WASHINGTON — The politically charged issue of race was before the U.S. Supreme Court on Wednesday in a case that could determine how the landmark 1965 Voting Rights Act applies to the South.
The nine justices engaged in a lively and at times contentious 70-minute exchange, with several possibly signaling their positions in what may mean a new chapter in the nation’s divided racial history. The repercussions of their eventual decision could be felt throughout the country.
“Is it the government’s submission that the citizens in the South are more racist than citizens in the North?” Chief Justice John Roberts asked in an apparently facetious question that drew gasps from the audience.
The case arose out of Shelby County, Ala., which is challenging sections of the pivotal 1965 law that prohibited discriminatory voting rules. The county brought the suit against the sections of the law that require nine mostly Southern states and portions of seven others to receive prior approval from the U.S. Department of Justice on voting procedures or anything that affects a minority group’s ability to cast ballots.
The nine states currently covered in their entirety under the contested sections are Alabama, Georgia, South Carolina, Texas, Alaska, Arizona, Louisiana, Mississippi and Virginia. The seven others are California, Florida, North Carolina, Michigan, New Hampshire, New York and South Dakota.
Several of the states are engaged in legal disputes with the Justice Department on Voting Rights Act clearance issues, such as Texas’ ongoing fight over drawing district lines.
The hearing drew well-known African-American leaders, including the Rev. Jesse Jackson, the Rev. Al Sharpton and several African-American members of Congress. Among them was the House Democrats’ assistant leader, Rep. James Clyburn of South Carolina.
The court’s ideological lines were immediately obvious as Justice Sonia Sotomayor challenged Shelby County’s attorney, Bert Rein.
“Some portions of the South have changed,” said Sotomayor, who then cited an ongoing pattern of discriminatory voting procedures in Shelby County. “Your county pretty much hasn’t. You may be the wrong party in bringing this.”
Rein argued that applying Section 5 of the law to only certain states violates the Constitution, which is based on laws being applied equally. He said that the formula to determine which jurisdictions fall under Section 5 is outdated, based on long-since discontinued literacy tests and voting registration dependent on mid-1960s data.
At the center of the case is whether the courts or Congress, which in 2006 reauthorized the Voting Rights Act for 25 years, should decide whether the prior approval requirement in Section 5 — considered by supporters to be a deterrent to discrimination — stays in place.
U.S. Solicitor General Donald Verrilli pointed out that Congress had looked at the record and approved the law by large margins. But Justice Antonin Scalia said, “I think it is attributable to a phenomenon that is called perpetuation of racial entitlement.”
Scalia said that he did not think Congress would ever change the law, but the courts should.
“Even the name of it is wonderful: The Voting Rights Act,” he said, emphasizing that politicians had no incentive to alter it. “Do you think that the right to vote is a racial entitlement in Section 5?”
Justice Elena Kagan said that deciding which states were engaged in discriminatory voting activities would be “a new power” for the judges.
“I don’t think this falls under our bailiwick,” she said.