Lewis was one of many who rallied outside the court this morning for the Voting Rights act. They were there on a day the justices heard a challenge to a key section of the law it requires states with a history of discrimination mainly in the deep south to get federal approval, or pre clearance, before changing voting procedures or districts. Lewis argued the provision known as section five must be preserved. There are still forces in this country that want to take us back to another period, but were not going back. Weve come too far. Weve made too much progress to go back. The literacy test may be gone; but people are using other means, other tactics and techniques. So we still need section 5 and thats why we are here today standing up for the Voting Rights of all americans. applause brown in 1965, lewis helped lead 600 people across the Edmund Pettus bridge in selma, alabama, where police beat them with nightsticks and state troopers fired tear gas. The event became known as bloody sunday and proved a tipping point. President Lyndon Johnson and Congress Responded with the Voting Rights act. Lawmakers have renewed the law ever since, most recently in 2006, with overwhelming support. But Shelby County, alabama says the law has outlived its time. Frank ellis is the county attorney. We ask for some recognition that we and these other covered jurisdictions have made Great Strides over the last 48 years. I was 24 years old. Ive been the county attorney since 1964. I was 24 years old when we came under section 5. Im 73 last weekend and were still under the same formula, none of which has applied to us in many, many, many years. Brown president obama has recently voiced support for upholding the Voting Rights act. Hes said that if part of the law is struck down, it will be harder to prevent acts of voting discrimination. The case provoked some tough questioning at the court today. And of course marcia coyle of the National Law Journal was there and is back with us tonight. So, marcia, tell us a little bit about the challenge from Shelby County. Why this particular county whats their argument . This case was teed up by an organization here in washington, d. C. Known as the project for fair representation. The organizations goal is to eliminate racial and ethnic preferences. The head of the organization looks for clients to bring lawsuits targeting racial or ethnic preferences, it found Shelby County, the Organization Also finds a lawyer, it found burt rhine, a well known, well respected lawyer here in washington, d. C. And it funds the litigation. Shelby county agreed to do it, challenged section 5, they went through the lower courts in may. A threejudge panel of the federal Appellate Court here in washington upheld the law 21. Pelley essentially saying that we dont need it anymore and we want to be we dont need this federal inquisition. You mean Shelby County . Yes. Today in the court mr. Rhines main argument is that the formula used to determine which jurisdictions in the country should be subject to section 5s requirement that any voting change precleared by the department of justice or a Federal District court in washington is outdated that it did serve its purpose when its designed in 1964 to target that discrimination prevalent at the time. But when Congress Took up the act in 2006 it didnt do a statebystate analysis as it should have he believes to determine whether certain states should newly be covered or old covered states be taken out. Brown this sounds like very heated and dramatic questioning. It was very intense. Intense is your word. It sounds as though that argument found favor from the conservative justices. Tell us about what that, what you heard from them. They focused for their questions for the lawyer for the United States, solicitor general donald verrilli. Justice scalia said when Congress First enacted in the Voting Rights act in the senate there were double digit votes in opposition to it. With each reauthorization of the Voting Rights act the number of opposing votes decreased until in 2006 there were no opposing votes and the house had a similar record and he said this wasnt a attribute utility, he didnt think, fortothe need for the Voting Rights act but to what he called the phenomenon of racial entitlement. Once a society gives a racial entitlement, he said, it can never get out of it. Brown therefore that the courts needed to act, step in . He said it wouldnt end unless a court found that the entitlement no longer comported with the constitution. Chief Justice Roberts pointed out to mr. Verrilli that the state that had the worst disparity and registration in voting between African Americans and whites was massachusetts and one of the best with that record is mississippi. He asked at one point are the citizens in the south more racist than the citizens in the north . Mr. Virilelys main argument is, well, congress built a record, it built a record of 15,000 pageses to show that there was current discrimination and it had a right to look at past discrimination. Great deference is owed to congress in this area. Brown and on the other side, the more liberal justices i saw justice breyer, he referred to this as an old disease, something thats gotten better but is still there and we still should keep the yes, he asked mr. Ryan why wouldnt we keep a remedy that was working in place as we would with an old disease we were trying to get rid of . Again, mr. Ryan responded that the remedy worked for the disease that the act was targeted at in 1965, a new remedy is needed. Brown in a case like this, is one of the justices