It was hardly unexpected, but early reports on today’s oral arguments in the Supreme Court indicate that Section 5 of the Voting Rights Act of 1965, which requires jurisdictions (mostly in the South) with a history of discriminatory actions “preclear” decisions that could dilute minority voting strength with the Justice Department, is indeed on the ropes. Here’s SCOTUSBlog’s Tom Goldstein:
Following through on the deep constitutional concerns stated in its prior Northwest Austin decision, a majority of the Court seems committed to invalidating Section 5 of the Voting Rights Act and requiring Congress to revisit the formula for requiring preclearance of voting changes. The vote seems quite likely to be five to four. The more liberal members pressed both the narrow argument that an Alabama county was not a proper plaintiff because it inevitably would be covered and the broader argument that there was a sufficient record to justify the current formula. But the more conservative majority was plainly not persuaded by either point. It is unlikely that the Court will write an opinion forbidding a preclearance regime. But it may be difficult politically for Congress to enact a new measure.
Adam Liptak of the New York Times adds a bit more color:
A central provision of the Voting Rights Act of 1965 may be in peril, judging from tough questioning on Wednesday from the Supreme Court’s more conservative members.
Justice Antonin Scalia called the provision, which requires nine states, mostly in the South, to get federal permission before changing voting procedures, a “perpetuation of racial entitlement.” Chief Justice John G. Roberts Jr. asked a skeptical question about whether people in the South are more racist than those in the North. Justice Anthony M. Kennedy asked how much longer Alabama must live “under the trusteeship of the United States government.”
The court’s more liberal members, citing data and history, said Congress remained entitled to make the judgment that the provision was still needed in the covered jurisdictions.
“It’s an old disease,” Justice Stephen G. Breyer said of efforts to thwart minority voting. “It’s gotten a lot better. A lot better. But it’s still there.”
Four of the nine-member court’s five more conservative members asked largely skeptical questions about the law. The fifth, Justice Clarence Thomas, did not ask a question, as is typical.
There’s not a great deal of doubt where Thomas is coming down on this case.
Goldstein’s reference to future congressional action to “cure” the VRA is one that will become important once the decision comes down, presumably at the end of this Court term. Last time the VRA was up for reauthorization in 2006, Republicans equivocated before largely getting behind the bill with the strong encouragement of the Bush administration. That was the sort of political call that today’s GOP would probably consider emblematic of Bush’s “abandonment of conservative principle,” and was also before the latest wave of voter suppression activity in states, north and south, governed by Republicans. With the sanction of the Court, VRA critics will likely pull the GOP over the brink into active opposition this time around. I doubt residual concerns about the impact on the party’s ability to compete for minority voters will inhibit conservatives much; after all, they’re convinced such voters will soon realize the only racists left are those tending the “plantation” of the Democratic Party.