Washington — Justice Antonin Scalia framed the landmark 1965 Voting Rights Act as a perpetual entitlement yesterday as the Supreme Court heard the case of Shelby County, Alabama v. Holder to determine the constitutionality of Section 5 of the act.
“Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes,” said Justice Scalia.
Justice Scalia, who remained relatively quiet during oral arguments delivered by attorney Bert Wein, council representing the petitioner, became animated as the Department of Justice’s Solicitor General Donald Verrilli gave the rebuttal.
Verrilli argued the 2006 congressional renewal of Section 5, which requires targeted districts to seek permission from congress or a federal court before changing any voting laws, was still justified.
“History remains relevant. What Congress did was make a cautious choice in 2006 that given the record before it and given the history, the more prudent course was to maintain the deterrent and constraining effect of Section 5,” Verrilli said. “What it protects is a right of fundamental importance that the Constitution gives Congress the express authority to protect through appropriate legislation.”
The Future of the VRA
Does history remain relevant? This is the question the Supreme Court wrestled with as it considered iwhether the preclearance formula in Section 5, to which many southern districts have been subjected for decades, is still a valid remedy to deter discrimination.
In 1965, amidst political and social turmoil, the Voting Rights Act targeted specific voting districts, particularly in the south, where discrimination was rampant. For decades Section 5 has proven to be an effective measurment to ending blatant civil rights abuses, such as implementing literacy tests as a prerequisite to vote. However, has it kept up with what Justice Ginsberg called “second generation devices” used to discriminate around the country?
Addressing the court, Wein said, “We are here to challenge this formula because in and of itself it speaks to old data, it isn’t probative with respect to the kinds of discrimination that Congress was focusing on and it is an inappropriate vehicle to sort out the sovereignty of individual States.”
Justice Alito, not convinced of with the validity of Section 5, weighed in. “Maybe certain parts of the country should be covered based on a formula that is grounded in up-to-date statistics,” he said.
He continued playing devil’s advocate asking council why the whole country isn’t subject to Section 5.
In June the case will be brought before Supreme Court again for a final decision.
Justice Breyer seems to be clear in his opinion. “This is a question of renewing a statute that, by in large, has worked,” he said. “It’s an old disease. It’s gotten better but its still there. The old disease is discrimination under the 15th amendment.”
The complete transcript for this court case can be read at http://www.supremecourt.gov.