WASHINGTON — The fate of a key provision of the Voting Rights Act looked to be in doubt Wednesday as Supreme Court justices questioned whether the Southern states still need special supervision to prevent them from discriminating against black voters.
"Are Southerners more likely to discriminate than Northerners?" asked a skeptical Chief Justice John G. Roberts Jr.
Is the "sovereignty of Georgia" entitled to less respect than "the sovereign dignity of Ohio? . . . Does the United States take that position today?" asked Justice Anthony M. Kennedy, pressing a lawyer for the Justice Department who was defending the Voting Rights Act.
The comments and questions during an hourlong argument suggested that a majority of the justices were prepared to strike down Section 5 of the Voting Rights Act. This provision requires many Southern states, counties and school districts to get approval from the Justice Department before making changes in their election rules. These rules range from the location of polling places to the makeup of districts in state legislatures.
The provision also applies to a few counties in Northern California, New York and elsewhere that have a high percentage of residents who do not speak English.
The question before the Supreme Court was whether this special Southern-only "pre-clearance" provision was still needed. "Why didn't [Congress] extend Section 5 to the entire country?" asked Justice Samuel A. Alito Jr.
Like Roberts and Kennedy, he voiced doubt about whether Congress had sufficient reason in 2006 for singling out the South for special supervision for another 25 years. In the past, Justices Antonin Scalia and Clarence Thomas also have voiced skepticism about the reach of this provision.
Neal Katyal, the Obama administration's deputy solicitor general, called the law and Section 5 "a landmark achievement" that deters schemes to violate the rights of minorities.
Debo Adegbile, a lawyer for the National Assn. for the Advancement of Colored People's Legal Defense Fund, agreed. He said Congress and the court should "stay the course" and continue the effort to root out subtle discrimination that disadvantages minorities. If Section 5 were struck down, "the discrimination will return," he predicted.
But both advocates were met with steadily skeptical questions from the court's conservatives.
Roberts noted that Massachusetts had a lower rate of registering Latino voters than Texas. "Why didn't Congress extend the act to Massachusetts?" he asked.
The Voting Rights Act of 1965, which prohibited any voting discrimination based on race, is often cited as one of most effective and far-reaching laws of the 20th century. Until then, most blacks in the South could not vote -- not because of laws against voting -- but because voting rolls were controlled by county registrars. And they used many schemes to prevent blacks from registering and casting ballots.
If the Supreme Court were to strike down Section 5, the decision would not necessarily affect the remainder of the Voting Rights Act. Discrimination against minority voters would still be illegal, but the onus would be on the Justice Department and private lawyers to bring suits to challenge discriminatory practices.
In Alabama's Dallas County, where Selma is the county seat, only 156 blacks among 15,000 black adults were registered to vote in the early 1960s. This figure was cited in a brief to the court by Alabama's Republican Gov. Bob Riley to show how things have changed. Now, about 73% of blacks and whites are registered to vote in Alabama, he said, and blacks make up one-fourth of the Legislature, matching the percentage of the black population.
He and other Southern officials said the schemes to prevent blacks from voting have been abolished, and therefore the "pre-clearance" section is outdated.
The challenge to the law arose from an unlikely locale. The Northwest Austin Municipal Utility District in Texas does not register voters, nor has it been accused of discrimination. It is a suburban community that elects members to a water board. But because of Section 5, it had to ask the Justice Department for its approval before it moved the voting location from a private home to a public school.
Gregory Coleman, a former Texas solicitor general, filed a suit on behalf of the district challenging the law as unconstitutional. He argued that the provision of the Voting Rights Act was entirely justified in 1965 but not so today. "Times have changed," he said, but the Southern states still wear a "badge" accusing them of racism.
In his brief to the court, he cited the historic election of President Obama as evidence that the nation has come a long way since 1965, but he did not repeat that argument Wednesday.