The section of the Voting Rights Act that requires the federal approval for changes to voting law in jurisdictions where there is a history of racial injustice at the polls could be in jeopardy, following a testy day of oral arguments in the Supreme Court that saw the justices divided down ideological lines on the Civil Rights-era legislation.
Much of the discussion focused on whether there is still a culture of racial discrimination Southern states. Shelby County lawyer Bert W. Rein started to assert that there was not before he was interrupted by Justice Sonia Sotomayor.
“Assuming I accept your premise, and there’s some question about that, that some portions of the South have changed, your county pretty much hasn't,” she said, escalating the debate.
The requirement that states, counties and cities with a history of discrimination obtain permission from the Justice Department before changing voting law is known as "preclearance."
Justice Elena Kagan also countered Rein’s claims that racial discrimination is no longer present in the South.
“You said the problem has been solved," she said. "But who gets to make that judgment really? Is it you, is it the Court, or is it Congress?”
Chief Justice John Roberts questioned Solicitor General Donald Verrilli—who argued in support of the law—about the lopsided application of the mandate to only certain portions of the country.
“Is it the government's submission that the citizens in the South are more racist than the citizens in the North?” he asked.
Justice Antonin Scalia’s was preoccupied with whether some members of Congress feared political backlash if they opposed the reauthorization of the Act in 2006. Scalia also used the term “racial entitlement,” which has been condemned by many civil rights groups.
“Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes," Scalia said. "I am fairly confident it will be reenacted in perpetuity unless a court can say it does not comport with the Constitution.”