Voting Procedures: A lawyer for the NAACP Legal Defense and Educational Fund talks about arguing in favor of the Voting Rights Act at the Supreme Court. 
 
 WASHINGTON — A central provision of the Voting Rights Act of 1965 may be in peril, judging from tough questioning on Wednesday from the Supreme Court ’s more conservative members. 
 
 If the court overturns the provision, nine states, mostly in the South, would become free to change voting procedures without first getting permission from federal officials. 
 
 In a vivid argument in which the lawyers and justices drew varying lessons from the legacies of slavery, the Civil War and the civil rights movement, the court’s conservative wing suggested that the modern South had outgrown its troubled past and that the legal burdens on the nine states were no longer justified. 
 
 Chief Justice John G. Roberts Jr. asked skeptically whether “the citizens in the South are more racist than citizens in the North.” Justice Anthony M. Kennedy, whose vote is probably crucial, asked whether Alabama today is an “independent sovereign” or whether it must live “under the trusteeship of the United States government.” 
 
 Justice Antonin Scalia said the law, once a civil rights landmark, now amounted to a “perpetuation of racial entitlement.” 
 
 That remark created the sharpest exchange of the morning, with Justice Sonia Sotomayor on the other end. “Do you think that the right to vote is a racial entitlement?” she later asked a lawyer challenging the law, with an edge in her voice that left little doubt she was responding to Justice Scalia’s statement. “Do you think that racial discrimination in voting has ended, that there is none anywhere?” 
 
 The outcome of the case will most likely remain in doubt until the end of the court’s current term, in June. Many legal observers predicted that the justices would overturn part of the voting law in 2009, when the court had the same conservative-leaning majority, only to be proven wrong. 
 
 One important change, however, is that Chief Justice Roberts suggested in the 2009 ruling that Congress update its formula to determine which parts of the country should remain subject to the law. Congress has not done so. 
 
 The question at the heart of Wednesday’s argument was whether Congress, in reauthorizing the provision for 25 years in 2006, was entitled to use a formula based on historic practices and voting data from elections held decades ago. 
 
 Should the court strike down the law’s central provision, it would be easier for lawmakers in the nine states to enact the kind of laws Republicans in several states have recently advocated, including tighter identification standards. It would also give those states more flexibility to move polling places and redraw legislative districts. 
 
 The four members of the court’s liberal wing, citing data and history, argued that Congress remained entitled to make the judgment that the provision was still needed in the covered jurisdictions. The law passed the Senate unanimously and House overwhelmingly, by a vote of 390 to 33 in 2006. 
 
 “It’s an old disease,” Justice Stephen G. Breyer said of efforts to thwart minority voting. “It’s gotten a lot better. A lot better. But it’s still there.” 
 
 Justice Kennedy said that history taught a different lesson, referring to the reconstruction of Europe after World War II. “The Marshall Plan was very good, too,” he said. “But times change.” 
 
 Justice Breyer looked to a different conflict. 
 
 “What do you think the Civil War was about?” he asked. “Of course it was aimed at treating some states differently than others.” He also said that the nation lived through 200 years of slavery and 80 years of racial segregation. 
 
 Debo P. Adegbile, a lawyer with the NAACP Legal Defense and Educational Fund, which joined the government in defending the law, echoed that point. “This statute is in part about our march through history to keep promises that our Constitution says for too long were unmet,” he said. 
 
 The law was challenged by Shelby County, Ala., which said that its federal preclearance requirement, in Section 5 of the law, had outlived its usefulness and that it imposed an unwarranted badge of shame on the affected jurisdictions. 
 
 The county’s lawyer, Bert W. Rein, said that “the problem to which the Voting Rights Act was addressed is solved.” ||||| She said the focus of the Voting Rights Act had properly changed from “first-generation barriers to ballot access” to “second-generation barriers” like racial gerrymandering and laws requiring at-large voting in places with a sizable black minority. She said the law had been effective in thwarting such efforts. 
 
