WASHINGTON – Since its inception in 1965, the Voting Rights Act has been hailed as one of the most successful pieces of civil rights legislation in United States history. Today, it faced a significant challenge at the Supreme Court. The battle is specifically linked to Section 5 of the Act, which requires jurisdictions across 16 states to get "pre-clearance" from the Justice Department before they are allowed to alter their voting procedures in any way. Section 5 was given a 25 year extension in 2006, but just eight days later a small municipal utility district in Texas launched the case that came to the highest court in the country today.
The Texas district argues that there is no evidence of recent discrimination, and that forcing it to comply with Section 5 is unreasonable. Attorneys for the district say localities that can show they are free of discrimination should be able to more easily bailout of Section 5 requirements. Since 1982, fewer than 20 jurisdictions have been permitted to do so.
Much of today's dispute revolved around the 2006 extension of Section 5 and the volumes of material Congress amassed before voting on it. Justice David Souter expressed surprise that anyone who examined that record would argue that extension of Section 5 is unnecessary. He said, "I don't understand, with a record like that, how you can maintain as a basis for this suit that things have radically changed? They may be better, but to say that they have radically changed to the point that this becomes an unconstitutional section 5 exercise within Congress's judgment just seems to me to — to deny the empirical reality."
However, several justices expressed dismay that the vast majority of the evidence Congress considered examined only the states already covered under Section 5, and failed to investigate similar claims from the other 34 states. Justice Anthony Kennedy, likely to be the deciding vote in the case, expressed great skepticism, "This is — this is a great disparity in treatment, and the government of the United States is saying that our States must be treated differently. And you have a very substantial burden if you're going to make that case."
Following the arguments today, attorney Gregory Coleman, who represented the Texas district challenging Section 5, argued the country is vastly different than it was in 1965. He said, "I think there's a fundamental change in the fabric of America," adding, "By and large, Americans want to do what's right." But opposing counsel, Debo Adegbile, says the wrongs that Section 5 has remedied are not yet completely extinguished. Adegbile cautioned, "We've seen that discrimination takes root, grows back. The weeds are still there."
The Supreme Court has upheld Section 5 four times, but if today's oral arguments are any indication, it appears the Justices may be willing to narrow it for the very first time.