By Richard Wolf
Conservative justices who hold a slim majority on the Supreme Court expressed grave doubts Wednesday that the landmark Voting Rights Act of 1965 -- the crowning achievement of the civil rights movement -- remains constitutional nearly a half century later.
The justices who could be the swing votes in an eventual ruling suggested that an outdated formula built into the law now discriminates against the South, much as Southern states discriminated against black voters by erecting barriers such as poll taxes and literacy tests.
"Is it the government's submission that the citizens in the South are more racist than the citizens in the North?" Chief Justice John Roberts asked Solicitor General Donald Verrilli, who argued that the law should remain intact. Roberts noted that Massachusetts has the worst black turnout in elections when compared with whites -- and Mississippi the best.
Although the more liberal justices defended Section 5 of the law, which requires all or parts of 16 states to clear any voting changes with the federal government, at times the die appeared cast inside the marble courtroom. That could mean a decision by June rendering that provision unconstitutional or sending it back to Congress.
The dramatic argument played out inside a packed courtroom and with hundreds of civil rights activists demonstrating in front of the court in hopes of saving the law as a bulwark against continued voting discrimination. Ironically, even before the 75-minute argument ended, President Obama and congressional leaders were unveiling a statue of Rosa Parks across the street in the U.S. Capitol.
The voting rights case is sandwiched between several other civil rights cases in a Supreme Court term that could become even more consequential than the previous one, when the court upheld Obama's health care law by the slimmest of margins and shakiest of reasons.
The justices already have heard and are on the verge of deciding a case challenging the use of racial preferences in college admissions, a widespread practice among both private and public universities. And next month, they will hear challenges to California's ban on same-sex marriage and a federal law denying benefits to legally married gay and lesbian couples.
The Voting Rights Act itself isn't challenged in Shelby County v. Holder, the case from Alabama that came before the high court Wednesday. Regardless of the justices' decision this spring, the law still will provide for legal challenges to voting changes deemed discriminatory in any state.
What's on the chopping block is Section 5, the backbone of the law, under which nine mostly Southern states with a history of racial discrimination dating to the 1960s -- and some municipalities in seven others -- must get federal clearance for any changes in voting procedures.
The provision faced two major challenges in court -- that its treatment of the South is outdated in light of racial progress there, and that the targeted states and municipalities no longer are substantially different from other parts of the country, where changes in voting practices occasionally include racial or ethnic overtones.
Justice Anthony Kennedy, considered the swing vote on the court in this case as in so many others, said Congress engaged in "reverse engineering" in 2006 by reauthorizing a law with a formula that singles out particular states and municipalities. Citing other laws whose usefulness eventually passed, Kennedy said simply, "Times change."
Even in 2009, when the court unanimously upheld the law, Roberts had warned that "things have changed in the South" and the pre-clearance requirements and coverage formula "raise serious constitutional questions." That formula, unchanged for more than 40 years, is based on discriminatory practices and voter registration or participation data from 1964.
Under that formula, Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia emerged with what those states now consider a scarlet letter. The law was reauthorized in 1970, 1975, 1982 and 2006 with only minor changes -- most recently by votes of 390-33 in the House and 98-0 in the Senate.
Justice Antonin Scalia quipped that the lopsided votes only show that lawmakers are scared to vote against a law universally hailed as having reduced racial discrimination in the last half of the 20th century. He called it "a phenomenon that is called perpetuation of racial entitlement."
"This is not the kind of a question you can leave to Congress," he said.
But the court's four liberal justices defended Congress' actions and said the formula that singles out mostly Southern states continues to guard against new forms of voting discrimination.
"Of course this is aimed at states," Justice Stephen Breyer said. "What do you think the Civil War was about?"
The current court took its first bite into the law in 2009, ruling that a Texas water district -- and any municipality, for that matter -- could bail out of Section 5 by demonstrating 10 years of good behavior. More than 200 municipalities have done so since the law's inception. But the court punted on the broader question of its constitutionality.
"The historic accomplishments of the Voting Rights Act are undeniable," Roberts wrote for the court, citing voter registration and turnout levels and "unprecedented" numbers of minority elected officials.
But Justice Clarence Thomas, the court's lone black member who sat customarily silent on Wednesday, made his dissatisfaction with the law known at the time.
"The extensive pattern of discrimination that led the court to previously uphold Section 5 ... no longer exists," he wrote in partial dissent. "There is no evidence that public officials stand ready, if given the chance, to again engage in concerted acts of violence, terror and subterfuge in order to keep minorities from voting."
Last year's election cycle, while lacking in violence and terror, did feature what civil rights groups said were state efforts at electoral subterfuge. In Texas, Florida and South Carolina, the Voting Rights Act helped block photo ID laws, redistricting maps and limits on early voting that could have disadvantaged minorities.
But Edward Blum, director of the Project on Fair Representation, which solicited the lawsuit from Shelby County, argued that such laws "exist to a greater degree outside those covered jurisdictions than they do inside the jurisdictions."
The challenge reached the high court with two lower court strikes against it. In the most recent decision, the U.S. Court of Appeals for the D.C. Circuit ruled last May that the coverage formula "is not perfect, but the fit was hardly perfect in 1965."
The Obama administration's brief warned the court not to mess with Congress' legislative authority. "Invidious racial discrimination is the most pernicious form of governmental discrimination prohibited by the Constitution," Verrilli wrote. That puts Congress "at the zenith of its constitutional authority."