Feb. 28 (Bloomberg) -- Racial minorities may lose protections dating back to the civil rights movement after U.S. Supreme Court arguments suggested that the justices will rewrite the legal rules governing race in America.
The court yesterday cast doubt on the fate of the Voting Rights Act, the 1965 law that opened the polls to millions of Southern blacks who had been victims of discrimination and violent intimidation. In October, the justices indicated they will cut back university affirmative action programs that go back almost as far. Both rulings are due by June.
Yesterday’s session revealed deep skepticism among the five Republican-appointed justices about the continuing need for a central Voting Rights Act provision and about Congress’ near-unanimous 2006 extension of the landmark law for 25 years.
That congressional support was “very likely attributable to a phenomenon that is called perpetuation of racial entitlement,” Justice Antonin Scalia said. “Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”
The session went 15 minutes beyond its allotted time and featured a rare direct exchange between two justices. By the end, the court left little doubt that it would be divided, with four Democratic appointees expressing support for the measure.
The dispute centers on the law’s requirement that all or parts of 16 states get federal clearance before changing their voting rules. The skeptics included the likely swing vote, Justice Anthony Kennedy, who faulted Congress for extending the measure while relying on a decades-old formula for determining which states were covered.
“If Congress is going to single out separate states by name, it should do it by name,” Kennedy said. Otherwise, he said the lawmakers should point to factors that are relevant today. “And Congress just didn’t have the time or energy to do this. It just re-enacted it.”
Chief Justice John Roberts similarly suggested he was ready to strike down the so-called preclearance requirement. Roberts asked U.S. Solicitor General Donald Verrilli, the Obama administration’s top lawyer, whether the government’s position was “that the citizens in the South are more racist than citizens in the North.” Verrilli said that wasn’t the government’s contention.
The Justice Department has used the preclearance requirement, also known as Section 5, to object to more than 2,400 state and local voting changes since 1982. Just last year, the administration invoked Section 5 in stopping Republican-backed voter-identification laws in Texas and South Carolina from going into effect.
A separate section of the law, known as Section 2, allows lawsuits over voting discrimination nationwide and isn’t affected by the high court case. Civil-rights advocates say that type of after-the-fact enforcement isn’t enough to guard against discriminatory practices.
Congress extended the law for 25 years in 2006, voting 98-0 in the Senate and 390-33 in the House. Then-President George W. Bush, a Republican, signed the measure into law.
Civil rights leaders Al Sharpton and Jesse Jackson listened to the argument yesterday in the packed courtroom, as other supporters of the Voting Rights Act rallied on the sidewalk in front of the court.
Perhaps the sharpest exchange of the session came when Scalia questioned whether the lopsided congressional vote meant anything. With his trademark sarcasm, he said the evidence of Southern racism must have been “even clearer” to Congress in 2006 than in previous decades.
That prompted Justice Elena Kagan to break with court protocol and address a fellow justice by name.
“That sounds like a good argument to me, Justice Scalia,” she said. “It was clear to 98 senators, including every senator from a covered state, who decided that there was a continuing need for this piece of legislation.”
“Or decided that perhaps they’d better not vote against it,” Scalia responded, without giving the lawyer at the lectern a chance to weigh in.
The three women on the court -- Kagan and Justices Ruth Bader Ginsburg and Sonia Sotomayor -- all defended Section 5 in the argument’s opening minutes. Sotomayor pointed to recent Voting Rights Act violations in Shelby County, Alabama, the jurisdiction that sued to challenge the preclearance rule.
Even if parts of the South have changed, “your county pretty much hasn’t,” she told the county’s lawyer, Bert Rein.
Sotomayor and Kagan pointed to congressional findings that the Voting Rights Act forced more than 200 changes in Alabama in the years leading up to the 2006 reauthorization.
Those justices were in the minority in voicing support for the measure. Justice Samuel Alito joined Roberts, Scalia and Kennedy in questioning the law. A fifth justice, Clarence Thomas, said in 2009 that he would strike down Section 5. Thomas, as is his practice, asked no questions today.
The formula was designed to include the states with the deepest history of racial discrimination -- Alabama, Georgia, Louisiana, Mississippi, South Carolina and Virginia. Three other states -- Alaska, Arizona and Texas -- were added in the 1970s when the statute was expanded to protect “language minority” groups.
The administration also points to the law’s so-called bailout provision, which lets some areas escape coverage if they can show compliance with anti-discrimination rules. The law lets judges put other areas under the preclearance system as well.
Kennedy’s questioning suggested he viewed the latter aspect, known as the “bail-in” provision, as a reason Section 5 might no longer be necessary, at least in its current form.
“It seems to me that the government can very easily bring a Section 2 suit and as part of that ask for bail-in under Section 3,” Kennedy said.
Section 5 now governs a patchwork of jurisdictions around the country. Parts of some covered states are exempt, while selected cities and counties in California, Florida, New York, North Carolina, South Dakota, Michigan and New Hampshire are covered.
The Supreme Court suggested in a 2009 Voting Rights Act case that the preclearance requirement was on weak legal footing. Roberts wrote that “in part due to the success of that legislation, we are now a very different nation” than in 1965.
Writing for eight justices, Roberts said preclearance raised “serious constitutional questions” because it applied only to some parts of the country.
The court avoided the constitutional question in that 2009 decision, with the justices instead reaching a compromise that let more local governments seek an exemption from the preclearance rule.
The 2009 ruling marked the fifth time since its enactment that the court had considered the Voting Rights Act and left it intact.
Shelby County sued after a clash between one of its cities, Calera, and the federal government. The Justice Department said a new Calera election map would slash the percentage of registered black voters from 71 percent to 30 percent in one of the city’s five districts. At the time, that district was the only one with a black representative on the city council.
Calera later reached a settlement with the Justice Department and shifted to an at-large system, with representatives elected citywide.
The court heard arguments Oct. 10 in the affirmative action dispute over the University of Texas admissions program. Roberts and other justices questioned whether universities should continue giving preference to racial minorities, as almost all selective colleges do to ensure a diverse student body.
The case argued yesterday is Shelby County v. Holder, 12-96.
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