Sherrilyn Ifill, of the NAACP Legal Defense Fund, told NBC’s Andrea Mitchell that she “was not at all discouraged” by the argument presented against the Voting Rights Act of 1965 before the Supreme Court on Wednesday. Her confidence remains strong even as NBC's Pete Williams reports that five of the justice are likely to strike down section 5—a key part of the act.
Section 5 of the Voting Rights Act has faced the most scrutiny because it says that some states must receive pre-clearance, or permission from the Justice Department, to make any changes to their voting process. Iffill said on Andrea Mitchell Reports that the court’s most “contentious questions” focused on that section and “about the decision that Congress made to continue covering the same jurisdictions that it has covered and whether that was appropriate given the changes that have happened in America since the act was first enacted in 1965.”
Ifill called it a “very rigorous argument,” but also said, “that’s as it should be.”
“This is a serious matter,” she said. “When the court heard this issue in the Northwest Municipal district case in 2008 – the court also engaged in rigorous questioning. So we weren't at all put off by that but what we were very thrilled to hear was that all of the members of the court that addressed the issue seemed to be quite clear that Shelby County Alabama has not made the kind of progress that would allow it to come out from under the Voting Rights Act.”
Ifill noted the concerns expressed by the justices about whether Congress was in “the best position to determine whether discrimination and voting has changed sufficiently to warrant the continuation of the act.”
She reminded Mitchell that the coverage formula enacted in section 5 isn't “static” and that there is a statute that would allow jurisdictions to both bail out and bail in under that law. According to Ifill, if the states covered in section 5 have a clean voting record of ten years, they can opt not to be included in section 5. In contrast, jurisdictions that “have demonstrated to have violated the constitution in voting discrimination can be brought under the coverage of section 5.”
Ifill pointed out why section 5 is so valuable citing a case in Alaska where a jurisdiction attempted to move a polling place before an election from a native Alaskan village that would require those voters to take a plane or boat to vote. Section 5 of the Voting Rights Act allowed the Justice Department to step in and prevent this from happening.
Mitchell also asked Ifill about Chief Justice John Roberts questioning attorneys regarding which states had better voting records. Roberts implied that Mississippi had a stronger one that Massachusetts. But Ifill was quick to discredit Robert’s assentation saying. “the record he was referring to was the record of registration between whites and blacks and turnouts between whites and blacks” and that the Chief Justice limited his questioning.
“This is not 1965. The only indicators of voting discrimination are not registration and turnout,” Ifill said. She argued that annexing, redistricting, polling place changes and cancelling elections all must be considered as well.
“That data is not the data that Justice Roberts was presenting,” Ifill said. “He limited his presentation to the very narrow issues of registration and turnout. “
Ifill stressed that Congress enacted section 5 in 1965 because they couldn't predict what voting discrimination would look like in the future.