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The supreme court appeared to lean toward striking down cornerstone civil rights legislation that has protected African Americans right to vote for half a century during a combative hearing on Wednesday.
The justices clashed over whether discrimination is still an issue with one, Antonin Scalia, deriding the legislation under dispute as "perpetuation of racial entitlement". They also disagree over whether it is for Congress or the courts to decide whether measures that discourage or diminish minority votes require federal intervention.
The case was brought by an Alabama county which argued that the state is being singled out by a provision in the 1965 Voting Rights Act that subjects nine states with a history of disenfranchising black people, mostly in the south, to US Justice Department oversight of their election laws and procedures.
Bert Rein, representing Shelby County, told the court that the act has done its job in ensuring the right of African Americans to register and vote. He said it is unjust to continue to subject Alabama to a provision, known as Section 5, requiring the state to seek prior approval from the US Justice Department for changes to the conduct of its elections.
Rein said that when Congress renewed the act for 25 years in 2006 it should have taken into account the realities in Alabama at that time not the conditions in 1965. He argued that Shelby County should be considered in comparison to the conduct of other jurisdictions across the US today, not what it has done in the past.
But Rein was quickly challenged by Justice Sonia Sotomayor who described Shelby County as having a record that is "the epitome of what caused this law in the first place".
"Your county has not changed. In the period we're talking about it had 240 voting laws violations blocked by Section 5," she said.
The justices agreed that the Voting Rights Act has caused huge progress but there was strong disagreement over whether it has achieved its aims and is still necessary.
The liberal justices argued that while the initial aims of ensuring African Americans could vote has been met there is a "second generation" of discrimination underway with the insidious use of other devices, such as the drawing of electoral boundaries, voter identification laws and the placing of polling stations, which are intended to undermine the power of minority votes.
Justice Elena Kagan said that while Rein objected to the formula used by Congress to decide which states should have their elections still fall under federal oversight, "by any formula Congress could devise, Alabama would be captured".
"You're asking us to ignore your record and just look at everybody else's," she said.
Rein responded that the number of black members of the Alabama legislature is proportionate to African Americans living in the state.
Part of the disagreement between the justices centred on how Congress reached the decision to renew the Voting Rights Act. Sotomayor noted that Congress compiled a long record of measures by the affected states that discriminated against minority voters at elections. She said the list was evidently persuasive because 98 senators voted in favour of renewing the legislation while none voted against.
But Justice Antonin Scalia dismissed that. He said the vote was a representation of political positions and suggested that for that reason it should be for the courts and not Congress to decide the issue.
"I don't think there's anything to be gained by any senator to vote against the act," he said. "It's a concern that this is not a question you can leave to Congress."
Sotomayor called that position "extraordinary".
The solicitor general, Donald Verrilli, representing the Obama administration in support of Section 5, noted that the 14th amendment to the constitution gives Congress the power to enforce protections of the right to vote.
Verrilli argued that Section 5 has a constraining effect that discourages states from more blatant attempts are distorting elections, and that things would be much worse without it.
"Everyone argues that significant progress has been made because of the constraining effect of Section 5," he said.
The chief justice, John Roberts, wondered why states like Alabama were singled out when liberal Massachusetts has the worst ratio of African American turnout against white turnout at elections, and the greatest disparity in voter registration.
"Is it the government's submission that the citizens in the south are more racist than the citizens in the north?" he asked Verrilli.
The solicitor general said not.
Justice Stephen Breyer said it was reasonable to single out states with a history of systematic discrimination.
"Of course this is aimed at states," he said. "What do you think the civil war was about?"