considered the key swing . Often Justice Kennedy plays the role. In race cases it really is but i have to say today he sounded skeptical of the governments arguments. You really cant predict how this sort of thing is going to turn out. In 2009 everybody thought section 5 in another case would be struck down but the court didnt. Brown is there as then a kind of narrow way out of this or do you get the sense that theyve signaled that they want to resolve the big question here. Well, since so much of the focus was on this coverage formula, how congress determines who has to be covered, its possible the court could find that the formula is outdated, strike that down and leave section 5, the preclearance obligation, in place. But many believe that without the coverage formula section 5 wont work. Brown all right, marcia, thanks as always. Judy woodruff picks up the defrom there. Woodruff now, each side gets a chance to weigh in. Hans von spakovsky is a senior legal fellow at the Heritage Foundation and filed a brief in this case alongside former Justice Department officials. And Sherrilyn Ifill is president and directorcounsel of the naacp Legal Defense and educational fund. An attorney from her group argued before the court today. Full disclosure she is gwens cousin. And welcome to you both. Thank you. So, Hans Von Spakovsky, to you first, what is the best argument for keeping the Voting Rights act for getting rid of section 5 of the Voting Rights act . Section 5 was an emergency provision. It was supposed to be temporary, only supposed to last five years and it was put in place because of widespread and persistent discrimination. The conditions that justified in the 1965 dont exist today and, in fact, the Supreme Court said back in 1966 that it was an extraordinary intrusion into state sovereignty but it was justified by the unique circumstances. That kind of widespread systematic official discrimination does not exist. There are still incidents of discrimination, but those can be remedied by section 2 of the Voting Rights act. Thats the nationwide permanent provision that bans Racial Discrimination in voting. Woodruff sherrilyn, his argument is widespread Racial Discrimination doesnt exist anymore therefore that provision section 5 isnt needed. Well, congress had to take up that question in 2006 and they did and over the course of nine months they determined that it does exist. The 15,000 pages of testimony that were described earlier, the 90 witnesses who testified, the 1,200 objections that the Justice Department had to make to voting changes, the 650 objections over 400 of which were a determination that there was discriminatory purpose in voting changes throughout the jurisdictions that are covered by section 5, that was the evidence that was before congress in 2006 and based on that evidence, not opinion, they determined that we still do need section 5. Woodruff how does that square, Hans Von Spakovsky, with you saying there is no widespread Racial Discrimination if there are that many examples of violations or alleged violations how does that square with what youre saying. Lets talk about alabama for just a second. In the last 12 years theres been exactly one objection made in alabama. And over the last 20 years pelley when you say objection, objection to an objection to a voting change that was submitted to the Justice Department for preclearance. Out of the 12,000 jurisdictions that are covered, thats all states, municipalities, counties, city governments, in the last ten years there have only been 37 objections. In fact, today chief justice asked the solicitor general in 2005 the year before renewal how many submissions were made of voting changes . 3,700. How many objections were made . Just one. The point of that is there is no longer systematic widespread discrimination and the record that congress established did not show that. Woodruff sherrilyn . Thats too narrow a vision of what section 5 does. Objections are when the community or jurisdiction proposes a plan, the Justice Department reviews it and determines that that plan is going to discriminate against minority voters. But there are other things that happen as well. Sometimes the jurisdiction submits a plan, the Justice Department says we think this plan is problematic, give us more information. And the jurisdiction at that point will decide to withdraw the plan. There are over 800 instances in the period that congress studied in which a jurisdiction did precisely that. Woodruff so what about that point Hans Von Spakovsky . Over the lifetime of section 5 there have been Something Like over 120,000 submissions. The number of objections is extremely small even when taking into account that particular factor. And the point is woodruff when a provision was when a jurisdiction took it back and changed it . Is that what youre saying . Yes. But the point of that is those instances can be remedied through section 2. Thats when the government or private citizen goes to court and proves discrimination. Section 5, like i said, its an intrusion to state sovereignty because you cant make a change without getting the preapproval of the government and that violates basic notions of sovereignty and you can only do it if you have extraordinary circumstances. Those dont exist anymore. Woodruff shar sherrilyn, why isnt section 2 i know were using a lot of terminology here, but the division that applies to the whole country. That enables you to sue after discrimination has happened. But what do you do in a circumstance in which the poling place as happened in a native alaskan