Defenders of the law claim removing the provision would be a step in the wrong direction with respect to protecting against racial discrimination, which still pervades parts of America.

At the heart of the matter is the Voting Rights Act, signed into law in 1965. Provisions of the Act require election law “preclearance” or federal permission prior to making changes in voting procedure. Also relevant is the Fifteenth Amendment that guarantees the right to vote will not be “denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude,” and also states, “Congress shall have the power to enforce this article by appropriate legislation.”

The Supreme Court justices offered inquiries into a number of different elements contributing to the makeup of the law now and at the time of its conception. Justice Antonin Scalia questioned if Congressional support for continuing preclearance practices is a function of its apparent need or what he called “racial entitlement.”

“And this last enactment, not a single vote in the Senate against it. And the House is pretty much

the same,” Scalia said during oral arguments of Shelby County v. Holder. “Now, I don't think that's attributable to the fact that it is so much clearer now that we need this. 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.”

In 2006, Congress prevented the preclearance provision of the law from sun-setting, although some think the means used to determine what states are subject to the law need to be revamped. Others think the law is no longer necessary since many of the measures the law sought to remedy, like literacy tests, are no longer significant problems. Defenders of the law call it one of the most effective anti-discrimination laws ever enacted and are calling for it to be kept intact.

There are nine states and a number of other municipalities subject to the provision, which is based on a formula dealing with a number of factors, including voter turnout within the covered states or municipalities.

The states are: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia. Parts of other states, including areas of New York City, are covered by preclearance.

Bert W. Rein, of Wiley Rein LLP, filed the writ of certiorari for Shelby County, Alabama, and made oral arguments to the Supreme Court last month. He said while there was once justification for the formula Congress uses to determine what places will be the target of remedies to voter discrimination, that formula is no longer appropriate. He also said the law was originally planned to sunset five years after being enacted, but has now been renewed several times, and is now an infringement upon state’s rights protected in the Constitution.

“The formula was sound in practice because it accurately captured those jurisdictions where ‘reliable evidence of actual voting discrimination’ was so severe and distinctive that the disparate application of preclearance was constitutionally justified,” he stated in the writ of certiorari filed in July, 2012.

However in a recent email interview with Progressive Law Practice he said things have changed since the law’s inception and many of the discriminatory practices Congress sought to fix are no longer a reality.

“We argued both that there was insufficient foundation for preclearance itself—i.e., that the evidence upon which Congress acted was not comparable to the Congressional record on which the Court decided [previous cases dealing with the matter] Katzenbach and Rome—and that the formula violated the equal sovereignty of the States even if one assumed that Congress could compile sufficient evidence to justify continuing or initiating preclearance in some jurisdictions,” he said.

However, Pamela S. Karlan, a Stanford Law School Professor who filed an amicus curie brief on behalf of members of the United States House of Representatives Committee on the Judiciary, said striking down the law would “eliminate one of the most effective remedies Congress has had for preventing discrimination.”

Karlan acknowledged there has been progress with respect to discrimination, but getting rid of the preclearance requirement works against the gains already made. “The formula is a reflection of an underlying problem,” she said. “Things are better, but they’re better, in part, because Shelby County is taking this medicine.”

Justice Sonia Sotomayor said almost every conceivable means to derive a formula to determine preclearance-covered states would include Alabama. “And so the question becomes, why do we strike down a formula … which under any circumstance the record shows the remedy would be congruent, proportional, rational, whatever standard of review we apply, its application to Alabama would happen.”

Leadership from the National Association for the Advancement of Colored People said the pending decision could adversely impact five decades of voting protections.

“The NAACP has always fought for voting rights and will never stop advocating for unfettered access to the ballot box for all Americans,” says Roslyn M. Brock, chairman of the NAACP National Board of Directors, in a statement. “We are driven by the legacy of those who sacrificed time, resources, and in many cases, their lives for this fundamental right. We must ensure that Section 5 of the Voting Rights Act is preserved."

Both Rein and Karlan admitted a degree of unpredictability with respect to this matter, and in general, any case brought before the nation’s top court.

Rein says appearing before the Supreme Court has advantages and disadvantages compared to coming before other judicial bodies. When a large number of briefs are filed there could be a broad range of issues that catch the eye of one or more justices, sometimes making questioning harder to predict. However, advocates who appear before the Supreme Court are often especially familiar with a case as they have been likely dealing with the matter as it bubbled up to the country’s top court.

Karlan said now that the justices have heard the arguments and considered the briefs, the fate of the law rests with the judiciary. “It’s very hard to predict what the Supreme Court will do,” Karlan says.

Article written by Dan Sabbatino.

Justice Scalia