Oral Argument on the Voting Rights Act Challenge


The Supreme Court on Wednesday hear oral argument in Shelby County v Holder, the case challenging Section 5 of the Voting Rights Act, which requires that states and counties with a history of suppressing the vote on racial grounds get permission from the DOJ or a panel of federal judges before making any changes to their voting laws that affect racial minorities. And it looks as though that law is in serious trouble now, with four clear votes to strike it down and Kennedy seeming to lean that way as well.

Lyle Denniston has a recap of the oral argument, during which Justice Scalia calling the law a “perpetuation of racial entitlement.” Seriously? What “entitlement” is that? This isn’t a welfare program, for crying out loud, it’s a law designed to prevent states from making it more difficult for racial minorities to exercise their right to vote, something those states have a long history of doing. Indeed, Shelby County itself is still bad enough that their lawyer didn’t even attempt to defend its recent actions:

Within the first minutes of the argument of the county’s lawyer, Washington attorney Bert W. Rein, Justice Sonia Sotomayor suggested that Shelby County’s record on minority voting rights had remain “pretty much” unchanged from the past. “You may be the wrong party bringing this,” she commented.

Justice Elena Kagan soon recited the current record of Alabama under existing civil rights laws, noting that the state would be the No. 1 offender in one category, and the No. 2 in another. “Under any formula that Congress could devise [for coverage under Section 5], it would capture Alabama,” Kagan said.

Rein commented in reply that the county was challenging the law as it was written, not as it would apply to any particular jurisdiction, and that Shelby County was covered only because the entire state of Alabama was.
Justice Sotomayor moved in to emphasize her and Kagan’s point. Under the record that Congress had before it in renewing the law, Sotomayor said, the approach Congress took would be appropriate for Alabama. Rein again said that the formula of coverage is why Shelby County is covered.

But the real wildcard is Kennedy, as usual. Denniston says he seemed to lean toward the law being unconstitutional, but also gave hints that he might be willing to find some compromise to maintain the law, perhaps a narrow ruling or a procedural one that avoids ruling on the merits:

Naturally, that meant the potential swing vote would be held by Justice Kennedy. His heart evidently was with the sentiment that Congress’s failure to make the law’s key Section 5 reach more widely and its failure to change the Section 4 formula by which states and local governments get covered should lead the Court to strike down one or both of those provisions.

Kennedy most clearly displayed that sentiment when he put a portentous question to the federal government’s lawyer, Solicitor General Donald B. Verrilli, Jr. It was a rather peculiarly worded question, but its thrust was very clear. If Alabama wants to put up monuments to the heroes of civil rights, in order to “acknowledge the wrongs of its past,” the Justice asked, ”is it better off doing it if it’s an own independent sovereign or if it’s under the trusteeship of the United States government?”

Verrilli, who had just told Kennedy that the government does respect the system of American federalism, had no direct answer to the tougher question. He felt a need in response to repeat the claim that Congress had acted cautiously in 2006 when it reenacted the 1965 law, and took “a more prudent course, even given the federalism concerns.”

But those who had attended the Court’s last hearing on the constitutionality of the 1965 law, four years ago, could recall that Kennedy was equally disturbed then about the threat he saw to states’ rights, and yet the Court concluded that case without striking down the law. It found a way to ease the burden of the law, for local governments, and left it at that…

It is not surprising, of course, that the Court’s more liberal members would want to find a way to avoid an ultimate decision to strike down the historic law, and they — like everyone else in the courtroom — could sense that that was a real possibility.

But what was potentially significant was that Kennedy perked up. He noted the questions by Kagan and Sotomayor, and asked Rein: “If you would be covered under any formula, why are you injured under this one?” The lawyer said he did not agree with the premise.

Kennedy persisted, saying that Rein should deal with “the hypothesis” that any formula would capture Alabama. Why would Alabama have a right to complain? Rein then challenged the authority of Congress to focus on a few selective jurisdictions, like Shelby County, and not look all across the nation to see if the problem of racial bias in voting was prevalent there, too…

Justice Kennedy’s overall comments went quite far to suggest that he, too, believes that the law, if not modified to capture more states in more equal enforcement, probably could not withstand constitutional scrutiny. But occasionally, as with his apparent interest in the role of Shelby County as perhaps the wrong challenger, the always-potential “swing” Justice made other remarks that suggested he might not be prepared — as he almost certainly was not in 2009 — to go all the way to invalidate the law’s Section 5, the statute’s core.

He seemed to want to be assured that the Voting Rights Act might still be enforceable, if Section 5 were to be nullified. He commented that the other enforcement provision — Section 2, which applies nationwide, but does not put the burden of proof on covered states as Section 5 does — was not an adequate substitute. At the same time, however, he wondered whether the potential potency of enforcement might in more recent years be not much different between Sections 2 and 5. These, too, were some hints of ambivalence.

There are a couple possibilities here. Perhaps Kennedy would join with the four liberals on the court in finding a procedural way out of this, maybe on standing grounds. Another possibility is congressional action to modify the Voting Rights Act to make Section 5 applicable nationwide, which would not be a bad idea at all. We’re now seeing lots of voter suppression tactics that disproportionately affect minorities in states that aren’t covered by Section 5; requiring automatic DOJ or federal judicial review of all such laws would be a big roadblock to help prevent such measures. The problem, of course, is getting it through the House. The Senate voted 98-0 to reauthorize Section 5 a few years ago, so it would probably make it through the Senate.

Comments

  1. says

    Let’s consider the possibility that the VRA gets struck down. What then? Will there be anything Congress could do — assuming they had the political will — to prevent states from once again making voting the sole domain of white males?

