The fear of civil rights groups and others that the U.S. Supreme Court might deal a lethal blow to a key provision of the Voting Rights Act of 1965 appeared to play out in real time on February 27 in arguments before the justices.

The provision is Section 5, considered the heart of the act. It requires government entities with a history of voting discrimination to have any changes in voting practices "precleared," or approved, by the U.S. Department of Justice or the federal district court in Washington. Section 5 currently covers nine states, primarily in the South, and parts of seven others. In Shelby County, Alabama v. Holder, the court is asked whether Congress exceeded its authority under the 15th and 14th amendments when it reauthorized Section 5 under a formula that the challengers contend is outdated and intrusive on state sovereignty. Four of the court’s conservative justices voiced strong skepticism about the constitutionality of the act’s Section 5, which Congress reauthorized in 2006 for 25 more years. Justice Clarence Thomas remained silent, although he wrote in a 2009 Voting Rights Act case that he would strike down Section 5. The court’s four more liberal justices appeared supportive of the section’s constitutionality.

Despite sometimes hostile questioning by Chief Justice John Roberts Jr. and justices Antonin Scalia, Anthony Kennedy and Samuel Alito Jr., some civil rights leaders said after the arguments that they are optimistic the court will not leave the job of eradicating voting bias "half done."

"The Voting Rights Act was a response to more than 100 years of ignoring the rights of freed slaves to become citizens," said Debo Adegbile, special counsel to the NAACP Legal Defense and Educational Fund, who shared argument time with Solicitor General Donald Verrilli Jr. in defense of Section 5. "It is not about a special entitlement. It is about inviting everyone to the party of our democracy."

Adegbile’s "entitlement" comment was a response to an exchange between Scalia and Verrilli. The justice recounted how when the law was enacted, Senate votes opposing it were in the double digits. But with each reauthorization, Senate opposition decreased until, in 2006, reauthorization was passed with no opposing votes. The House had a similar record, he said.

"Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this," Scalia said. "I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes."

The problem with the reauthorization of Section 5 and the coverage formula in particular, according to Scalia and his conservative colleagues, is that Congress did not adequately justify treating states differently. Alito asked Verrilli why, when Congress reauthorized the act, it wasn’t incumbent on Congress to make a new determination of coverage using a formula based on up-to-date statistics. Verrilli said Congress was justified in leaving the coverage formula alone, based on the covered states’ history of discrimination as well as recent and ample evidence of voting discrimination in those states. He also said the act provides covered jurisdictions with an escape route — so-called bail-out — if they can show no discriminatory policies for 10 years. Shelby County’s counsel, Bert Rein of Wiley Rein, reminded the court that in a 2009 decision, signed by eight justices, it had raised serious constitutional questions about Section 5. It also had noted that the record before Congress in 2005 showed that the South had changed, he said.

Justice Sonia Sotomayor interjected, "Your county pretty much hasn’t." She noted that in the period covered by the reauthorization, Shelby County had 240 discriminatory voting changes that were blocked by Section 5 objections: "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?"Rein said Shelby County is covered by virtue of Alabama being covered, not because of any independent evaluation by Congress. "We are here to challenge this formula because, in and of itself, it speaks to old data; it isn’t probative with respect to the kinds of discrimination that Congress was focusing on, and it is an inappropriate vehicle to sort out the sovereignty of individual states. We’re here with a county, a state, that are swept in by a formula that is neither in theory nor in practice rational. That’s the nub of the case."

Marcia Coyle can be contacted at mcoyle@alm.com.