In the courtroom as SCOTUS considers the future of the Voting Rights Act

I attended oral argument on Wednesday in Shelby County v. Holder, the case challenging the Section 5 “pre-clearance” provision of the landmark Voting Rights Act. Common Cause joined in filing an amicus brief to the Supreme Court in support of upholding the law. Keep in mind: the Supreme Court has affirmed the constitutionality of Section 5 four times before — in 1966, 1973, 1980, and 1999. This is far from a matter of first impression to the nation’s highest court.

(You can read a summary of our brief here, an explanation of why we still need Section 5 here and great SCOTUSBlog coverage of the case here.)

As a reminder, Section 5 requires “covered jurisdictions” with a history of severe discrimination to seek approval from the federal government before changing their voting practices or procedures. The law protects American voters from unjust efforts to make it harder for them to vote, and requires some specific jurisdictions to bear the burden of proving why their changes to election administration procedures will not unjustly discriminate against certain voters. Congress established a formula to determine which jurisdictions are “covered,” and reauthorized the formula in 2006 for another 25 years, just as it did in 1982.

Shelby County, Alabama has taken this case all the way to the Supreme Court because it thinks this section of the Voting Rights Act is unconstitutional.

The courtroom was filled to capacity with members of the public, scores of reporters and rows upon rows of attorneys. Congressman John Lewis, the civil rights icon who was nearly beaten to death marching for the right to vote in Alabamain the 1960s, sat with other Members of Congress. Joining him was Martin Luther King III, the oldest living child of the national hero.

At 10:00 a.m. sharp, the justices appeared from behind the heavy curtains and took the bench.

Questioning was sharp. Justice Sonia Sotomayor started asking about the appropriateness of Shelby County as the party challenging the Voting Rights Act, given Section 5’s role in protecting Shelby County residents from over 240 proposed changes in voting laws. Isn’t Shelby County the wrong party to bring this case, she asked, given that it is “the epitome of what caused passage of this law to start with?” Shelby County responded that it has made vast improvements, but Congress irrationally held it to old and outdated standards.

The argument focused most particularly on whether Congress could continue to rely on data from the 1970s in determining whether to extend the Voting Rights Act. Justices Kagan, Ginsburg and Breyer explained in their questions that no one doubts that there’s been progress in battling discrimination, but said Congress decided as recently as 2006 — in 15,000 pages of record compiled over the course of 21 hearings – that discrimination was still egregious in the covered jurisdictions, and much more so than in non-covered jurisdictions. Thus, they asserted, Congress should be afforded due deference when it exercised its 14th and 15th Amendment powers to protect the vote and extend the law’s life. As Breyer said, Congress identified in the Voting Rights Act a remedy for the disease of discrimination that was far more prevalent in some regions of the country than others. And while the disease is not as malignant as it was fifty years ago — Congress decided to keep the remedy, backed its decision up with an exhaustive record, and decided not to “change horses mid-stream.”

By far, one of the most disturbing questions came from Justice Antonin Scalia. He worried that without court intervention, the Voting Rights Act would live on forever because of a “perpetuation of racial entitlement.”

As often happens during oral argument, Justice Sotomayor appeared to respond to Justice Scalia by asking a question of her own of Shelby County’s attorney: “Do you think the right to vote is a racial entitlement in Section 5?” The attorney failed to answer the question directly.

Although I’d caution against putting too much stock in predicting how the Court will ultimately rule, the questions indicated a hostility to the law among the five conservative justices. Whether there are five votes to completely strike down Section 5, or merely to strike down the formula used to determine which states and counties can be considered “covered jurisdictions” is something that the justices will hash out in the drafting of the Court’s opinion. But the skepticism in the questions of Chief Justice John Roberts, and Justices Scalia, Kennedy and Samuel Alito was more than apparent. Chief Justice Roberts tipped his hand most recently in a 2009 case that considered a different question about the Voting Rights Act, in Northwest Austin Municipality District v. Holder. He said then “the coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions.”

Congress disagrees, of course.

An opinion in Shelby County v. Holder is expected before the Court recesses for the summer in June.