 The law had applied to nine states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia — and to scores of counties and municipalities in other states, including Brooklyn, Manhattan and the Bronx. 
 
 Chief Justice Roberts wrote that Congress remained free to try to impose federal oversight on states where voting rights were at risk, but must do so based on contemporary data. But the chances that the current Congress could reach agreement on where federal oversight is required are small, most analysts say. 
 
 Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined the majority opinion. Justice Ginsburg was joined in dissent by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. 
 
 The majority held that the coverage formula in Section 4 of the Voting Rights Act, originally passed in 1965 and most recently updated by Congress in 1975, was unconstitutional. The section determined which states must receive clearance from the Justice Department or a federal court in Washington before they made minor changes to voting procedures, like moving a polling place, or major ones, like redrawing electoral districts. 
 
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 Section 5, which sets out the preclearance requirement, was originally scheduled to expire in five years. Congress repeatedly extended it: for five years in 1970, seven years in 1975, and 25 years in 1982. Congress renewed the act in 2006 after holding extensive hearings on the persistence of racial discrimination at the polls, again extending the preclearance requirement for 25 years. But it relied on data from the 1975 reauthorization to decide which states and localities were covered. 
 
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 The current coverage system, Chief Justice Roberts wrote, is “based on 40-year-old facts having no logical relationship to the present day.” 
 
 “Congress — if it is to divide the states — must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions,” he wrote. “It cannot simply rely on the past.” 
 
 The decision did not strike down Section 5, but without Section 4, the later section is without significance — unless Congress passes a new bill for determining which states would be covered. 
 
 It was hardly clear, at any rate, that the court’s conservative majority would uphold Section 5 if the question returned to the court in the unlikely event that Congress enacted a new coverage formula. In a concurrence, Justice Thomas called for striking down Section 5 immediately, saying that the majority opinion had provided the reasons and had merely left “the inevitable conclusion unstated.” 
 
 The Supreme Court had repeatedly upheld the law in earlier decisions, saying that the preclearance requirement was an effective tool to combat the legacy of lawless conduct by Southern officials bent on denying voting rights to blacks. 
 
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 Critics of Section 5 say it is a unique federal intrusion on state sovereignty and a badge of shame for the affected jurisdictions that is no longer justified. 
 
 The Voting Rights Act of 1965 was one of the towering legislative achievements of the civil rights movement, and Chief Justice Roberts said its “strong medicine” was the right response to “entrenched racial discrimination.” When it was first enacted, he said, black voter registration stood at 6.4 percent in Mississippi, and the gap between black and white registration rates was more than 60 percentage points. 
 
 In the 2004 election, the last before the law was reauthorized, the black registration rate in Mississippi was 76 percent, almost four percentage points higher than the white rate. In the 2012 election, Chief Justice Roberts wrote, “African-American voter turnout exceeded white voter turnout in five of the six states originally covered by Section 5.” 
 
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 The chief justice recalled the Freedom Summer of 1964, when the civil rights workers James Chaney, Andrew Goodman and Michael Schwerner were murdered near Philadelphia, Miss., while seeking to register black voters. He mentioned Bloody Sunday in 1965, when police officers beat marchers in Selma, Ala. 
 
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 “Today,” Chief Justice Roberts wrote, “both of those towns are governed by African-American mayors. Problems remain in these states and others, but there is no denying that, due to the Voting Rights Act, our nation has made great strides.” 
 
 Justice Ginsburg, in her dissent from the bench, drew a different lesson from those events, drawing on the words of Dr. King. 
 
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 “The great man who led the march from Selma to Montgomery and there called for the passage of the Voting Rights Act foresaw progress, even in Alabama,” she said. “ ‘The arc of the moral universe is long,’ he said, but ‘it bends toward justice,’ if there is a steadfast commitment to see the task through to completion.” 
 
