Justice Kennedy: Voting Rights Act might now be unfair

Justice Ruth Bader Ginsburg suggested by her questions that she, too, believed the law was necessary to prevent "backsliding" in voting rights. Similar sentiment was expressed by the two other liberal justices, John Paul Stevens and Stephen Breyer.

The more conservative justices appeared to believe the law has run its course. Chief Justice John Roberts declared to Katyal at one point, "Congress can impose this disparate treatment forever because of the history in the South? When do they have to stop?"

Justice Antonin Scalia asserted that much of the evidence of government bias against blacks and other minorities was documented "a long time ago" and stressed that individual victims of voting discrimination could still bring cases.

Justice Samuel Alito questioned evidence that some states not covered by Section 5 might have lower rates of Latino voter registration, for example, than states that are covered.

Katyal emphasized that Congress, which overwhelmingly passed the renewal, looked at a wealth of evidence. President George W. Bush signed it into law.

Also defending the 2006 VRA renewal was Debo Adegbile, of the NAACP Legal Defense and Educational Fund, which had intervened in the case.

"The pernicious nature of voting discrimination is such that small changes in the rules of the game can affect many people," Adegbile said, referring to, for example, some localities' decisions to move polling locations or tighten deadlines for filing absentee ballots.

"Is it your position that today southerners are more likely to discriminate than northerners?" Roberts asked.

"The pattern has been more repetitious violations in the covered jurisdictions," Adegbile responded.

While Obama's election was not raised Wednesday, the election of blacks in southern states was mentioned. Scalia noted that the nation's first black governor, Douglas Wilder, was elected in Virginia. He served 1990-1994.

"There have been African Americans to rise to high office throughout our history," Adegbile said, "but that occasion of a single person sitting in a seat doesn't change the experience on the ground for everyday citizens."

A ruling in the case of Northwest Austin Municipal Utility District Number One v. Holder is likely by the end of June when the court usually recesses for the summer.

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