village just in 2008 that the jurisdiction decides to move the polling place out of that native alaskan village to a location that would require those villagers to take either a plane or a boat to vote . What do you do when that poling place change happens right before an election . Is it enough to say i can file a lawsuit . What congress wanted under section 5 was to stop the discrimination before it happened and what they said in 1965 was not that they recognized that it was an intrusion but what they said is we need something that allows us to get at voting discrimination we cant even imagine yet. That will allow us to capture all of the ingenious methods that jurisdictions might use to discriminate against minority voters. Woodruff why isnt it better to move ahead of time rather than waiting until after a violation has happened. Well, that issue came up in the court today and one of the justices said well, apparently the government hasnt heard of the fact that you can go immediately to court and get a temporary restraining order to stop that kind of behavior. The point of this is that under section 5 when you do something that is just unique in american jurisprudence, the burden of proof is not on the government is to show discrimination has occurred. The burden of proof is on submitting jurisdictions to somehow prove a negative that they didnt discriminate. And you can only put that kind of burden on if you have the kind of circumstances that justify it. Under the Supreme Courts own holding in 1966, that doesnt apply today. Woodruff how do you answer that . This is precisely what congress intended. What congress wanted was for the burden to be removed from the victims of discrimination and placed on the jurisdiction. And the Supreme Court has looked at this four times. The Voting Rights act and the constitutionality of section 5 has been challenged four times and each time theyve upheld the authority of congress who has the power under the 15th amendment to protect the right to vote and to keep denials of the right to vote based on race and color from being enacted. And what congress tried to do was to make sure that not the victims of discrimination could bring lawsuits, costly lawsuits, but that instead the jurisdiction would have to submit to the federal authority to determine whether or not that voting change was discriminatory. Woodruff what about his other point about the option of doing a temporary injunction. That still requires those native alaskan villagers to find a lawyer, go into court and find a lawsuit. Thats what congress didnt want. Its actually ironic that people are saying its better to have costly litigation that lasts years than to have an administrative process in which a jurisdiction can simply submit the documentation to the department of justice and get preclearance. Woodruff shes talking about what congress intended when it twhroe law. I know, but what Congress Said when it wrote this law that this was supposed to be a temporary provision that would only last five years. Weve now renewed it for a fourth time. It will last until 2031 and an important issue we havent discussed is the triggering formula. The jurisdictions that are covered today are covered based on registration of turnout data in the 1964, 196 and 1972 elections. If you updated it they would no longer be covered. Woodruff what about this out of date point . Were talking about reauthorization. In 2006 congress looked at the jurisdictions to determine what is happening in those just tk eubss now. Thats the 15,000 pages of testimony. And its based on that determination of the ongoing nature of discrimination in those jurisdictions they authorized. Moreover, the act has built into it a process from getting out from under section 5. Its called bailout and every jurisdiction thats sought bailout has been granted bailout. Off clean voting record for ten years you can get out from under section 5, New Hampshire has a pending bailout petition right now. Many people think the state of virginia is close to be able to bail out. All the jurisdiction has to do is have clean hands which alabama and almost every justice in the court concreted today does not. Woodruff well leave it there. Share lynn aoeu if i feel, Hans Von Spakovsky, thanks very much. Ifill you can listen online to a collection of viewer stories about the Voting Rights act as part of our special oral history project. And still to come on the newshour banning assault weapons; working from home; feeling the impact of warmer weather; the life of pianist van cliburn and honoring civil rights pioneer rosa parks. But first, with the other news of the day. Heres hari sreenivasan. Sreenivasan housing is heating up and its taking wall street with it. The National Association of realtors reported today that january contracts for home sales hit the highest level in more than two years. The stock market reacted with a sharp rally. The Dow Jones Industrial average gained 175 points to close at 14,075. Its up nearly 300 points in two days. The nasdaq rose 32 points today to close at 3,162. The latest Nuclear Negotiations with iran ended today with talk of concessions by the west and an upbeat appraisal from tehran. Margaret warner has our report. Warner the two days of talks, in almaty, kazakhstan, ended with no breakthrough only an agreement for more talks in march and april. But there was something new the u. S. And five negotiating partners reportedly offered to ease some economic sanctions. Irans principal negotiator, saeed jalili, called it a turning point. translated some of the issues in th