High Court Hears Voting Rights Argument

The Supreme Court heard arguments Wednesday on the constitutionality of the extension of the Voting Rights Act requirement that certain states get permission from the federal government before changing their election procedures.

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From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.

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And I'm Michele Norris. The line of people wanting to get into the Supreme Court today wound around the block. They were there to see that court take up its most important case of the term - a challenge to the Voting Rights Act. First enacted in 1965, the law has been widely credited with breaking down barriers to minority voting and spurring the election of minority office holders. It's been extended four times, most recently in 2006 when Congress approved it without dissent in the Senate and only 33 no votes in the House.

NPR's legal affairs correspondent, Nina Totenberg, reports on a case so notable, the high court released audio of the oral arguments for the first time in the current term.

NINA TOTENBERG: The Supreme Court has repeatedly upheld the Voting Rights Act, but today, with the court's composition changed, the law looked to be on a constitutional precipice with Justice Anthony Kennedy likely to cast the decisive vote to uphold or invalidate it. The court that heard today's challenge is far more conservative than the courts that in the past upheld the act. Chief Justice John Roberts, who as a young lawyer in the Reagan administration spearheaded opposition of the law, was overtly hostile today.

Justice Antonin Scalia, usually a big proponent of deferring to Congress, suggested today that the overwhelming congressional vote to extend the law should be given little deference because it was mere politics. And Justice Samuel Alito repeatedly asked why the law should not apply to the whole country. The provision at issue in today's case is the section of the law known as section 5, which designates nine states, most of them in the deep south, and parts of another seven states, including New York and California, for special treatment because of their history of discriminatory tactics and suppressed minority voter registration.

When officials in any one of those areas want to change voting procedures, they must get approval in advance from the Justice Department. While most jurisdictions actually have embraced the law, some object to it as both a scarlet letter of sorts and a violation of their sovereignty.

Representing the challenges today, lawyer Gregory Coleman says the law is no longer justified in what he called a new day. Justice Souter noted that Congress had made numerous findings about continued discrimination in voting.

Justice DAVID SOUTER (Supreme Court): I don't understand, with a record like that, how you can maintain, as a basis for this suit, that things have radically changed.

TOTENBERG: Lawyer Coleman responded that Congress had not updated the data it uses for determining which jurisdictions are covered.

Mr. GREGORY COLEMAN (Lawyer): It is simply irrational for Congress to go back and say the Voting Rights Act in 1965 was intended to make sure that minority voters can register and vote and that's going to be our number one priority. And in determining who's going to be covered under the 2006 amendment, we're going to use the same data from the 1964 election.

TOTENBERG: Justice Breyer pointed to a lot of recent data Congress relied on. Justice Ginsburg observed that some discrimination may be less blatant today, but subtle discrimination is still discrimination. And Justice Souter said it seemed to him that in the real world if the pre-clearance safeguard was taken away, recalcitrant jurisdictions would just go back to enacting discriminatory measures - everything from switching polling places to changing election dates to changing boards from elective to appointive. Lawyer Coleman maintained that the evidence Congress relied on is inadequate.

Mr. COLEMAN: It does not justify a presumption that state and local officials in these areas are so racist that they cannot be relied on to pass and enforce fair...

Unidentified Man: They couldn't be relied...

TOTENBERG: Defending the law, Deputy Solicitor General Neal Katyal noted that Congress held 21 days of hearings, compiled 16,000 pages of testimony and found that while the Justice Department objected to less than one percent of the applications for pre-clearance, the measure acted as a sword of Damocles that prevented a lot of bad behavior. Chief Justice Roberts called that an elephant whistle rationale.

Chief Justice JOHN ROBERTS (U.S. Supreme Court): You know, I have this whistle to keep away the elephants. You know, well, that's silly, well, there are no elephants, so it must work.

TOTENBERG: Katyal replied that the courts in Congress use such rationales all the time. For example, only four federal wiretap warrants were rejected by the courts, out of 17,500 requests. Yet, nobody suggests there's no need for the procedure. Justice Kennedy, the likely decisive vote in the case, worried repeatedly about state sovereignty. Why should Georgia be treated differently from Ohio?

Justice ANTHONY KENNEDY (U.S. Supreme Court): The government of the United States is saying that our states must be treated differently. And you have a very substantial burden if you're going to make that case.

Mr. NEAL KATYAL (Deputy Solicitor General): What Congress has historically done ever since the inception of the Voting Rights Act is target those states where discrimination is so rooted that it is hard to get rid of.

TOTENBERG: Katyal went to, in his words, caution the court not to repeat the mistakes it made after Reconstruction, when in the wake of the Civil War and passage of constitutional amendments to guarantee equal treatment, blacks could vote and did hold office in large numbers in the South.

Mr. KATYAL: Things looked good and that led this court to say the era of special protection was over.

Unidentified Man: Could I ask you this question?

TOTENBERG: When the court ended the special protection, Katyal observed, the door suddenly shut to black voter participation, leaving African-Americans practically disenfranchised until passage of the Voting Rights Act. That sentiment was echoed by Debo Adegbile, representing the NAACP legal defense fund. He said that pernicious changes in voting procedures could undo all the good that's been done since 1965 when the Voting Rights Act became law. Justice Kennedy agreed the voting rights law has worked well, but he added...

Justice KENNEDY: The question is whether or not it can be justified when other states are not covered today.

TOTENBERG: Chief Justice Roberts had this question.

Chief Justice ROBERTS: Is it your position that today southerners are more likely to discriminate than northerners?

Mr. KATYAL: I think the record does reveal that discrimination in the covered jurisdictions has a repetitive form.

TOTENBERG: Justice Scalia followed up.

Justice SCALIA: ...Virginia the first state in the union to elect a black governor?

Mr. KATYAL: Yes. There have been African-Americans to rise to high office throughout our history, but it doesn't mean that voters that are trying to vote in a school board election in Louisiana are going to have an easy time of it when election officials manipulate the rules of the game to try disadvantage the minority community.

TOTENBERG: With that, the chief justice banged the gavel on the last case to be argued this term. And it seems quite clear the vote in this case would be five to four, with Justice Kennedy casting the deciding vote. In the arguments today he clearly signaled both his appreciation for what the law has accomplished in the past and his doubts about whether it's still justified.

Nina Totenberg, NPR News, Washington.

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