Supreme Court to rule on Section 5

>>> taste this soup.

>>> good morning from new york. i'm chris hayes . the obama justice department filed a brief last night with the united states supreme court urging justices to strike down the defense of marriage act which the court will rule on later this year. we're going to be talking about mother supreme court case in just a second. and the president announced last night that american troops have been sent to build a new base there. right now i'm joining by "the nation" magazine editor. conservatives take aim at voting rights . ryan haygood a member of the litigation team arguing shelby v. holder before the supreme court this week. and bishop harry jones , a pastor at the mount mariah baptist church in colorado and in support of the voting rights act . in 1965 , over a century of the emancipation proclamation , signed into law, people of color with their exercise of the right to vote. the heart of the voting ryes action is section five which subjects any voting changes in the south and some other covered jurisdictions with a history of racial discrimination to a process known as preclearance. meaning these states must first clear any changes that affect the justice department or the federal court to make sure they don't have a racially biased fact. when the supreme court hears shelby versus holder that essentially says things have changed in the south . it's now antiquated, unnecessary and therefore unconstitutional. undeniably, the south say different place today than it was in 1965 . and yet not one african-american has been elected to state office in mississippi, louisiana or south carolina . in the last few months states covered under section five and not covered have shut down voting. the i.d. laws, last october, a panel of federal judges blocked south carolina 's proposed voter i.d. law from taking effect. and john bates wrote one cannot doubt the vital function that section five of the voting rights act has played here. the supreme court under roberts has hinted that has run its course. president obama approved a local exemption in section five. and in the oral arguments justice robert questions if section five is necessary and why it burdened separate jurisdictions differently.

>> so is it your position that today southerner, more likely to discriminate than northerners?

>> i wouldn't frame it in that way, chief justice robert.

>> so your answer is yes?

>> i think it's fair to say that the pattern has been more repetitious violations in the covered jurisdictions and more one off discrimination in other places.

>> well, it's remarkable that the case before the court is at its outcome more or less hinges on the u.s. supreme court . five justices deciding whether or not to strike down and reauthorized four times by massive overwhelming parties of congress and presidents of -- well, only republican presidents. because of whether the court decides the south is no longer racist. it's great to have you all here. i think this case, we've covered a bit on the network. but i think you cannot overstate the importance of the case. it's probably one of the biggest cases the court has had in a long time. and bishop, i want to begin with you. thank you for traveling up here in new york from shelby county , alabama . one of my best friends lives in alabama . i love the state of alabama . i want to go to you first. because the basic argument here when you clear away the constitutional arguments being made, the legal arguments, part of what's so strange about the case is it's going to come down to a determination of a basic sociological fact which is how imbedded is racism in areas that are covered? how much is this law still justified by the fact that there is still the wielding of power and the instant towards exclusion on the part of people that wield power in the south in this long history. so my question to you is, what's your sense of that? what would be your answer be in you could talk to the justice of what it's like in shelby what would you tell them?

>> i would definitely assure them that racism is still alive. it hasn't gone anywhere. i think racism has taken a different face. in the earlier days it was blatant. i mean, they didn't hide it. now, it's kind of concealed. it travels in a different vehicle now. and so, i've lived in alabama all of my life. and i'm kind of a bloodhound when it comes down to racism. i sniff it out, you know. and it is still alive. and i think that sometimes we paint a picture on the surface, but i think that being a resident of shelby county i look beneath the surface.

>> so, i mean, the bloodhound metaphor is great, right? because the weird thing is we're going to unleash these nine justices sniffing this out. not from shelby county , not from the covered jurisdictions. so how would you convince me, how would you convince chief justice roberts or justice kennedy , that things will go very badly if they strike this down?

>> well, i mean, you know, we've already seen some things. we've had one of our councilmen, mr. earnest montgomery, because of the way the district was divided, lost the election. even on top of that when the d.o.j. told them or advised them not to have the election, they went on with the election anyway.

>> this is a black elected member of the city council , is that right?

>> that's correct. because of that, he lost his seat. d.o.j. came back -- you know, deemed it, i guess, unconstitutional. and they had to redo. and they had an at-large vote and he was the top vote-getter. it was designed to dilute the black community.

>> is this what this case ultimately rests on? perfect for this, i've worked in the court . i've spent some time in the court . how fact down this case seems. it really seems like the court is going to make some determination about this basically sociological fact about the covered jurisdictions which is how much racism is there? how imbedded are these practices? it seems a strange thing for the court to be doing?

>> it is a strange thing, chris. what's interesting congress asked all these questions about whether or not racial discrimination is prevalent in the covered jurisdictions. they analyzed looking at the covered jurisdictions versus the uncovered. i know there's rhetoric that he didn't do that. but they did. and congress looked at it.

>> 21 hearings.

>> yeah, right. it's sortch this huge process, exactly what congress is supposed to do. i think what you're getting at, the court defined the parameters how the court can act. i guess for the '90s said, look, here's the work where you can act. here's unconstitutional conduct and you can act in this world.

>> right.

>> and they actually held up the voting rights authorization for '92 as the gold standard for how congress should act. and congress acted in that way in this instance, so what's the problem.

>> how do we lose?

>> can i just say, it's not racism like it was in 1965 , the george wallaces of the world are gone. but it's political racism, in the sense, luke in the south . the southern gop is 88% white. the southern democratic party is 50% white, 56% african- americans and the rest are minority groups . when they're growing in the south are aligning themselves in the democratic party , the gop is passing voter suppression laws in response to that. it doesn't matter if it's outright racism it has the same effect.

>> i think it pushed back for a second, not completely, but i actually think the power of the section five is not on the national level. or not the congressional level. it's important there what we just heard about what's happening in clara and shelby county , we're talking about water districts. county commissions. police juries, local stuff where party doesn't matter. it's not partisan.

>> i think it's important to take away from what patrick jones said, manifested in places covered by sections five is synonymous with the original discrimination we saw in 1965 . this is really part of what dates back to the beginning in alabama ?

>> what do you mean by that?

>> the city of calera , in 2008 , submitted by the city of calera that sought to eliminate the sole african-american district by reducing the black population from 70% to 29%.

>> right.

>> though the department of justice rejected it as discriminatory, his redistricting plan, the city of calera never held an election which the sole city councilman who is also a party in this case lost his seat. this is after the d.o.j. rejects the plan. thankfully, under section five, the department of justice required the city to redraw the ballots in a nondiscriminatory way and hold another election in which we saw the african- americans , because of the votes of the african- americans in that district in calera regain his seat. and this practice is exactly what voters in alabama saw when the voting rights act was passed in 1965 .

>> an iconic example of this is kilmichael, mississippi. the consensus, the town has a population of 830 of whom 52.4% are black. currently the mayor and all five board members are white. on may 15th , 2001 , with no notice to the community, the board unanimously voted to cancel the general election . first the decision toe cancel came only a majority of the registered voters and the release of census data indicated that black persons were now a majority of the town.

>> you see this all the time. weird changes being promoted just when the latino or african-american community is able to realize some electoral power .

>> i want to talk what the numbers look like. and the argument that people in favor of striking down section five are making which is basically the act should be a victim of its own success. the fact that the numbers are good enough.

>> one very important point that needs to be brought to the table, also, as mr. managemenontgomery, he served there. you have other councilman aware of the fact that the d.o.j. canceled the election.

>> right.

>> and owl of the councilmen knew except mr. montgomery who was the black councilman. he didn't even find out about it until after, you know, the election.

>> this is a little -- but i want to talk more about that right after