Have times changed?

Supreme Court A spirited high court argument ensues in an Alabama county’s challenge to the Voting Rights Act’s unique requirements for Southern states | Emily Belz

Have times changed?

Bert Rein, the lawyer representing Shelby County, Ala., speaks to reporters following arguments before the Supreme Court.
Associated Press/Photo by Evan Vucci

WASHINGTON—Shelby County, Ala., argued to the U.S. Supreme Court Wednesday that racial discrimination problems have changed since the 1960s and Southern states should no longer have the same unique requirements when it comes to election laws. The justices seemed to agree that times have changed, but they could not agree on whether times have changed enough to drop the special provisions against discrimination in the South. 

“There isn’t anyone on this issue that doesn’t agree huge progress has been made,” said Justice Ruth Bader Ginsburg. “Discrimination continues in other ways.”

“There was a big problem,” said Justice Stephen Breyer. “It has gotten a lot better, but it is not, to some degree, cured.”

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The Voting Rights Act originally passed in 1965 as a guard against disenfranchisement of minorities through requirements like literacy tests or “poll taxes.” Under Section 5 of the act, certain states and jurisdictions with a history of discrimination must present any changes to election laws and procedures to the U.S. Department of Justice for approval, a process known as “preclearance.”

States have one option for escaping preclearance: 10 years of good behavior. The states subject to Section 5 are mostly Southern: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia. The preclearance requirement also applies to various counties in other states, including North Carolina. Shelby County is challenging the reauthorization of the Voting Rights Act in 2006, which left the formula for which states fell under Section 5 mostly unchanged. 

“Forty years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the [15th Amendment],” the 2006 reauthorization said. Shelby County sued in 2010, arguing the reauthorized formula was unconstitutional, and lost its case in both U.S. District Court and at the U.S. Court of Appeals for the District of Columbia Circuit. But its case seemed to have more possibility of success after Supreme Court arguments Wednesday. 

The arguments were spirited, with justices talking over each other with references to why the Civil War was fought and how racial discrimination manifests itself today. Lawyers could get few words in edgewise.

Justice Sonia Sotomayor was the most passionate in dressing down the lawyer for Shelby County, Bert Rein. (Rein also argued a case this term against the University of Texas at Austin’s affirmative action program.) Sotomayor said Shelby County was “the epitome of what caused the passage of this law.” If she accepted Rein’s premise that the South had changed, “your county pretty much hasn’t,” she said, listing off its Voting Rights Act violations. Rein argued that Shelby County has made massive improvements, in African-American voter registration and electing African-American legislators, but added, “We’re here to challenge the formula” that governs Southern states.

Shelby County lies north of Selma, Ala., where supporters of voting protections were beaten during a march in 1965, which hastened the passage of the Voting Rights Act.

Jesse Jackson and Rep. John Lewis, prominent figures from the civil rights movement, gathered outside the court Wednesday morning to support Section 5 and spoke about their experiences of being beaten and other mistreatment in pursuit of the law.

Regardless of Shelby County’s fitness to challenge the Voting Rights Act, a majority of the justices seemed to think that Congress had not sufficiently tailored Section 5 to the modern era when it reauthorized the act in 2006.

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 in regard to Section 5 that “current burdens … must be justified by current needs,” hinting that Congress should adjust the “current burdens.” The current formula requires preclearance for states that had some kind of voting test as of November 1968, or had a voter turnout or registration rate below 50 percent in 1964. 

“The formula seems to be working pretty well,” said Justice Elena Kagan. “All formulas are under-inclusive and all formulas are over-inclusive.” 

“No one’s contesting the effectiveness of Section 5,” said Justice Antonin Scalia. “It’s a question of, why in these states?”

“Why shouldn’t it apply everywhere in the country?” Justice Samuel Alito Jr. asked Solicitor General Donald Verrilli Jr., who was arguing in defense of Section 5.

“If you look at history … it justifies Congress making a cautious decision to keep the restraint,” said Verrilli. “Congress wasn’t writing on a blank slate in 2006.”

A central question is whether Congress in its 2006 reauthorization had sufficient evidence of discrimination to justify the continued imposition of Section 5 on the South. The justices came to the arguments prepared with their own litany of statistics to prove their points. Sotomayor talked about the number of civil rights lawsuits filed against Alabama aside from Section 5. Kagan brought up the number of lawsuits filed in states under Section 5 versus other states. Chief Justice John Roberts, taking the other side, said that the worst ratio of white-to-African-American turnout was in Massachusetts, and the best ratio was in Mississippi. He also said the highest disparity between white and African-American voter registration was in Massachusetts. 

“Is it the government’s submission that citizens in the South are more racist than citizens in the North?” asked Roberts.

“I don’t know the answer to that question,” said Verrilli. “But I know Congress found there was a continuing need [for Section 5].” 

Without Section 5, the Justice Department would still have an avenue for prosecuting states or jurisdictions that discriminate. Section 2 of the Voting Rights Act allows challenges to any election law, but it places the burden on the Justice Department to bring those cases, instead of requiring certain states to have their laws approved first. The Justice Department contended that Section 2 cases have been ineffective, and that it cannot keep up with states’ violations.

“Do you think racial discrimination in voting has ended?” Sotomayor asked Rein at the end of the arguments. 

“I think the world is not perfect,” Rein said.

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