Some Supreme Court justices indicate landmark legislation may have run its course


In an ominous note for supporters of the key provision of the Voting Rights Act, Justice Anthony Kennedy both acknowledged the measure’s vital role in fighting discrimination and suggested other important laws in U.S. history had run their course. “Times change,” Kennedy said during the fast-paced, 70-minute argument.

Kennedy’s views are likely to prevail on the closely divided court, and he tends to side with his more conservative colleagues on matters of race. The court’s liberals and conservatives engaged in a sometimes tense back-and-forth over whether there is an ongoing need in 2013 for the part of the voting rights law that requires states with a history of discrimination, mainly in the Deep South, to get approval before making changes in elections rules.

Justice Antonin Scalia called the law a “perpetuation of racial entitlement.”

Chief Justice John Roberts, a vocal skeptic of the use of race in all areas of public life, cited a variety of statistics that showed starker racial disparities in some aspects of voting in Massachusetts than in Mississippi. Then he asked the government’s top Supreme Court lawyer whether the Obama administration thinks “the citizens in the South are more racist than citizens in the North?”

Solicitor General Donald Verrilli said no.

The question, and others like it from the conservative justices, largely echoed the doubts they first expressed four years ago in a similar case that ended without resolving the constitutionality of the latest renewal of the voting rights law, in 2006. They questioned whether there remain appreciable differences between the locations covered by the law and those that aren’t. They also wondered whether there was an end in sight for a provision that intrudes on states’ rights to conduct elections and which was regarded as an emergency response to decades of state-sponsored discrimination in voting, despite the 15th Amendment’s guarantee of the vote for black Americans.

The provision shifted the legal burden and required governments that were covered to demonstrate their proposed changes wouldn’t discriminate. Another part of the voting rights law, not being challenged, allows for traditional, after-the-fact claims of discrimination in voting and applies nationwide.

The court’s four liberal justices, including Obama appointees Elena Kagan and Sonia Sotomayor, appeared uniformly to be willing to defer to the decision by Congress that more progress needs to be made before freeing states from the special federal monitoring. Those justices aggressively questioned Bert Rein, the lawyer representing Shelby County, Ala., in its challenge to the law. Sotomayor acknowledged some parts of the South had changed, but she asserted recent voting rights lawsuits in Alabama suggested that Shelby County, near Birmingham, has not made sufficient progress.


The requirement applies to the states of Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia. It also covers the California counties of Kings, Yuba and Monterey, and counties in Florida, New York, North Carolina and South Dakota, and some jurisdictions in Michigan and New Hampshire. Coverage has been triggered by past discrimination not only against blacks, but also against Native Americans, Asian-Americans, Alaska Natives and Hispanics.

Among the covered states, California, Mississippi, New York and North Carolina argue the law should be upheld.