On Wednesday, the Supreme Court heard oral arguments in the Voting Rights Act case, Shelby County, Alabama vs. Holder. I have previously written about this case and its importance. To recount briefly, a county in Alabama has challenged Section 5 of the Voting Rights Act of 1965 and specifically its pre-clearance requirements and the formulas used to determine which states or political subdivisions should be covered by the Act.
In what can only be described as a spirited and lively constitutional debate, both sides on the Supreme Court appeared loaded for bear as the arguments began. As the petitioner, Shelby County goes first. Barely a minute into their argument, Justice Sotomayor interrupted to state that given the evidence proffered by the Justice Department, Shelby County was the "epitome" of the discriminatory practices the law was intended to root out. It became apparent from not only that statement but the line of questioning from both Sotomayor and Kagan that they (1) believed the law should stand as it is, (2) that great deference should be given Congress, and that (3) racial discrimination in voting practices still existed especially in the South.
Justice Ginsburg acknowledged the findings of the Northwest Austin decision from a few terms back that the South has changed, but with respect to the Voting Rights Act of 1965 and specifically its re-authorization for 25 years in 2006, she questioned whether the Court should question the congressional record. After all, as was explained later, Congress did not re-authorize the law in a vacuum. They did not declare that racial discrimination in voting laws was fully a thing of the past. The problem, however, as later questioning evolved, was the criteria used to make those determinations. Specifically, Congress used statistics from VRA actions by the Justice Department to substantiate the 2006 re-authorization. In the absence of those statistics which, incidentally, are not totally proof for perpetuation of the Act's provisions, the evidence is substantially weaker. As Sotomayor noted with respect to Shelby County specifically, that one county in Alabama had 240 VRA actions in a small time period. That, to her and apparently Kagan as well, was all the proof one needed to conclude that Shelby County, Alabama should remain under the yoke of VRA pre-clearance. The rebuttal to that line of thinking is that the 240 actions would not exist but for the VRA formula and Section 5 requirements. In other words, if Congress had adjusted their formula to determine covered jurisdictions when they had the chance in 2005-2006, perhaps a different conclusion could have been reached. In that case, the simple annexation of land involved here would be no issue and there would be no facial challenge to the law. That is the gist of Shelby County's argument: treat us as you would treat a county in a on-covered state.
Scalia and Alito offered hypothetical analogies where they noted the resulting laws would not be upheld. Alitos' analogy was of a $1,000 tax penalty against anyone whose last name started with the letter "A." The idea was that what if Congress determined that an inordinate number of people whose last name started with "A" were determined to be tax cheats. Would such a law survive if everyone whose last name started with the letter "A" had to prove to the IRS first that they were not a tax cheat? Of course, that law would be unconstitutional. Sotomayor, the law's biggest defender, shot back that such hypotheticals were not based in fact and there would be no record whereas there was a record in 1965 and with the subsequent re-authorizations of the law. But, the point was whether designing a formula to specifically target certain populations, although justifiable when originally passed, was necessary or legal now especially in light of the fact that the major evils the VRA sought to eradicate has apparently achieved its goals.
This then led to the Breyer analogy (actually a good one) of eradicating a plant disease. In this scenario, the remedy had largely eradicated the disease, but the disease still existed, although it transformed itself somewhat. Would it be wise to end the remedy devised to address the problem in the first place considering the fact that both sides acknowledge the efficacy of the law? This brought about the discussion of primary versus secondary voter discrimination laws and Shelby County's assertion that Section 2, which is a more surgically precise method and option available to the Justice Department, could be used to address particular allegations of discrimination. However, Sotomayor noted that Section 5 was originally suggested because states were quickly developing methods to disenfranchise black voters and that strictly relying on Section 2 remedies could not keep up with the ingenuity of these state laws.
It was at this point that Justice Kennedy jumped into the argument and started a line of questions that give a clue as to where he will eventually end up on the issue. First, he introduced the idea of "reverse engineering." This assumes that when the criteria were developed for inclusion in a covered jurisdiction, there was an intent in mind and that intent was to capture as many areas of the South as possible. He acknowledged that it may have been justified in 1965 or even 1972, but was it justified in 2006? Sotomayor and Kagan again defended the law's efficacy, but Kennedy was not deterred. He noted that the Marshall Plan, the Morrill Act and the Northwest Ordinance were all good and effective laws, but they were no longer in existence since the "evils or problems" they sought to remedy had been largely effective. Kennedy seemed to be homing into a very important area- that of federalism and allowing states greater leeway in election laws changes without resorting to the onerous requirements of Section 5. In other words, why not Section 2?
And then began the discussion about Senate votes. Initiated by Scalia, he was laying the groundwork for his future controversial arguments that would garner the most attention, especially from today's civil rights "leaders." He noted that when originally passed, the votes were less than unanimous, but that they eventually reached unanimity with a 98-0 vote for re-authorization in 2006. Since Ginsburg was the greatest defender of congressional deference in this area, the other "liberals" on the Court (except Breyer) agreed that this was proof that the congressional record supported the theory that Section 5 was necessary and should be re-authorized for 25 more years.
