Voting Procedures: A lawyer for the NAACP Legal Defense and Educational Fund talks about arguing in favor of the Voting Rights Act at the Supreme Court. 
 
 WASHINGTON — A central provision of the Voting Rights Act of 1965 may be in peril, judging from tough questioning on Wednesday from the Supreme Court ’s more conservative members. 
 
 If the court overturns the provision, nine states, mostly in the South, would become free to change voting procedures without first getting permission from federal officials. 
 
 In a vivid argument in which the lawyers and justices drew varying lessons from the legacies of slavery, the Civil War and the civil rights movement, the court’s conservative wing suggested that the modern South had outgrown its troubled past and that the legal burdens on the nine states were no longer justified. 
 
 Chief Justice John G. Roberts Jr. asked skeptically whether “the citizens in the South are more racist than citizens in the North.” Justice Anthony M. Kennedy, whose vote is probably crucial, asked whether Alabama today is an “independent sovereign” or whether it must live “under the trusteeship of the United States government.” 
 
 Justice Antonin Scalia said the law, once a civil rights landmark, now amounted to a “perpetuation of racial entitlement.” 
 
 That remark created the sharpest exchange of the morning, with Justice Sonia Sotomayor on the other end. “Do you think that the right to vote is a racial entitlement?” she later asked a lawyer challenging the law, with an edge in her voice that left little doubt she was responding to Justice Scalia’s statement. “Do you think that racial discrimination in voting has ended, that there is none anywhere?” 
 
 The outcome of the case will most likely remain in doubt until the end of the court’s current term, in June. Many legal observers predicted that the justices would overturn part of the voting law in 2009, when the court had the same conservative-leaning majority, only to be proven wrong. 
 
 One important change, however, is that Chief Justice Roberts suggested in the 2009 ruling that Congress update its formula to determine which parts of the country should remain subject to the law. Congress has not done so. 
 
 The question at the heart of Wednesday’s argument was whether Congress, in reauthorizing the provision for 25 years in 2006, was entitled to use a formula based on historic practices and voting data from elections held decades ago. 
 
 Should the court strike down the law’s central provision, it would be easier for lawmakers in the nine states to enact the kind of laws Republicans in several states have recently advocated, including tighter identification standards. It would also give those states more flexibility to move polling places and redraw legislative districts. 
 
 The four members of the court’s liberal wing, citing data and history, argued that Congress remained entitled to make the judgment that the provision was still needed in the covered jurisdictions. The law passed the Senate unanimously and House overwhelmingly, by a vote of 390 to 33 in 2006. 
 
 “It’s an old disease,” Justice Stephen G. Breyer said of efforts to thwart minority voting. “It’s gotten a lot better. A lot better. But it’s still there.” 
 
 Justice Kennedy said that history taught a different lesson, referring to the reconstruction of Europe after World War II. “The Marshall Plan was very good, too,” he said. “But times change.” 
 
 Justice Breyer looked to a different conflict. 
 
 “What do you think the Civil War was about?” he asked. “Of course it was aimed at treating some states differently than others.” He also said that the nation lived through 200 years of slavery and 80 years of racial segregation. 
 
 Debo P. Adegbile, a lawyer with the NAACP Legal Defense and Educational Fund, which joined the government in defending the law, echoed that point. “This statute is in part about our march through history to keep promises that our Constitution says for too long were unmet,” he said. 
 
 The law was challenged by Shelby County, Ala., which said that its federal preclearance requirement, in Section 5 of the law, had outlived its usefulness and that it imposed an unwarranted badge of shame on the affected jurisdictions. 
 
 The county’s lawyer, Bert W. Rein, said that “the problem to which the Voting Rights Act was addressed is solved.” ||||| She said the focus of the Voting Rights Act had properly changed from “first-generation barriers to ballot access” to “second-generation barriers” like racial gerrymandering and laws requiring at-large voting in places with a sizable black minority. She said the law had been effective in thwarting such efforts. 
 
 The law had applied to nine states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia — and to scores of counties and municipalities in other states, including Brooklyn, Manhattan and the Bronx. 
 
 Chief Justice Roberts wrote that Congress remained free to try to impose federal oversight on states where voting rights were at risk, but must do so based on contemporary data. But the chances that the current Congress could reach agreement on where federal oversight is required are small, most analysts say. 
 
 Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined the majority opinion. Justice Ginsburg was joined in dissent by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. 
 
 The majority held that the coverage formula in Section 4 of the Voting Rights Act, originally passed in 1965 and most recently updated by Congress in 1975, was unconstitutional. The section determined which states must receive clearance from the Justice Department or a federal court in Washington before they made minor changes to voting procedures, like moving a polling place, or major ones, like redrawing electoral districts. 
 
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 Section 5, which sets out the preclearance requirement, was originally scheduled to expire in five years. Congress repeatedly extended it: for five years in 1970, seven years in 1975, and 25 years in 1982. Congress renewed the act in 2006 after holding extensive hearings on the persistence of racial discrimination at the polls, again extending the preclearance requirement for 25 years. But it relied on data from the 1975 reauthorization to decide which states and localities were covered. 
 