 In her written dissent, Justice Ginsburg said that Congress was the right body to decide whether the law was still needed and where. Congress reauthorized the law in 2006 by large majorities; the vote was 390 to 33 in the House and unanimous in the Senate. President George W. Bush, a Republican, signed the bill into law, saying it was “an example of our continued commitment to a united America where every person is valued and treated with dignity and respect.” 
 
 The Supreme Court considered the constitutionality of the 2006 extension of the law in a 2009 decision, Northwest Austin Municipal Utility District Number One v. Holder. But it avoided answering the central question, and it seemed to give Congress an opportunity to make adjustments. Congress, Chief Justice Roberts noted on Tuesday, did not respond. 
 
 Justice Ginsburg suggested in her dissent that an era had drawn to a close with the court’s decision on the Voting Rights Act, in Shelby County v. Holder, No. 12-96. 
 
 “Beyond question, the V.R.A. is no ordinary legislation,” she wrote. “It is extraordinary because Congress embarked on a mission long delayed and of extraordinary importance: to realize the purpose and promise of the Fifteenth Amendment,” the Reconstruction-era amendment that barred racial discrimination in voting and authorized Congress to enforce it. 
 
 “For a half century,” she wrote, “a concerted effort has been made to end racial discrimination in voting. Thanks to the Voting Rights Act, progress once the subject of a dream has been achieved and continues to be made.” 
 
 “The court errs egregiously,” she concluded, “by overriding Congress’s decision.” ||||| Analysis 
 
 The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that. A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress. They could not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself. 
 
 The dilemma could be captured perfectly in two separate comments by Justice Antonin Scalia — first, that it “can’t be right” that all of the myriad provisions of the law unrelated to the mandate had to fall with it, but, later, that if the Court were to strike out the mandate, “then the statute’s gone.” Much of the lively argument focused on just what role the Court would more properly perform in trying to sort out the consequences of nullifying the requirement that virtually every American have health insurance by the year 2014. 
 
 The Wednesday morning argument offered the Court three mutually exclusive options: strike down all of the Affordable Care Act along with the mandate (the challengers’ position), strike down only two core changes in the way the health insurance system works (the government position), and strike down nothing but the mandate (the position of a Court-appointed lawyer). Not one seemed to be especially appealing to members of the Court, and each of the three lawyers who came to the lectern faced tough and often skeptical questioning, from across the bench. 
 
 Congress’s capacity to react in a sensible way also came into some question, particularly from Justice Scalia and, in a way, from Justice Anthony M. Kennedy, both of whom seemed to harbor doubts that the lawmakers would be up to the task of working out a new health care law if this one failed, either totally or partially. Scalia noted the problems in the filibuster-prone Senate. Kennedy wondered whether expecting Congress to perform was a reference to “the real Congress or a hypothetical Congress.” 
 
 In the past, the Court has not spoken clearly about what is called the doctrine of “severability” — that is, if one part of a federal law is struck down as unconstitutional, can most or all of the rest of it be “severed” from the dead part and thus salvaged. At the end of the morning argument, it was not evident that the Court will do very much clarifying in the health care case. Of course, it could leave the doctrine as it stands if it were to uphold the mandate, and it would not have to solve the struggle that it encountered over the fate of the ACA without the mandate. 
 
 The Court also could avoid settling the severability issue in this case if it were to take the government’s suggestion that, for technical legal reasons, none of the challengers had any right to ask that other parts of the ACA be struck down along with the mandate. That argument, advanced by Deputy Solicitor General Edwin S. Kneedler, found no support on the bench. If the severability issue has to be faced, due to a nullification of the mandate, the Court appeared determined to try to work through it, however distasteful — or even disorienting — that task might be. 
 
 Washington attorney Paul D. Clement wanted to make that task very easy for the Justices: after you take out the mandate, then declare none of the remaining provisions can stand — however unrelated they may seem to be to the mandate. Though some parts of the law may be worthwhile, said Clement, “you are going to have to take the bitter with the sweet.” 
 
