By Joan Biskupic
WASHINGTON, (Reuters) - Barely a minute into a U.S.
Supreme Court hearing, liberal justices began a strategic
barrage of questions that came down to this: Why should a
time-honored plank of the 1965 Voting Rights Act be invalidated
in a case from Alabama with its history of racial
What followed constituted a classic example of how justices
can try to use oral arguments to dramatic effect and influence a
swing vote justice. Key players were Elena Kagan and Sonia
Sotomayor, appointees of President Barack Obama and the newest
members of the bench. The likely target of their remarks:
Anthony Kennedy, a conservative who is often the decisive fifth
vote on racial dilemmas.
"Think about this state that you're representing," Elena
Kagan told the lawyer arguing against the law on Wednesday.
"It's about a quarter black, but Alabama has no black statewide
Focusing on Shelby County, Alabama, the southern locale that
brought the case, Sotomayor asked, "Why would we vote in favor
of a county whose record is the epitome of what caused the
passage of this law to start with?"
Those liberals were addressing lawyer Bert Rein, but their
comments seemed aimed more at Kennedy, often the swing vote on
the nine-member court. While appearing overall open to Shelby
County's claims, Kennedy quickly picked up on their line of
inquiry, asking Rein how a county with a record of bias would be
"injured" by the 1965 provision that was intended to prevent
One of the most closely watched disputes of the term, the
case centers on the civil rights-era law that broadly prohibited
poll taxes, literacy tests and other measures that prevented
blacks from voting. In the 1960s, such laws existed throughout
the country but were more prevalent in the South with its legacy
of slavery. Specifically at issue is a provision - designed to
be temporary and that Congress has continued to renew - that
requires certain states, mainly in the South, to show that any
proposed election-law change does not discriminate against
African-American, Latino or other minority voters.
The Shelby County challengers say the kind of systematic
obstruction that once warranted treating the South differently
is over and the screening provision should be struck down.
Convincing Kennedy of lingering problems in Alabama may be
liberals' best hope of stopping the conservative majority from
invalidating what's known as Section 5 of the Voting Rights Act.
The Obama administration, backed by civil rights advocates,
says the provision is still needed to deter voter
discrimination. Kennedy's comments during the 75-minute session
suggested he was sympathetic to Shelby County's claim that in
modern times different states should not be treated differently.
Yet the liberals' assertions clearly gave him some pause.
The onslaught, particularly from Sotomayor, the first
Hispanic justice, and Kagan, known for asking piercing
questions, served as a reminder of how the justices often use
oral arguments to try to make their cases. These sessions, which
let dueling attorneys present their claims at the lectern, give
the justices their first chance to lay the groundwork for their
ultimate discussion and vote on a case. The nine justices are
due to meet in private on Friday to discuss the merits of the
case. An opinion can take months to write, and the decision is
not likely to be handed down until June.
LAW'S RELEVANCE ENDURES
Voting rights remain a prominent issue. During the 2012
presidential election campaign, judges nationwide heard
challenges to new voter identification laws and redrawn voting
districts. The most restrictive moves, including those from
places covered by the screening provision in Section 5, ended up
being blocked before the November elections.
In Shelby County over the years, Sotomayor asserted, Section
5 had prevented "240 discriminatory voting laws" from taking
effect. In a 2008 incident, the city of Calera in Shelby County
put in place a redistricting plan that led the one African
American on the city council to lose his seat. After the Justice
Department forced Calera to redraw the map, the council member
regained his seat.
Rein did not challenge Sotomayor's numbers, but he said
black-voter registration and turnout in Alabama were "very
high." He said evidence on the ground was irrelevant when
officials are lodging a broad-based challenge to a law. His main
argument was that the criteria by which states fall under
Section 5 are outdated. The formula can be traced to electoral
practices in the late 1960s and '70s. The nine fully covered
states are Alabama, Alaska, Arizona, Georgia, Louisiana,
Mississippi, South Carolina, Texas and Virginia.
U.S. Solicitor General Donald Verrilli argued that Congress
compiled a sufficient record to demonstrate that the decades-old
formula continues to target the places with the most serious
problems of voting discrimination.
Much of the give-and-take on Wednesday echoed arguments in a
2009 challenge to Section 5. In that case from Texas, the five
most conservative justices, including Kennedy, voiced doubts
about whether Congress had valid grounds to continue singling
out the South. Both times Kennedy questioned whether a separate
provision of the Voting Rights Act, known as Section 2 and
covering intentional acts of discrimination, did not
sufficiently protect minorities. Four years ago, the court ended
up ruling narrowly and avoiding the larger question about the
scope of Congress' power to enforce voting rights.
A marked difference in Wednesday's dynamic stemmed from the
additions of Sotomayor and Kagan, who succeeded Justices David
Souter and John Paul Stevens, respectively, in 2009 and 2010,
and who are more forceful at oral arguments.
Kennedy signaled he wants to make sure that states are able
to address their own problems without Washington's intervention.
"If Alabama wants to have monuments to the heroes of the
civil rights movement," he asked Verrilli, "if it wants to
acknowledge the wrongs of its past, is it better off doing that
[as an] independent sovereign or ... under the trusteeship of
the United States government?"
Verrilli said Congress found that many places because of
deep-seated discrimination still needed oversight. Said
Verrilli: "Of fundamental importance here is that that history
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