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Voting Rights Act case: Supreme Court questioning is lively, pointed (+video)

At the US Supreme Court on Wednesday, defenders of the 1965 Voting Rights Act argued that the judiciary should defer to Congress's judgment that the law is still needed as is. Several justices indicated that they thought not.

By Staff writer / February 27, 2013

People wait in line outside the Supreme Court in Washington, Wednesday, Feb. 27, to listen to oral arguments in the Shelby County, Ala., v. Holder voting rights case.

Evan Vucci/AP

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Washington

A sharply divided US Supreme Court engaged in a lively and, at times, impassioned debate on Wednesday in a potential landmark case testing whether key portions of the 1965 Voting Rights Act should be struck down as unconstitutional.

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The 75-minute session marked the second time in four years the high court has agreed to examine the constitutionality of Sections 4 and 5 of the Voting Rights Act (VRA).

Four years ago, in 2009, the court stopped short of invalidating the measures. But the justices made clear in an 8-to-1 decision that the VRA contained constitutional deficiencies that Congress should address.

Congress didn’t.

This time around the tone was significantly more aggressive, with justices on the court’s liberal wing offering spirited defenses of the VRA in its current form and justices on the conservative wing suggesting the law is seriously flawed.

In the first comment from the bench, Justice Sonia Sotomayor ripped into Washington lawyer Bert Rein, who is representing Alabama's Shelby County in its challenge to the statute. She said 240 discriminatory voting laws had been blocked in the county under Section 5 of the VRA. Then she asked: “Why would we vote in favor of a county whose record is the epitome of what caused the passage of this law to start with?”

Later in the argument, Chief Justice John Roberts raised questions about why some states are listed as covered jurisdictions, but others with similar discrimination records are not.

The chief justice asked Solicitor General Donald Verrilli if he knew which state had the worst ratio of white voter turnout to African-American voter turnout.

“I do not,” Verrilli responded.

Massachusetts,” the chief justice replied. Massachusetts is not a covered jurisdiction under the VRA and thus does not have to submit voting changes to Washington for preapproval.

“Do you know which has the best, where African-American turnout actually exceeds white turnout?” Roberts asked.

Mississippi,” Roberts said.

Verrilli said Congress made a judgment in 2006 to keep in place the broad VRA framework that had become a successful deterrent in targeted jurisdictions.

Section 5 of the VRA requires certain jurisdictions with a history of past discrimination to obtain prior approval from Washington before enacting any voting changes.

At issue in the case, Shelby County, Alabama v. Holder (12-96), is whether Congress overstepped its authority when it voted overwhelmingly in 2006 to reauthorize the so-called preclearance procedure for another 25 years.

The preclearance procedure dates from the VRA’s passage in 1965. Congress continues to rely on the same triggering criteria from the 1960s and 1970s to determine which jurisdictions are covered by the act.

Currently nine states are fully covered. The provision also applies to counties and smaller jurisdictions in seven other states.

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