Section 5 of the Voting Rights Act Appears to be Going Down

The Supreme Court yesterday heard arguments for and against section 5 of the Voting Rights Act which was originally designed to stop racial discrimination at the polls. According to the Washington Post, Section 5 “stipulates that areas of the country with a history of racial discrimination must receive pre-clearance from the Justice Department or a federal court before making any voting law changes.” Alabama is one of eight states — mostly in the south — that are subject to pre-clearance, and Alabama is now leading the way in the case against Section 5, Shelby County v. Holder.

The once-needed safeguards in Section 5 are antiquated and no longer reflect the current status of race relations in the south. “The violence, intimidation, and subterfuge that led Congress to pass Section 5 and this court to uphold it no longer remains,” says Shelby County’s challenge.

Chief Justice John Roberts seemed to agree in 2009 when he wrote, “Things have changed in the South. The evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions.”

During oral arguments Wednesday, Chief Justice Roberts asked U.S. Solicitor General Donal Verrilli whether it was the U.S. government’s position that residents of Southern state are more racist than residents of Northern states. Verrilli vehemently denied that was their position.

But as oral arguments continued to unfold, it was clear that some members of the Court did not believe racial progress had yet come to Shelby County, Alabama. “Some parts of the South have changed. Your county pretty much hasn’t,” said Justice Sonya Sotomayor. “You may be the wrong party bringing this.”

Fortunately the conservative justices seemed to side with Roberts. Justice Antonin Scalia referred to Section 5 as the “perpetuation of racial entitlement.”

“Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes,” Scalia said.

Alabama Attorney General Luther Strange weighed in on the issue in an op-ed penned for USA Today. “The question before the Supreme Court is whether Congress had power, in 2006, to extend this measure for 25 more years. The answer is no,” Strange wrote. “Congress could not conclude that a generation of people with no connection to the tragic events of the 1960s would be untrustworthy until 2031.”

Strange continued further, “Bull Connor…has been dead 40 years. The children of today’s Alabama are not racist, and neither is their government. It is time for states covered by Section 5 to become equal parts of these United States.”

While it’s still too early to claim victory (remember ObamaCare, anyone?), Pete Williams of NBC News said after oral arguments that he thinks “it’s safe to say there are five votes to strike down either one or both parts of the Voting Rights Act.”