 When Justice Sonia Sotomayor became the first to ask “why don’t we let Congress fix it,” the challengers’ lawyer said that Congress would have to get involved no matter what the Court decided, but he said the Court would have to decide what task to leave to the lawmakers: “Do you want to give Congress the task of fixing the statute after something has been taken out, especially a provision at the heart, or do you want to give Congress the task of fixing health care?” It was clear that he thought the better result would be to make it so that Congress would have to start all over to fix the nation’s health care system. 
 
 Justice Scalia then set out on what would become a dominant theme: the difficulty of figuring out, after the fact, what Congress would have wanted stricken from the law if it knew it could not have the mandate. If there were one small provision that had to be stricken, perhaps because Congress wrote it into the law to help win votes for the overall measure, Scalia asked, why would the entire law have to go? But that simply enabled Clement to make his basic point that, it was not some small provision that caused the constitutional problem, it was the mandate, the package of provisions related to it, and many other sections of the law that would be linked directly or indirectly to the mandate. 
 
 The more liberal members of the Court began joining in, suggesting that they were interested in salvaging as much of the remainder of the law as they could — with the possible exception of the basic reforms that Congress had sought to impose on insurance companies to assure that they provided coverage even for unhealthy persons and to assure that they did not raise premiums unreasonably. If the Court could preserve “half a loaf” rather than taking away the entire loaf, Justice Elena Kagan said, that would be preferable. And Justice Ruth Bader Ginsburg told Clement that “there are so many things in this Act that are unquestionably okay.” So, she said, why make Congress reenact those? Pointedly, she wondered if the Court were being asked to make a choice “between a wrecking operation…or a salvage job.” 
 
 Clement, though, insisted that if the Court did salvage everything but the mandate and its immediately related provisions, nothing would be left but “a hollow shell.” Chief Justice John G. Roberts, Jr., countered that it would not be a hollow shell, since many are things that Congress has put in the law to keep long-standing provisions of federal law intact, and those would have nothing to do with the mandate. 
 
 Justice Kennedy pressed Clement to spell out the kind of severability standard he wanted the Court to apply, noting that the Court did not want to be drawn into trying to make an “intrusive” inquiry into what was on Congress’s mind in adopting one provision or another as part of the ACA. “What test,” Kennedy asked, “do you suggest that we follow if we want to clarify our jurisprudence?” The “objective test” the lawyer suggested was that the Court determine whether the law “can operate in the manner that Congress intended” if a part (like the mandate) were stricken. 
 
 Justice Sonia Sotomayor countered that no statute ever operates as Congress had intended, if part of what Congress had put into it is taken out. So she said the test had to be something more than congressional intent. Why not, she asked, start out with the presumption that Congress would have wanted everything but the invalid part to be salvaged. If Congress has not explicitly said that nothing else is to be salvaged, she suggested, the Court should not do away with any other part. “We should let them fix their problem….Why, in a democracy structure like ours,” should the Court be drawn into “making the legislative judgment.” 
 
 These exchanges gave Clement an opportunity to make what he called a broader point. Looking back to a 1976 campaign finance ruling, in which the Court had drawn unusual distinctions between giving and spending, striking down limits only on spending, Clement said that set off four decades of effort by Congress to try to fix what was left of the law, “largely unsuccessfully.” That, he said, illustrates why the Court should give Congress a chance “to actually fix the problem” by striking down the entire law and thus set the stage for the lawmakers to start all over on health care. 
 
 The Justices, though, did not seem to be seeing in Clement’s argument for sweeping it all aside an answer to the judicial dilemma. “What do your propose that we do,” Justice Stephen G. Breyer asked, “other than spend a year reading all this…” Breyer seemed to be assuming that the Court would not strike down everything else, as Clement wanted, but follow a more selective path. Justice Samuel A. Alito, Jr., also pressed Clement for a “fallback position” if the Court were not to strike down the remainder of the ACA. He slightly modified his view, saying that the Court could use its own judgment, but he wound up again arguing that the best route would be to wipe the slate clean, and let Congress respond. 
 
