Following through on the deep constitutional concerns stated in its prior Northwest Austin decision, a majority of the Court seems committed to invalidating Section 5 of the Voting Rights Act and requiring Congress to revisit the formula for requiring preclearance of voting changes. The vote seems quite likely to be five to four. The more liberal members pressed both the narrow argument that an Alabama county was not a proper plaintiff because it inevitably would be covered and the broader argument that there was a sufficient record to justify the current formula. But the more conservative majority was plainly not persuaded by either point. It is unlikely that the Court will write an opinion forbidding a preclearance regime. But it may be difficult politically for Congress to enact a new measure. More analysis soon. 
 
 Recommended Citation: Tom Goldstein, From the Shelby County argument, SCOTUSblog (Feb. 27, 2013, 10:55 AM), http://www.scotusblog.com/2013/02/from-the-shelby-county-argument/ ||||| 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.”
– 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.