Voting Rights Act Takes Harsh Criticism In Court

It was a big week at the Supreme Court. The court heard arguments on a case challenging the landmark 1965 Voting Rights Act. Plus, the Obama administration filed an important brief in an upcoming gay marriage case. NPR's Nina Totenberg joins host Scott Simon for analysis.

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SCOTT SIMON, HOST:

This is WEEKEND EDITION from NPR News. I'm Scott Simon. A busy week for the U.S. Supreme Court, especially in the area of civil rights. The court heard arguments in a big voting rights case, and the Obama administration filed an important brief in an upcoming case on gay marriage. NPR's legal affairs correspondent Nina Totenberg joins us. Nina, thanks for being with us.

NINA TOTENBERG, BYLINE: My pleasure, Scott.

SIMON: Now, let's begin, if we can with the Voting Rights Act. This was a landmark civil rights law when it passed in 1965. What's this current case about?

TOTENBERG: This piece of legislation is the most effective piece of civil rights legislation in the nation's history, and it was reauthorized in 2006 by a Republican-controlled Congress with literally almost no dissent at all. But it does treat the South and some other areas of the country differently. Areas that have a history of discrimination in voting have to clear any changes in their voting procedures with the Justice Department before they go into effect. Now, a lot of states say, look, times have changed, particularly the South, we shouldn't be treated differently than other states. That's what this case is all about in a case from Shelby County, Alabama.

SIMON: And we'll explain, there are African-American elected officials all over Alabama, Mississippi, North Carolina.

TOTENBERG: That's absolutely true. But the argument on the other side has been that was the first generation of discrimination, that we couldn't get our people elected at all. Now, we're dealing with a second generation of discrimination that locks us into relatively constrained representation. And that's their argument. The argument from the South, as it were, is times have changed. And Congress didn't change the law to deal with that. It kept the same formula in place that it had in 1975, which was the last time it changed the formula.

SIMON: Based on what was reported about the oral arguments, it seems like the Voting Rights Act might be in trouble.

TOTENBERG: I'd say dead meat. I'd be wildly astonished if Section 5 of the Voting Rights Act, the free clearance section, survives this iteration of legal arguments. And just four years ago, when the court upheld the Voting Rights Act, it held its nose and said, Congress, you better take a serious look at this law and see if the formula for who's covered needs changing. And Congress, of course, didn't change it. So, it was pretty hostile questioning from the conservative wing of the court. And that's five justices I could count pretty clearly.

SIMON: A lot has been written from the questions that came from Justice Scalia.

TOTENBERG: Well, Justice Scalia drew quiet gasps in the courtroom, which are pretty rare, when he suggested that the reason that there was almost no dissent in Congress on reauthorizing the law is that it was essentially so politically incorrect to be against the Voting Rights Act that nobody had any interest in being against it, and that therefore the court shouldn't really defer to Congress. And he said this is a perpetuation of racial entitlement. And using the phrase racial entitlement to apply to the right to vote surprised some people.

SIMON: And other big issue before the court: same-sex marriage. Two cases are coming up later this month. What's the significance of the brief that the Obama administration have filed?

TOTENBERG: Well, you know, the president has moved his own position from - originally in his life as a presidential candidate or president, he basically said I'm personally for gay marriage but leave it up to the states. In this brief, which I'm told he personally supervised, he has come almost full circle but not quite. He's saying gay people should have the same rights to marry as anybody else, but he doesn't go so far as to say it's a fundamental constitutional right. And because this case comes from California and the court only has to decide a case about California, he points the court in the direction of doing that. And the subtle message here is eventually these laws all over the country we think shouldn't survive, but for now let's do this a bit slowly so we don't get everybody in a complete fit.

SIMON: NPR legal affairs correspondent Nina Totenberg. Thanks so much, Nina.

TOTENBERG: Thank you.

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