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.