When the Supreme Court last scrutinized the 1965 Voting Rights Act in 2009, Justice Anthony Kennedy peered down from the bench and asked why federal rules were tougher for Alabama and Georgia than for Michigan and Ohio.
Chief Justice John Roberts pointedly added that it seemed lawyers defending the rules, which were created to protect black voters, believed that even in modern times "southerners are more likely to discriminate than northerners."
Now four years later, as the landmark law faces another challenge, the skepticism of Roberts and of Kennedy, often the decisive vote on racial dilemmas, is likely to emerge with even greater force.
In the dispute to be heard on Wednesday, the crucial issue is whether Congress may continue to require certain states, mainly in the South, to show that any proposed election-law change would not discriminate against African-American, Latino or other minority voters.
The screening provision known as Section 5 is one of the pillars of the law passed after the notorious "Bloody Sunday" on March 7, 1965, in Selma, Alabama, when state troopers attacked civil rights marchers with clubs and tear gas. The act broadly prohibited poll taxes, literacy tests and other rules depriving blacks of the franchise. In the 1960s, such measures existed throughout the nation but were especially common in the South with its legacy of slavery.
The modern relevance of the issues was underscored in the 2012 presidential election campaign when courts nationwide heard civil-rights challenges to newly adopted state voting-districts, voter identification laws, and polling-place limits, for example on hours of early voting. The most restrictive laws ended up being blocked before the November elections.
As the 2009 remarks of Kennedy, Roberts and other justices signaled, the conservative Supreme Court majority is skeptical that today's South still needs special oversight. The new case from Shelby County, Ala., is likely to come down to whether Congress documented sufficient evidence in its 2006 renewal of the law to justify treating different locales differently.
The Obama administration is defending the provision, asserting that the South still needs tough supervision. The court's ruling in one of the most closely watched cases this term could affect federal oversight of a swath of states through 2031 as well as the extent of minority participation in elections in crucial jurisdictions.
Nine designated states (and parts of seven others) must obtain federal approval before making any election-law changes, such as for voter-identification rules or in district boundaries. The nine fully covered states are Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia.
Conservative advocates and southern officials who have banded together against Section 5 say it is an archaic measure that encroaches on state sovereignty. The U.S. government, backed by civil rights groups, counters that in the case of Shelby County v. Holder that Congress has rightly continued to single out places with the worst bias.
In 2009, the Supreme Court avoided the large question about the scope of Congress's power to remedy discrimination and decided the case from Texas on narrow grounds. But Chief Justice Roberts fired a warning shot about how the court might ultimately rule when he wrote, "Things have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels."
In his brief for the Obama administration defending Section 5, U.S. Solicitor General Donald Verrilli acknowledged that "there is no question that ‘things have changed in the South' since 1965." But Verrilli stressed that Congress found that states covered by Section 5 were still resisting minority voters' "right to participate in the political process."
He pointed to a federal court's decision last year that Texas legislators had redrawn voting districts along racial lines and disadvantaged minority voters. In separate 2012 actions, judges blocked Texas from imposing a tough voter-ID rule and Florida locales from curtailing an early-voting period. Critics of Section 5 note, however, that in 2012 northern states such as Ohio and Pennsylvania tried to impose voting restrictions that were rejected by courts.
PERPETRATORS TO VICTIMS
When Congress first adopted Section 5 in 1965, it wanted to prevent places with a history of bias from continually imposing new rules that would keep blacks from the polls. As the court observed when it upheld the law against its first challenge, in 1966, Congress found case-by-case litigation costly and inadequate to stop abuses. Congress sought "to shift the advantage of time and inertia from the perpetrators of the evil to its victims," the court observed.
As Congress has repeatedly renewed Section 5, it has retained a coverage formula linked to discriminatory practices of the 1960s and early 1970s. But it has allowed jurisdictions that can show a new, clean record to "bail out" and has extended coverage beyond those states originally covered.
In Shelby County's appeal to the Supreme Court, lawyer Bert Rein says Section 5 and its coverage formula achieved their goals and that Congress failed to document in 2006 the kind of systematic obstruction that originally warranted tough scrutiny.
Still, in Alabama, the U.S. Justice Department has repeatedly and recently blocked proposed electoral changes. One 2008 incident occurred in Shelby County when the city of Calera implemented a redistricting plan that caused the one African American on the city council to lose his seat. After the Justice Department forced Calera to redraw the map with fairer lines, he won his election.
NAACP Legal Defense Fund lawyer Debo Adegbile will represent that council member, Ernest Montgomery, and other Shelby County African Americans, on Wednesday.
Adegbile was at the lectern in 2009, on behalf of African Americans in that Texas case, when Chief Justice Roberts said it appeared the message of Section 5's defenders was that "southerners are more likely to discriminate than northerners."
Adegbile said then, and insists today, that it's not that discrimination does not happen outside Section 5's covered states but that repetitive violations are concentrated in those within its scope. "Voting discrimination continues," Adegbile told Reuters in a recent interview, "particularly in Alabama, and indeed Shelby County's own recent record proves that point."