WASHINGTON—In oral arguments at the end of February, the conservative justices on the U.S. Supreme Court questioned a key provision of the Voting Rights Act that requires mostly Southern states to clear any election-related laws or changes with the U.S. Department of Justice. The bigger question: How much has racism in the South changed since the 1960s and do certain Southern states continue to require special federal oversight?
“Is it the government’s submission that citizens of the South are more racist than citizens of the North?” Chief Justice John Roberts asked Solicitor General Donald Verrilli Jr. in the course of especially heated arguments.
This is the second major case in this Supreme Court term to assess how far the nation has come in racial equality. Fisher v. University of Texas at Austin, which was argued last fall and awaits a decision, concerns whether affirmative action programs continue to be permissible for college admissions.
The Voting Rights Act of 1965 was originally passed to guard against disenfranchisement of minorities through requirements like literacy tests. Under Section 5 of the act, certain states and jurisdictions with a history of that type of discrimination must present any changes to election laws and procedures to the Justice Department for approval—a process known as “preclearance.” The states subject to Section 5 are: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia. The preclearance requirement also applies to various counties in other states like North Carolina.
Shelby County, Ala., challenged the reauthorization of the Voting Rights Act in 2006, which left the formula that determines which states fall under Section 5 mostly unchanged. The county lost in both the district court and the appeals court, but its lawyers were more optimistic after the Feb. 27 Supreme Court hearing. Justice Anthony Kennedy, often the deciding vote on the court, indicated that he thought the VRA should be adapted to the modern context.
“The Marshall Plan was very good too,” Kennedy told Verrilli after he extolled the Voting Rights Act. “But times change.”
The justices had biting arguments between themselves, and the lawyers got few words in edgewise. The liberal justices argued that Shelby County and Alabama as a whole continue to discriminate in their laws, and thus are not in any position to challenge the VRA. Justice Sonia Sotomayor told Shelby County’s lawyer that even if the South had made progress, “Your county pretty much hasn’t.” The conservative justices argued that Northern states like Massachusetts had worse records on black voter turnout than Southern states, showing that the current Section 5 formula is flawed.
Outside the court, Rep. John Lewis, D-Ga., described his brutal beating as a Freedom Rider in Montgomery, Ala., in 1961, and his later mistreatments in pursuit of the Voting Rights Act. Three days after the oral arguments, during weekend commemorations of civil-rights protests in Alabama, Montgomery police chief Kevin Murphy publicly apologized to Lewis during a March 3 worship service at First Baptist Church. He handed the 13-term congressman his police badge.
“When you got off the bus in 1961, you didn’t have a friend in the police department,” Murphy told Lewis. “I want you to know that you have friends in the Montgomery Police Department—that we’re for you, we’re with you . ... This symbol of authority, which used to be a symbol of oppression, needs to be a symbol of reconciliation.”
Murphy later told MSNBC’s Rachel Maddow, “We have started to break that wall down. ... We have to continue to work at it. I don’t think that work will ever be done.”
The high court has upheld the Voting Rights Act four times since it passed in 1965, but in a 2009 challenge to the law, the court said Section 5’s “current burdens … must be justified by current needs,” hinting that Congress should adjust the “current burdens.”
The court will likely issue a decision in June.