Analysis

With Justice Anthony M. Kennedy voicing concern over Congress intruding on the sovereignty of some states but not others, the Supreme Court on Wednesday looked for ways to put some check on federal management of state and local elections systems even when that power is used to assure minorities’ voting rights.

The Court’s oral argument on the constitutionality of Section 5 of the Voting Rights Act of 1965 showed vividly that Kennedy almost surely holds the decisive vote. And, just as clearly, he put his concerns about the law on full display, talking of the burdens on the states and the differing treatment of them, even while saying that no one questions the “essentiality” of some federal role against racial bias in voting procedures.

With other developments during a hearing that ran 11 minutes beyond the allotted hour, it seemed entirely likely that the Court could interpret more generously a part of Section 5 that would let political jurisdictions out from under it if they have a record against discrimination.  An expanded reading of the law’s “bailout” provision was extensively explored, perhaps as an alternative to nullifying Section 5 outright.

The hearing ran for 15 minutes — half of the time available to the challengers of Section 5’s constitutionality — before the Court moved away from discussing the “bailout” provision and turned to the constitutionality of the 25-year extension of Section 5’s mandate that states and local governments covered by it must get federal permission for any change in voting practices.

Early on in the discussion of the “bailout” option, Justice Kennedy commented that the Court has “some latitude” in interpreting the law, and hinted that the Court might use that discretion to find a way to make it more practical for a government unit subject to the law to conduct its elections.  He also suggested, later, that if the “bailout” provision were found to be “an illusion,” the Court might make read the Act in a way that would make it work.

A focus on Kennedy’s reaction was evident, after other Justices clearly seemed to be lining up — perhaps in equal but opposing blocs — on Congress’ power to keep Section 5 on the books for another generation.

If, in fact, it turns out that there are four votes to strike down the extension of Section 5, the question would remain whether Justice Kennedy would be willing to put himself in the position of providing a majority to invalidate a statute that even he conceded had been “very effective.” He provided some reasons to doubt that he would — if there were an acceptable alternative. And, in the past, he had said that racial bias is a continuing problem in American society.

Throughout his years on the Court, Kennedy has been energetic in protecting the stature of the states, and has persistently defended their role in the constitutional order.  Those views were newly expressed in many of his comments on Wednesday.

He pressed a federal government lawyer to say whether “the United States takes the position today” that “the sovereignty and dignity of Georgia is less than the sovereign dignity of Ohio, and that of Alabama less than that of Michigan?”

When Deputy U.S. Solicitor General Neal K. Katyal responded that Congress had focused on those states with “a historical record of discrimination,” and that difference “justified the remedy,” and added that Section 5 “is one of the most transformative acts in American history,” Kennedy responded that “no one questions the essentiality of the Voting Rights Act,” but that the question now was on its 25-year extension with the same differing treatment.

The Justice said that, at the time the 1965 Act was first passed, discrimination against minority voting was “unrelenting and ingenious” and that “democracy was in shambles,” but he added: “That is not true any more,” at least not sufficiently so to require some states “to give up their sovereignty.”

Section 5, Kennedy went on, “has been very, very successful” in ending discrimination in voting, but the issue was whether “it is justified if other states are not covered.”  He wondered why Congress had not done more to compare racism  in voting practices in states across the Nation, and not just in those with a history of bias.  “It’s just not clear to me that Congress addressed this issue as to the rest of the country,” he said.

And he noted that, for the states covered by Section 5, it costs them $1  billion over a ten-year span, and suggested that that was relevant to the choice Congress had made about who was covered.

Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia emerged as the strongest critics of Section 5, with Justice Samuel A. Alito, Jr., somewhat less so, although he, too, was highly skeptical of continuing to apply the law to a local governmental unit that “had done nothing wrong.”

The Chief Justice said that “no one doubts the history” that led to the 1965 law’s enactment, but then wondered “at what point does that history stop justifying its application to some areas” but not others. “At some time, it looks like it’s going to go on forever.”

Roberts questioned a civil rights lawyer defending Section 5, Debo P. Adegbile of the NAACP Legal Defense Fund, whether it was “your position that Southerners are more likely to discriminate than Northerners?”  The attorney responded that, in some areas of the country, discrimination was much more “repetitious.”

Justices David H. Souter and Stephen G. Breyer were Section 5’s most energetic defenders, reciting lengthy lists of Congress’s findings of continuing racial discrimination in voting.  Souter told the lawyer challenging the extension, Gregory S. Coleman of Austin, Texas, that, when the record actually assembled by Congress is examined, “I don’t understand how you can maintain that things have radically changed. That seems to deny the empirical reality.”

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Election law expert Rick Hasen followed the argument closely in a live blog yesterday; it can be read here.  Rick has this followup post Thursday:

NAMUDNO: The Answer to My Question Appears to Be “Yes”

My Slate commentary title posed a question that most observers now believe is most likely to be answered in the affirmative: a majority of the Court is likely to kill section 5 of the VRA, though some hold out hope of Justice Kennedy finding a way to forestall that event a bit or lessen its blow.

One thing that is clear to me is that if this case stands and falls on empirical evidence of intentional discrimination by the states, section 5 falls. Objection rates are inadequate both because their number is so low and because many of the objections were not interposed for intentionally discriminatory conduct. The Section 2 analysis also is methodologically questionable.

For section 5 to stand, Justice Kennedy would have to accept at least one of these three points: (1) empirical evidence cannot be gathered effectively, precisely because section 5 has been such a good deterrent, and any attempt to compare covered v. non-covered jurisdictions now is bad social science because, as Ellen Katz put it, one patient has undergone treatment and the other has not; (2) Congress is entitled to substantial deference, perhaps especially in the area of eradicating the effects of past discrimination; (3) preclearance is not all that burdensome for covered states, and the reason that more states have not tried to bail out is that submitting preclearance is cheaper than bailing out.

Justice Kennedy, however, in his questioning seemed to reject all of these arguments. He repeatedly called for comparative statistics, he stated that deference was not appropriate given the high federalism costs (the “lesser sovereignty” of Alabama), and his belief that the law imposes “substantial burdens” on covered states. My sense (channeling my inner Rick Pildes) is that these burdens are as much expressive harms as real financial burdens: the federal government is sending a message that these covered states are less entitled to their full sovereignty than other states.

Though I agree with Nate Persily that Justice Kennedy may not want to be the one to cause the headline: “Supreme Court Kills Voting Rights Act” (or, more accurately, kills section 5), he sure seemed more disturbed by the prospect of letting the law stand.

I have been warning about the problem with a straight-out preclearance for years, but the civil rights community decided to roll the dice, and got Congress to go along with them. I really thought my proactive bailout amendment would have helped a tremendous amount toward preserving section 5’s constitutionality.

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