In the first day of arguments for a case challenging the Voting Rights Act of 1965, the U.S. Supreme Court indicated it was hostile to one of the law's key provisions.
The case, Shelby County v. Holder, involves a section of the Voting Rights Act that mandates federal oversight of places with a history of discrimination against minorities.
At issue is Section 5 of the act, which requires certain places, most of them in the South, to submit their election-law changes to the federal government for approval, in order to ensure they are not discriminatory.
The attorney for Shelby County, Bert Rein, argued that this list of "pre-clearance" areas was unfair—just because some places discriminated in the 1960s doesn't mean they currently do—and that the criteria for the list was outdated.
Supreme Court Justice Anthony Kennedy, reportedly the swing vote in the case, seemed critical of the idea that only those on the list be subjected to "pre-clearance." Kennedy first asked if pre-clearance should be applied nationwide. When Solicitor General Donald Verrilli began to say no, Kennedy emphasized that this was due to states' rights.
"There is a federalism interest in each state being responsible to ensure that it has a political system that acts in a democratic and a civil ... and a constitutional way," Kennedy said. "If Alabama wants to have monuments to the heroes of the Civil Rights Movement, if it wants to acknowledge the wrongs of its past, is it better off doing that if it's an own independent sovereign or if it's under the trusteeship of the United States government?"
This "pre-clearance" provision, and the Voting Rights Act as a whole, originally aimed to end laws that kept blacks from voting. The act outlawed poll taxes and literacy tests, and created the provision to prevent places with histories of discrimination from using more subtle methods to limit minority voting power.
The act was extended by Congress almost unanimously in 2006. Rein and the plaintiffs believe this extension trampled on states' rights and doubled down on the idea that the South is more racist than the rest of the country.
Myrna Perez of the Brennan Center for Justice, which filed an Amicus Curiae brief in the case, says the act was not extended to punish certain areas for past discretions, but to fix potential areas where problems could arise.
"Congress is trying to combat discrimination in those places where it is most deeply rooted," Perez says. "They're narrowly targeting their power in order to be most respectful of states' rights."
Some of the court's conservative justices, including Justice Antonin Scalia, focused on the criteria that determined who makes it on the pre-clearance list.
"It's sort of extraordinary to say Congress can just pick out, we want to hit these eight states," Scalia said. "It doesn't matter what formula we use, so long as we want to hit these eight states, that's good enough and that makes it constitutional. I doubt that that's true."
Conservative observers have also made the argument that the list is outdated.
"What (the Voting Rights Act) did was develop a formula based on voting statistics from the 1964 presidential election. There are no modern statistics relevant to the analysis," says Joshua Thompson, an attorney with the Pacific Legal Foundation, which also filed an Amicus Curiae brief. "The sky is not going to fall if Congress determines a new coverage formula."
Perez and those in favor of keeping Section 5 respond by pointing to the so-called "bailout" provision of the act, which allows jurisdictions that exhibit good behavior—no reports of any actions deemed discriminatory for 10 years—to take themselves off the pre-clearance list.
Shelby County, which argued that past behavior was irrelevant, remains on the list because of an incident in 2008. That year, the city leaders of Calera, Ala. implemented a redistricting plan that led to the city's only African-American city council member, Ernest Montgomery, to lose his seat. After the Justice Department threw out the election results and forced the city to draw a more equitable district map, Montgomery won his seat back.