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If the Supreme Court’s more liberal justices seemed reluctant Wednesday to find that a key provision of the Voting Rights Act was no longer needed, its more conservative justices seemed just as skeptical that the formula used to determine the statute’s geographic reach is still valid.
The court’s decision in Shelby County v. Holder could dramatically alter the scope of the landmark 1965 civil rights law. Shelby County, Ala., has questioned the constitutionality of a portion of the statute that determines which areas, mainly in the South, must ask the federal government before changing voting procedures.
During a charged oral argument that extended past its allotted hour, the justices considered the county’s case and, in doing so, the process by which Congress in 2006 reauthorized the preclearance provisions for another 25 years. A ruling is expected before the court recesses at the end of June.
“There is no question that the Voting Rights Act has done enormous good,” Justice Samuel A. Alito Jr. said. “But when Congress decided to reauthorize it in 2006, why wasn’t it incumbent on Congress ... to make a new determination of coverage? Maybe the whole country should be covered. Or maybe certain parts of the country should be covered based on a formula that is grounded in up-to-date statistics.”
Shelby County and other covered jurisdictions have noted that the coverage formula still uses evidence of tactics used to limit voting and lower turnout during elections in the 1960s and 1970s; Congress opted to not tinker with that formula during the 2006 reauthorization.
The Voting Rights Act was part of President Lyndon B. Johnson’s Great Society programs. Its provisions, including two that uniquely singled out areas with a history of discrimination for pre-emptive enforcement, were intended to ameliorate a century of race-based voting discrimination that lingered after other laws failed to make meaningful inroads.
Section 4 of the statute contains a formula that determines what areas have a history of discriminating against minority voters. Section 5 requires those jurisdictions to clear any changes to their voting procedures with the Justice Department or a federal court. Both require periodic reauthorization by Congress.
Justice Antonin Scalia suggested that lawmakers had little incentive to change or vote against a politically sensitive law, noting the increasingly comfortable margins by which Congress renewed the preclearance portions of the statute in 1970, 1975, 1982 and 2006.
“I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement,” Scalia said.
“Even the name of it is wonderful: the Voting Rights Act. Who is going to vote against that?” he asked pointedly.