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Analysis: In voting-rights case, liberal justices pitch to Kennedy

Supreme Court Justice Anthony Kennedy (C) leaves at the conclusion of the annual Red Mass held at the Cathedral of St. Matthew the Apostle i
Supreme Court Justice Anthony Kennedy (C) leaves at the conclusion of the annual Red Mass held at the Cathedral of St. Matthew the Apostle i

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 discrimination?

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 elected officials."

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 discrimination.

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 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 remains relevant."

(Reporting by Joan Biskupic; Editing by Howard Goller and Tim Dobbyn)

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