To defend the law, Solicitor General Donald Verrilli was barely into his argument before Chief Justice Roberts interrupted with a line of questioning that is the ultimate gist of this case. He asked him whether he knew some statistics regarding African-American voter registration and turnout facts. When Verrilli stated he did not, Roberts reminded him that Massachusetts ranked below Mississippi in these areas. Roberts noted that in 2005, there were 3,700 petitions before the Justice Department regarding alleged racially discriminatory election law changes and that only ONE was found to be substantiated. He then pointedly asked whether it is the Federal government's and the Justice Department's belief that the South was racist. Verrilli answered in the negative, but the answer appeared qualified.
Scalia and Kennedy continued on the line of whether the law should be continued perpetually because it appears to have served its purpose. Surprisingly, Breyer also seemed to question whether the law's time frame is justifiable and should it continue "in perpetuity." Verrilli noted that although the law has done wonders, there still exists examples of discrimination in voting laws and that Section 5 is the best method to address those issues. There ensued a discussion about primary versus secondary discrimination prompted by Breyer's earlier plant disease example. Congressional power under the 15th Amendment was designed to protect the right of newly freed slaves (blacks in general) to vote. No one, given the wording of the 15th Amendment, denies that Congress had the power in subsequent re-authorizations to include ethnicity and language differences in the law (which is why some areas of California, Arizona and even Alaska are covered). Ginsburg, ever the defender of congressional findings, noted that the 98-0 vote in 2006 indicated that Congress made the determination that discrimination in voting still existed and that Section 5 was the preferred remedy and deterrent.
That led Scalia to advance the "racial entitlement" theory which, by the way, is not his. Under this theory, once a law is passed to defend the rights of a racial minority, there is a tendency to continue that law or policy not because it is needed any more, but because it would be political suicide to vote against it. He noted that even the name of it sounds great. In other words, it is politics, not practicality or even a reason for the law in the first place, that dictates the 98-0 vote even among Senators whose states may be "harmed" by the law. Perhaps the wording was wrong or crass, but the fact remains that this tendency among politicians certainly exists. Take, for example, the recent passage of the Violence Against Women Act (VAWA). Several Senators voted against that law on constitutional principle, not because they advocate violence against women. Marco Rubio's vote against the law has already been singled out by women's rights groups where they warned that should he run for the presidency in 2016, they will make his vote against VAWA an issue. Scalia was getting at the fact that Senators from the South may have voted for the 2006 VRA re-authorization for political reasons lest they be branded "racists" by special interest groups in their states which happen to have large minority populations. Thus, the argument goes, this is the main motivational factor for the
98-0 vote in the Senate most recently. Admittedly, there were some audible gasps on the audio of the argument.
Nina Totenberg at NPR, certainly no conservative, has analyzed the argument and if questioning is any indication- usually not a good guide for divining votes on any decision- has determined that Section 5 will not stand by a vote of 5-4 along the traditional ideological lines of the Roberts Court. I would have to agree with her if we are basing this strictly on oral argument, although I would add the caveat "at least 5-4." It was the Northwest Austin decision, which Breyer had signed onto which gave Shelby County the legal opening to pursue this case in the first place. Although that case and that decision was not a facial challenge to Section 5 of the VRA, there were enough warnings in that decision that perhaps Congress was using antiquated material and rationales to justify such a sweeping statement that racial discrimination in voting laws is unique to the South. Thomas, who never participates with questioning in oral arguments, is on record as being against Section 5 while it is apparent from the questions of Alito and Scalia that they too are skeptical of the government's all-or-nothing solution. John Roberts, while a member of the Reagan Administration, drafted legal briefs against Section 5 enforcement. Although he may have changed views or his approach- he was a Justice Department lawyer then, a Supreme Court Justice now- it is obvious from recent civil rights cases before his Court (Ricci, the Seattle and Kentucky school desegregation cases, Northwest Austin) that he is adverse to Section 5 blanket enforcement and the formulas used to determine covered jurisdictions (thus the "Do you think the South is racist?" question). The key is Kennedy which is why I believe that although the decision may be at least 5-4, it will be a plurality decision because Kennedy will base his decision on federalism grounds and equal treatment of the states with respect to a race-based law. There is the possibility that Stephen Breyer may sign onto a majority decision if it acknowledges that Section 5 or something like Section 5 may be needed in some instances, perhaps the most egregious ones. But from his line of questioning at oral argument (and his inclusion in the majority in the Northwest Austin case) that he too has some doubts about Section 5 and the formulas Congress agreed upon in 2006. Forget about Sotomayor, Kagan and Ginsburg- they obviously believe the South should still suffer for the sins of the past.
As the case concluded, the lawyer for Shelby County basically summarized the case. Today, Congress has approved a sledgehammer to eradicate a problem that can best be eradicated by a fly swatter. It boils down to how pervasive one views racist motivations in election law changes. It is obvious that the Obama Administration sees a racial bogey man behind every such law whether it be redistricting (unless it creates a minority-majority district), voter ID laws, the changing of polling places, the types of ballots used, the times polls are open, absenteeism voting methods, etc. ad infinitum. No one denies that racial discrimination is a thing of the past, that it has been totally eradicated. But, even the government, as Roberts noted in his line of questioning of the Solicitor General, has to acknowledge that it is not intrinsic or unique to the South. Fortunately, the Voting Rights Act has a mechanism to address real cases of racial animus and effects in voting law changes nationwide- Section 2 which is a more surgically precise method of eradicating these laws than the "sledgehammer" of Section 5.