WASHINGTON — The Supreme Court’s conservative justices led a sustained attack today on a key element of the Voting Rights Act, questioning whether one-time bastions of segregation still should be held to account for past discrimination.
The justices who were skeptical of that part of the voting rights law included Justice Anthony Kennedy, whose views are likely to prevail on the closely divided court. He tends to side with his more conservative colleagues on matters of race.
On the other side, the liberal justices defended Congress’ decision to keep the law in place to prevent ongoing discrimination.
The tenor of the quick-paced argument suggested that there could be a court majority to strike down the provision of the voting rights law that has been the Justice Department’s main enforcement tool against discriminatory changes in voting since the law was enacted in 1965. It opened elections to millions of blacks and other minorities.
The law requires all or parts of 16 states, mainly in the South, with a history of discrimination in voting to get approval in advance of making changes in the way elections are conducted. The idea behind it is to prevent discriminatory measures from being put in place.
The court is being asked by a small Texas utility district to strike down the extension as an unconstitutional intrusion into the domain of state and local governments that have made substantial progress since the era of Jim Crow and government-sponsored discrimination.
Kennedy acknowledged that the provision has been successful in rooting out discrimination in voting over the past 44 years. But times have changed, he said, questioning Congress’ judgment in 2006 that it was needed for another 25 years.
“Democracy was a shambles,” Kennedy said of the era when the law first was enacted. “That’s not true anymore.”
When Justice Department lawyer Neal Katyal pointed out that the high court has upheld previous extensions of the law, Justice Antonin Scalia dismissively replied, “A long time ago.”
At another point, Chief Justice John Roberts asked, “At what point does that history … stop justifying action with respect to some jurisdictions?”
Katyal did not specifically answer that question. But he said, “After 16,000 pages of testimony, 21 different hearings over months, Congress looked at the evidence and determined that their work was not done.”
Roberts and Justice Samuel Alito also noted that by some measures of racial disparity, states not required to submit election changes fare worse than those with a history of discrimination.
The court’s liberal justices said Congress pointed out that instances of voting discrimination occur more often in the states covered by the portion of the voting rights law that is under challenge.
“I don’t understand with a record like that how you can maintain … that things have radically changed,” Justice David Souter said, acknowledging that there has been progress.
Justice Ruth Bader Ginsburg referred to the “second-generation discrimination” that Congress was aiming to stop. “You start with the blatant overt discrimination, and then in time people recognize…that won’t go any more, so the discrimination becomes more subtle, less easy to smoke out,” Ginsburg said. “But it doesn’t go from blatant overt discrimination to everything is equal.”
The Obama administration and civil rights groups also argued that Congress was well within its power to renew the law.
President Barack Obama’s election did not come up in court today, although both sides used it in their briefs.
Outside the court, more than 100 NAACP members wearing yellow rain slickers, jackets and hats sang and chanted while the justices were hearing the case inside.
Betty Johnson, 62, of Elkton, Md., said, “Just because we have an African-American president doesn’t mean that people’s voting rights can’t be taken away.”
Republicans controlled Congress and the White House in 2006. If the court strikes down a portion of the voting rights law, Democrats now in the majority are likely to write a new measure, although they could be restricted by what the court says, according to election law expert Richard Hasen, a professor at Loyola Law School in Los Angeles.
The justices also could find a way out of the case without ruling one way or the other on the constitutional issue. They could determine that the Northwest Austin Municipal Utility District No. 1 in Austin, Texas, can opt out of the advance approval requirement, although a lower federal court found it could not.
For the only time this term, the justices made available audio recordings immediately after the arguments.
A decision should come by the end of June.
The case is Northwest Austin Municipal Utility District No. 1 v. Holder, 08-322.
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