roberts similarly suggested he was poised to strike down the so-called preclearance requirement. Roberts asked U.S. Solicitor General Donald Verrilli whether the government’s position was “that the citizens in the South are more racist than citizens in the North.” Verrilli said that wasn’t the government’s contention.

The Justice Department has used the preclearance requirement, also known as Section 5, to object to more than 2,400 state and local voting changes since 1982. The Obama administration last year invoked Section 5 in stopping Republican-backed voter-identification laws in Texas and South Carolina from going into effect.

A separate section of the law, known as Section 2, allows lawsuits over voting discrimination nationwide and isn’t affected by the high court case. Civil-rights advocates say that type of after-the-fact enforcement isn’t enough to guard against discriminatory practices.

Congress extended the law for 25 years in 2006, voting 98-0 in the Senate and 390-33 in the House. Then-President George W. Bush, a Republican, signed the measure into law.

Civil rights leaders Al Sharpton and Jesse Jackson listened to the argument today in the packed courtroom, as other supporters of the Voting Rights Act rallied on the sidewalk in front of the court.

Perhaps the sharpest exchange of the session came when Justice Antonin Scalia questioned whether the lopsided congressional vote meant anything. With his trademark sarcasm, Scalia said the evidence of Southern racism must have been “even clearer” to Congress in 2006 than in previous decades.

That prompted Justice Elena Kagan to break with court protocol and address a fellow justice by name.

“That sounds like a good argument to me, Justice Scalia,” she said. “It was clear to 98 senators, including every senator from a covered state, who decided that there was a continuing need for this piece of legislation.”

“Or decided that perhaps they’d better not vote against it,” Scalia responded, without giving the lawyer at the podium a chance to weigh in.

Scalia later said the Senate’s unanimity was “very likely attributable to a phenomenon that is called perpetuation of racial entitlement.”

He added, “Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.” . . .

Last year, the Federalist Society produced a podcast on the subject "Is Section 5 of the Voting Rights Act Constitutional?" You can listen to it here.

  • Ms. Nancy Abudu, Staff Counsel, The American Civil Liberties Union's Voting Rights Project
  • Mr. Hans von Spakovsky, Senior Legal Fellow, The Heritage Foundation's Center for Legal and Judicial Studies
  • Moderator: Mr. Roger Clegg, President and General Counsel, The Center for Equal Opportunity
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society
  • - See more at: http://www.fed-soc.org/publications/detail/is-section-5-of-the-voting-rights-act-constitutional-podcast#sthash.rHltmZAn.dpuf

 

  • Ms. Nancy Abudu, Staff Counsel, The American Civil Liberties Union's Voting Rights Project
  • Mr. Hans von Spakovsky, Senior Legal Fellow, The Heritage Foundation's Center for Legal and Judicial Studies
  • Moderator: Mr. Roger Clegg, President and General Counsel, The Center for Equal Opportunity
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society
  • - See more at: http://www.fed-soc.org/publications/detail/is-section-5-of-the-voting-rights-act-constitutional-podcast#sthash.rHltmZAn.dpuf

 

Is Section 5 of the Voting Rights Act Constitutional? - See more at: http://www.fed-soc.org/publications/detail/is-section-5-of-the-voting-rights-act-constitutional-podcast#sthash.rHltmZAn.dpuf
Is Section 5 of the Voting Rights Act Constitutional? - See more at: http://www.fed-soc.org/publications/detail/is-section-5-of-the-voting-rights-act-constitutional-podcast#sthash.rHltmZAn.dpuf
Is Section 5 of the Voting Rights Act Constitutional? - See more at: http://www.fed-soc.org/publications/detail/is-section-5-of-the-voting-rights-act-constitutional-podcast#sthash.rHltmZAn.dpuf

 

Is Section 5 of the Voting Rights Act Constitutional? - See more at: http://www.fed-soc.org/publications/detail/is-section-5-of-the-voting-rights-act-constitutional-podcast#sthash.rHltmZAn.dpuf

 

Is Section 5 of the Voting Rights Act Constitutional? - See more at: http://www.fed-soc.org/publications/detail/is-section-5-of-the-voting-rights-act-constitutional-podcast#sthash.rHltmZAn.dpuf

 

 

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