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 The current coverage system, Chief Justice Roberts wrote, is “based on 40-year-old facts having no logical relationship to the present day.” 
 
 “Congress — if it is to divide the states — must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions,” he wrote. “It cannot simply rely on the past.” 
 
 The decision did not strike down Section 5, but without Section 4, the later section is without significance — unless Congress passes a new bill for determining which states would be covered. 
 
 It was hardly clear, at any rate, that the court’s conservative majority would uphold Section 5 if the question returned to the court in the unlikely event that Congress enacted a new coverage formula. In a concurrence, Justice Thomas called for striking down Section 5 immediately, saying that the majority opinion had provided the reasons and had merely left “the inevitable conclusion unstated.” 
 
 The Supreme Court had repeatedly upheld the law in earlier decisions, saying that the preclearance requirement was an effective tool to combat the legacy of lawless conduct by Southern officials bent on denying voting rights to blacks. 
 
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 Critics of Section 5 say it is a unique federal intrusion on state sovereignty and a badge of shame for the affected jurisdictions that is no longer justified. 
 
 The Voting Rights Act of 1965 was one of the towering legislative achievements of the civil rights movement, and Chief Justice Roberts said its “strong medicine” was the right response to “entrenched racial discrimination.” When it was first enacted, he said, black voter registration stood at 6.4 percent in Mississippi, and the gap between black and white registration rates was more than 60 percentage points. 
 
 In the 2004 election, the last before the law was reauthorized, the black registration rate in Mississippi was 76 percent, almost four percentage points higher than the white rate. In the 2012 election, Chief Justice Roberts wrote, “African-American voter turnout exceeded white voter turnout in five of the six states originally covered by Section 5.” 
 
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 The chief justice recalled the Freedom Summer of 1964, when the civil rights workers James Chaney, Andrew Goodman and Michael Schwerner were murdered near Philadelphia, Miss., while seeking to register black voters. He mentioned Bloody Sunday in 1965, when police officers beat marchers in Selma, Ala. 
 
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 “Today,” Chief Justice Roberts wrote, “both of those towns are governed by African-American mayors. Problems remain in these states and others, but there is no denying that, due to the Voting Rights Act, our nation has made great strides.” 
 
 Justice Ginsburg, in her dissent from the bench, drew a different lesson from those events, drawing on the words of Dr. King. 
 
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 “The great man who led the march from Selma to Montgomery and there called for the passage of the Voting Rights Act foresaw progress, even in Alabama,” she said. “ ‘The arc of the moral universe is long,’ he said, but ‘it bends toward justice,’ if there is a steadfast commitment to see the task through to completion.” 
 
 In her written dissent, Justice Ginsburg said that Congress was the right body to decide whether the law was still needed and where. Congress reauthorized the law in 2006 by large majorities; the vote was 390 to 33 in the House and unanimous in the Senate. President George W. Bush, a Republican, signed the bill into law, saying it was “an example of our continued commitment to a united America where every person is valued and treated with dignity and respect.” 
 
 The Supreme Court considered the constitutionality of the 2006 extension of the law in a 2009 decision, Northwest Austin Municipal Utility District Number One v. Holder. But it avoided answering the central question, and it seemed to give Congress an opportunity to make adjustments. Congress, Chief Justice Roberts noted on Tuesday, did not respond. 
 
 Justice Ginsburg suggested in her dissent that an era had drawn to a close with the court’s decision on the Voting Rights Act, in Shelby County v. Holder, No. 12-96. 
 
 “Beyond question, the V.R.A. is no ordinary legislation,” she wrote. “It is extraordinary because Congress embarked on a mission long delayed and of extraordinary importance: to realize the purpose and promise of the Fifteenth Amendment,” the Reconstruction-era amendment that barred racial discrimination in voting and authorized Congress to enforce it. 
 
 “For a half century,” she wrote, “a concerted effort has been made to end racial discrimination in voting. Thanks to the Voting Rights Act, progress once the subject of a dream has been achieved and continues to be made.” 
 
 “The court errs egregiously,” she concluded, “by overriding Congress’s decision.”
– If today's questions from the conservative wing of the Supreme Court are any guide, the landmark Voting Rights Act of 1965 is doomed. In fact, writes Tom Goldstein at SCOTUSblog, expect a 5-4 decision in favor of striking down Section 5 of the act, one of its core provisions. It requires nine mostly Southern states to get federal permission when they want to change voting rules, and Antonin Scalia and others suggested the measure is no longer necessary, reports the New York Times. Scalia called it a "perpetuation of racial entitlement," Anthony Kennedy wanted to know how long Alabama had to live "under the trusteeship of the United States government," and Chief Justice John Roberts wondered whether people in the South were more racist than those in the North. The court's liberal wing made the case that the act is still necessary, with Stephen Breyer saying the "old disease" of racism, along with the desire to keep minorities from voting, remains. If the court strikes down the act, it would likely require Congress to come up with a new formula for it, but both the Times and SCOTUSblog think it's unlikely that would be politically possible.