 Deputy Solicitor General Kneedler ran into immediate difficulty as he opened his argument with the point that the Court should not even address severability. But that led the Justices into a series of questions about how anybody feeling wronged by something in the law would go about challenging it in court. Kneedler responded that, just because no one might be able to sue, there was no obligation to give them that chance. Justice Ginsburg chimed in to repeat her comment that it should not be for the courts to sort out what happened, but that should be left to Congress. 
 
 Justice Scalia also argued in favor of leaving it to Congress, but he made it clear he was talking about doing so only after the entire Act had been voided along with the mandate. Justice Kennedy seemed to agree, by arguing that the Court would be seen as exercising judicial activism, not restraint, if it allowed some part of the law to remain intact but that wholly changed what Congress had intended to happen in the health insurance industry. 
 
 When Kneedler insisted that the Court look closely at the text of the ACA and decide what to keep and what to save, several Justices rebelled, suggesting that that would be an irksome and very difficult and time-consuming process. “We are going to go through this enormous bill, item by item, and decide each one?” Justice Scalia asked incredulously. “Is this not totally unrealistic?” It would be a revolution in the Court’s severability approach to have to do that, Justice Kagan added. 
 
 Justice Breyer offered an un-judicial approach, in which Kneedler and Clement would get together and work out between them what parts of the law to save and what to have cast aside. 
 
 Near the end of his argument, Kneedler moved to a broader argument, discussing some of the consequences of a decision to nullify all of the Act, including throwing millions of people who had newly obtained insurance off of the rolls. Many changes in the Medicare program for the elderly also have gone into effect, he added. But the Chief Justice interrupted to say that all of that occurred on the assumption that the mandate was constitutional, and those developments would not keep the Court from making its own decision about the mandate and the consequences of nullifying it. 
 
 The final argument on severability, by Court[-appointed Washington lawyer H. Bartow Farr III, was in favor of salvaging all of the Act if the mandate had to go, disagreeing even with Kneedler’s suggestion that two provisions closely related to the mandate would have to go if it did. But that part of the argument seemed to bog down in a dispute over whether the insurance industry would be bankrupt if it lost the mandate as a generator of a huge new pool of premium payers whose money would make the required expansion of insurance coverage work. 
 
 Congress, Farr said, had adopted a half-dozen other provisions that would help offset the costs of the expanded coverage, including a system of very generous subsidies to encourage people to obtain insurance even if they were no longer required to do so by a mandate. 
 
 It did not appear that Farr had any success in trying to explain away findings by Congress that the mandate was “essential” to make the other changes in the health insurance market work as intended. The definition he offered of the word seemed too exotic for the Court. 
 
 Recommended Citation: Lyle Denniston, Argument recap: A lift for the mandate? (FINAL UPDATE 5:12 pm), SCOTUSblog (Mar. 28, 2012, 6:56 PM), http://www.scotusblog.com/2012/03/argument-recap-a-lift-for-the-mandate/
– If today's questions from the conservative wing of the Supreme Court are any guide, the landmark Voting Rights Act of 1965 is doomed. In fact, writes Tom Goldstein at SCOTUSblog, expect a 5-4 decision in favor of striking down Section 5 of the act, one of its core provisions. It requires nine mostly Southern states to get federal permission when they want to change voting rules, and Antonin Scalia and others suggested the measure is no longer necessary, reports the New York Times. Scalia called it a "perpetuation of racial entitlement," Anthony Kennedy wanted to know how long Alabama had to live "under the trusteeship of the United States government," and Chief Justice John Roberts wondered whether people in the South were more racist than those in the North. The court's liberal wing made the case that the act is still necessary, with Stephen Breyer saying the "old disease" of racism, along with the desire to keep minorities from voting, remains. If the court strikes down the act, it would likely require Congress to come up with a new formula for it, but both the Times and SCOTUSblog think it's unlikely that would be politically possible.