The politically charged issue of race was before the U.S. Supreme Court on Wednesday in a case that could determine how the landmark 1965 Voting Rights Act applies to the South and in Alaska, where it seeks to counter a history of discrimination against Native voters.
The nine justices engaged in a lively and at times contentious 70-minute exchange, with several possibly signaling their positions in what may mean a new chapter in the nation's divided racial history. The repercussions of their eventual decision could be felt throughout the country.
"Is it the government's submission that the citizens in the South are more racist than citizens in the North?" Chief Justice John Roberts asked in an apparently facetious question that drew gasps from the audience.
The case arose out of Shelby County, Ala., which is challenging sections of the pivotal 1965 law that prohibited discriminatory voting rules. The county brought the suit against the sections of the law that require Alaska and eight other states, mainly in the South, to receive prior approval from the U.S. Department of Justice on voting procedures or anything that affects a minority group's ability to cast ballots.
Alaska must get approval from the Justice Department when it redraws legislative districts, relocates polling places or otherwise adopts new election procedures. Last summer, Gov. Sean Parnell directed his attorney general to bring suit in Washington, D.C., to remove that supervision, charging it is an infringement of states rights.
If the Supreme Court in the Shelby County case throws out that section of the law, the state's lawsuit would be moot and the Parnell administration would emerge victorious.
Hoping for that outcome, Alaska's attorney general's office has filed a friend of court brief in the Shelby case arguing against the law. On the other side, the Anchorage office of the Native American Rights Fund, representing the Alaska Federation of Natives and several Alaska villages and Native voters, filed a brief in support of the law and of Alaska's continued supervision by the Justice Department.
The Parnell administration brief asserts the state "has no history of voting discrimination," yet bears the "scarlet letter" of Justice Department supervision. The state is suffering under the "extraordinary and unwarranted infringement of its sovereignty," it said.
The Natives' brief asserts the administration's claim of non-discrimination is false, citing state and federal court decisions, congressional testimony, the work of university professors, census data, voting records and other sources. Continued discrimination in educational opportunities for Natives, and the effects that low literacy rates have in suppressing voter turnout, make Alaska a "textbook case" for why the law should remain in full force, the brief said.
The nine states currently covered in their entirety under the contested sections are Alaska, Alabama, Georgia, South Carolina, Texas, Arizona, Louisiana, Mississippi and Virginia. Seven other states -- California, Florida, North Carolina, Michigan, New Hampshire, New York and South Dakota -- have counties or other local jurisdictions under similar supervision.
Several of the states are engaged in legal disputes with the Justice Department on Voting Rights Act clearance issues, such as Texas' ongoing fight over drawing district lines.
The hearing drew well-known African-American leaders, including the Rev. Jesse Jackson, the Rev. Al Sharpton and several African-American members of Congress. Among them was the House Democrats' assistant leader, Rep. James Clyburn of South Carolina. Also on hand as observers were the main authors of the Alaska briefs, Assistant Attorney General Margaret Paton Walsh and Native American Rights Fund attorney Natalie Landreth.
The court's ideological lines were immediately obvious as Justice Sonia Sotomayor challenged Shelby County's attorney, Bert Rein.
"Some portions of the South have changed," said Sotomayor, who then cited an ongoing pattern of discriminatory voting procedures in Shelby County. "Your county pretty much hasn't. You may be the wrong party in bringing this."
Rein argued that applying Section 5 of the law to only certain states violates the Constitution, which is based on laws being applied equally. He said that the formula to determine which jurisdictions fall under Section 5 is outdated, based on long-since discontinued literacy tests and voting registration dependent on mid-1960s data.
The Alaska State Constitution's literacy test wasn't removed until 1970, one of the last states to do so. The referendum changing the Constitution passed by 1,501 votes, two months after such literacy tests were banned by a Congressional amendment to the Voting Rights Act.
At the center of the Shelby County case is whether the courts or Congress, which in 2006 reauthorized the Voting Rights Act for 25 years, should decide whether the prior approval requirement in Section 5 -- considered by supporters to be a deterrent to discrimination -- stays in place.
U.S. Solicitor General Donald Verrilli pointed out that Congress had looked at the record and approved the law by large margins. But Justice Antonin Scalia said, "I think it is attributable to a phenomenon that is called perpetuation of racial entitlement."
Justice Elena Kagan said that deciding which states were engaged in discriminatory voting activities would be "a new power" for the judges.
"I don't think this falls under our bailiwick," she said.
At least five members of the court seemed to agree that it is constitutionally impermissible, in the words of Justice Anthony Kennedy, to treat some states as "independent sovereign(s)" and others as "under the trusteeship of the United States government" without actual, current evidence in a distinction between these states.
Kennedy is seen as the swing vote in many closely divided cases.
In Alaska, the Anchorage chapter of the NAACP urged that the law be kept intact.
"The Voting Rights Act was passed to ensure that African American, Latino, Asian-American and American Indian citizens will have the precious right to vote," chapter president Wanda Laws said in a prepared statement. "You only have to look at the 2012 election for evidence that the entire Voting Rights Act is as relevant today as it has ever been."
U.S. Sen. Mark Begich said Alaska Natives still need the protections of the act, especially "in light of recent steps by the State and some legislators to create new barriers to voting." One such measure, according to critics, is House Bill 3, introduced by Rep. Bob Lynn, R-Anchorage, that would require a photo ID to vote, including in villages without access to state DMV offices, where photo IDS are produced.
Mario Recio is a reporter in McClatchy Newspapers' Washington Bureau and can be reached at mrecio@mcclatchydc.com. Richard Mauer covers politics for the Anchorage Daily News and can be reached at rmauer@adn.com or 257-4345.
By MARIA RECIO and
RICHARD MAUER