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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.

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The law has been called the most effective civil rights measure in US history. But jurisdictions long subject to its provisions complain that they are being unfairly singled out on the basis of an outdated formula fashioned by Congress back in the 1960s and 1970s, when racial discrimination in voting was a significantly larger problem.

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The Obama administration and an array of civil rights groups are urging the court to uphold the law as well as the existing coverage formula.

Shelby County argues that the law is outdated, overbroad, and must be struck down.

At one point, Justice Samuel Alito suggested to the solicitor general that perhaps Congress should impose Section 5 coverage on the entire country.

Verrilli responded that Congress relied in part on statistics showing a higher rate of voting rights litigation in the existing covered jurisdictions.

Justice Alito also asked about the fact that Congress relied on a 46-year-old formula to determine in 2006 which states would continue to be subject to Section 5 enforcement and which would not.

Shortly after the VRA was passed it was immediately challenged in court. The Supreme Court upheld the law and its Section 5 coverage formula in a 1966 decision.

Alito asked the solicitor general if he believed the Supreme Court in 1966 would have upheld the Voting Rights Act if it had been based on voting statistics from 1919 – 46 years earlier.

“No,” Verrilli answered. But he noted that the high court had upheld the law four times since its passage. He said courts should defer to the judgment of Congress in such matters.

Several times the solicitor general mentioned that Congress reauthorized the VRA with wide margins of support.

It prompted Justice Antonin Scalia to deliver a soliloquy on why no US senator would want to vote “no” on the reauthorization of a law called the Voting Rights Act. “This court doesn’t like to get involved in racial questions such as this one. It is something that can be left to Congress,” he said.

But as the VRA came up for reauthorization in 1970, 1975, 1982, and then 2006, the number of senators voting against the measure declined until all opposition disappeared in 2006. Why is that? Justice Scalia asked. “I don’t think it is attributable to the fact that it is so much clearer now that we need this,” he said. “I think it is very likely attributable to a phenomenon called perpetuation of racial entitlement.”

“I don’t think there is anything to be gained by any senator to vote against continuation of this act,” Scalia said. “And I am fairly confident it will be reenacted in perpetuity unless a court can say it does not comport with the Constitution.”

Scalia added: “You have to show when you are treating different states differently that there’s a good reason for it.”

That’s the concern, Scalia said. “This is not the kind of question you can leave to Congress,” he added. “There are certain districts in the House [of Representatives] that are black districts by law.”

The comments were delivered to a packed courtroom that included many of nation’s civil rights leaders, including US Rep. John Lewis (D) of Georgia and the Rev. Jesse Jackson.

Scalia’s comment was directed at the solicitor general. Verrilli replied that enactment of the VRA involved Congress’s power under the Constitution to enforce fundamental rights. He said the court should show deference to the judgments of Congress on such issues.

A decision is expected by June.

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