  2. says

    “The problem, of course, is getting it through the House.”

    You just hate State’s Rights! And Small Government! And Liberty!(*1)
     

    “The Senate voted 98-0 to reauthorize Section 5 a few years ago, so it would probably make it through the Senate.”

    Sure, but you’re forgetting Obama.(*2)
     
    *1. YMMV.
    *2. The sentence ends there. Because Obama.

  3. Michael Heath says

    I have zero confidence that a VRA that offered its protections to other states would make it through the current Senate. The Republicans are out of the closet on their desire to suppress the non-white vote. They also care not a whit about the factual premises needed to provide context to any such debate; they’re instead perfectly happy and energetic distorting reality and coming up with indefensible arguments.

  4. parasiteboy says

    Gregory in Seattle@1:

    It’s only section 5 of the VRA that is being challenged.

    But the attorney for Shelby County seems to be disingenuous

    Rein commented in reply that the county was challenging the law as it was written, not as it would apply to any particular jurisdiction, and that Shelby County was covered only because the entire state of Alabama was.

    But Shelby county can “Bail Out” if they show non-discriminatory action for 10 years prior to filing and while the action is pending http://en.wikipedia.org/wiki/Voting_Rights_Act. This may be an area where there standing may be in question.

    Ed says:

    congressional action to modify the Voting Rights Act to make Section 5 applicable nationwide

    This is apparently what Chief Justice Roberts said in the 2009 ruling which avoided striking down section 5 by allowing any political subdivision to apply for a “Bail Out”. http://theweek.com/article/index/240778/when-john-roberts-talks-congress-should-listen

    Ed says:

    We’re now seeing lots of voter suppression tactics that disproportionately affect minorities in states that aren’t covered by Section 5; requiring automatic DOJ or federal judicial review of all such laws would be a big roadblock to help prevent such measures. The problem, of course, is getting it through the House.

    Very true on both points

    My apologies on the linking. Can anyone tell me how to do it better? Thanks in advance

  5. DaveL says

    I think Scalia’s apparent implication that people of color are the ones who benefit from a system of racial entitlement in America is going to go down in history alongside his remarks in Salazar v. Buono.

  6. says

    You’d think that the republicans would pay a political price if they blocked a new version of the VRA. But, if the current VRA is overturned, they can get away with suppressing the minority vote enough to get away with voting to suppress the minority vote.

  7. D. C. Sessions says

    The Senate voted 98-0 to reauthorize Section 5 a few years ago, so it would probably make it through the Senate.

    It might get 98 votes in favor and none opposed, but I wouldn’t give a snowball’s chance of it getting 60 votes for cloture. And lest anyone doubt that, please refer to recent cases that narrowly succeeded on cloture votes, only to win overwhelming votes for approval.

  8. eric says

    This seems such a strange argument to me. Either its constitutional to use historical data to target specific people/places/things for regulation, or its not. But it can’t be unconstitutional now just because the judges think the legislators doing the analysis have come up with the wrong result. That would clearly be a problem of “bad but constitutional decision.”
    And I find it really incredible to think that they would dismiss ‘targeted legislation based on historical data’ as unconstitutional as a class, because I imagine that general idea sits behind a crapton of laws. Why is alcohol still legal but cocaine no longer is? Why do motorcycle users have to wear helmets, but car drivers don’t? And so on. Its all supported by historical reasoning about distinctions between things. Or think about political pork: if historically racist Alabama can’t be singled out in law for this, can historically poor Alabama be singled out for some extra appropriation? Because appropriations are laws, too. They are passed by Congress and so on.

  9. says

    @8: I’d think ti can be unconstitutional if it’s not based on equitable requirments, and using 50-year-old data instead of re-evaluating it periodically may fail that.

  10. abb3w says

    @4, parasite boy:

    My apologies on the linking. Can anyone tell me how to do it better? Thanks in advance

    As indicated below the comment box, some limited markup is allowed via standard HTML tags, though links don’t display well in preview. Links are of the form <a href=”http://www.w3schools.com/html/html_links.asp”>(text you want to link)</a>, which looks like (text you want to link) when posted.

    URLs that are just posted are linked nondescriptly by the blog software.

    In general, html markup tags are surrounded by angle brackets, with /tag marking the end of whatever attribute begun by a tag. Thus, use a b tag to begin bold text, with a /b tag to end it.

  11. says

    parasiteboy “My apologies on the linking. Can anyone tell me how to do it better? Thanks in advance.”
    [a href=”link”]name for link[/a] (but with the left and right square brackets replaced with left and right triangle, , ones)
    So, [a href=”http://en.wikipedia.org/wiki/Voting_Rights_Act”]Voting Rights Acts[/a] becomes Voting Rights Acts

  12. busterggi says

    Has anyone yet reminded Scalia that at one time some states didn’t allow Catholics to vote or run for office?

  13. drr1 says

    It’s an odd federalism argument which suggests that the law is constitutionally invalid because it doesn’t apply to enough states. Of course, it’s also an odd argument which claims the political process has failed because ever-increasing legislative majorities have approved renewing a law. We’re through the looking glass, I’m afraid, so “racial entitlement” means exactly what Justice Scalia wants it to mean, nothing more and nothing less.

  14. baal says

    I’m still having trouble reconciling the last election and the argument that the major vehicle for fixing election problems (oddly always mingled with racial issues, gee) needs to go. Throw Scalia’s trolling into the mix and I wonder how I’m supposed to have any respect left for the SCOTUS. All of this is signs of a broken system (or some folks working hard to break the democracy).

Leave a Reply