Conservative Supreme Court Justices expressed strong reservations today about a key provision of the Voting Rights Act that is intended to protect the rights of minorities and suggested it could be in danger.
That section of the landmark 1965 law says that certain states, mostly in the South, must get any changes to voting regulations precleared by federal officials in Washington, D.C.
Solicitor General Donald B. Verrilli Jr. began arguments at the Court Wednesday by saying that the Voting Rights Act "made a huge difference in transforming the culture of blatantly racist vote suppression that characterized parts of this country for a century. Section 5 preclearance was the principal engine of that progress."
But Chief Justice John Roberts expressed concern that Congress, when reauthorizing the law in 2006 for 25 more years, used an outdated "coverage formula" that singled out only a few states, mostly in the South. He asked Verrilli: "Is it the government's submission that the citizens in the South are more racist than citizens in the North?"
The jurisdictions covered under the law include Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia, as well as portions of California, Florida, Michigan, New Hampshire, New York, North Carolina and South Dakota.
Justice Samuel Alito said, "There's no question that the Voting Rights Act has done enormous good." But he said that when Congress reauthorized it, it should have considered a new determination of which states should be covered. "Maybe the whole country should be covered. Or maybe certain parts of the country should be covered based on a formula that is grounded in up-to-date statistics, " he said.
Justice Antonin Scalia spoke at length about the fact that the 2006 congressional vote to reauthorized the act was nearly unanimous.
"I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.
"And I am fairly confident it will be re-enacted in perpetuity unless a court can say it does not comport with the Constitution," he continued. "You have to show, when you are treating different states differently, that there's a good reason for it. "
Scalia said, "That's the concern that those of us who have some questions about this statute have. It's a concern that this is not the kind of a question you can leave to Congress."
After the dialogue, Roberts gave Verrilli an extra five minutes. "Thank you," Verrilli said, smiling. "I may need it for that question."
"We are talking about the enforcement power that the Constitution gives to the Congress to make these judgments to ensure protection of fundamental rights," said Verrilli.
He added that he thought it would be "extraordinary" to look behind the judgment of Congress on the basis of "that sort of motive analysis."
Scalia's question bothered Justice Sonia Sotomayor who later asked a lawyer for Shelby County, Ala., "Do you think Section 5 was voted for because it was a racial entitlement?" And she also said, "Do you think that racial discrimination in voting has ended and there is none anywhere? "
Sotomayor, one of the four liberals on the court, emerged as one of the most vocal defenders of the law.