THE COURT IN ACTION: In this excerpt from the oral argument, Bert Rein, counsel for Shelby County, is questioned closely by Justices Sotomayor, Kagan, and Kennedy. He gets a friendlier question from Justice Alito.
Today’s argument drove home the extent to which four Republican-appointed members of the Court are driven by ideology to eliminate our nation’s most effective protection for minority voting rights. The big question remaining is whether the fifth Republican-appointed Justice, Anthony Kennedy, is now ready to join the crusade. In 2009, in NAMUDNO v. Holder, Justice Kennedy apparently was not prepared to add to his legacy the uncomfortable headline that he provided the decisive vote to strike down the preclearance requirement of the Voting Rights Act. Based on today’s argument, he remains the Act’s best hope.
The central contention of the case is that the Act’s formula for determining which jurisdictions must preclear their election changes with the Attorney General or a three-judge court is outdated, and whether Congress exceeded its power when it reauthorized it in 2006. A decision striking down the formula would render the preclearance requirement unenforceable.
The argument opened with Justice Sotomayor, the Act’s most vocal defender, asking Bert Rein, Shelby County’s counsel, why the Court should even entertain his case. The case was filed as a facial challenge to the formula for determining which jurisdictions would be subjected to preclearance. It does not involve a request for preclearance of an election change or a request that Shelby County be released from the preclearance requirement based on its record. Justice Sotomayor, joined by Justices Kagan and Ginsburg, questioned why Alabama (the entire state of Alabama, including Shelby County, is covered) should be allowed to challenge the Act’s coverage formula. They noted its continuing record of recent discrimination and opined that Alabama would be covered under any formula Congress adopted. It was, therefore, unclear how Shelby County was harmed by the coverage formula. To Rein’s response that the case did not involve the record of his client, but presented a facial challenge, Justice Sotomayor was quick to note that the Court disfavors facial challenges. Most importantly, Justice Kennedy joined in the questioning on this topic and seemed interested. Indeed, the fact that the case was filed as a facial challenge seeking a declaratory judgment on behalf of a jurisdiction with a recent history of discrimination in voting should have made it a poor candidate for a grant of Supreme Court review. It remains possible that Justice Kennedy will have second thoughts about using this weak vehicle to undermine the Voting Rights Act.
Much of today’s argument focused on what the Court should make of the massive 15,000 page record Congress compiled in 2006. Conservatives on the Court appear to think – quite mistakenly – that it is their task to evaluate and weigh the evidence from scratch. Rather, it is the role of Congress to undertake legislative fact-finding and to make judgments based on the evidence. Particularly when Congress is making predictive judgments about what is needed to overcome a history of racial discrimination, the Court should step back. When Congress addresses race or voting pursuant to its power under the post-civil war constitutional amendments, it acts at the peak of its power.
Bizarrely, Justice Scalia turned this relationship on its head, suggesting that the Act is suspect because members of Congress voted overwhelmingly for it in the belief that it would be politically detrimental for them to vote against it. Putting aside the difficulty of reconciling Justice Scalia’s eagerness to delve into the heads of legislators with his rigidly textualist approach to interpretation, he expressed an astonishingly disdainful view of the legislative process. Members of Congress regularly vote for or against measures because of the political consequences of their votes. We expect them to do that. This sounds suspiciously like an allegation that members of Congress represented the views of their constituents.
Two things made the arguments of conservative Justices today even less persuasive. First, since NAMUDNO, the covered jurisdictions have engaged in an orgy of vote suppression activity. In many instances, only Section 5 has prevented massive disenfranchisement of minority voters. Courts relied on Section 5 to block Photo ID laws passed by Texas and South Carolina from going into effect for the 2012 election.
The South Carolina experience powerfully demonstrated the continuing impact of Section 5. During the court challenge, South Carolina offered a reinterpretation of the law to allow voters without ID to file an affidavit and to vote, which led the court to block it for 2012, but say that it could go into effect in the future. This is precisely the kind of outcome that the preclearance requirement contemplates.
A court also relied on Section 5 to block Texas’s redistricting of its congressional, state senate, and state house seats, finding intentional discrimination. Another court blocked Florida’s cutbacks in early voting, including its elimination of Sunday voting, both of which were disproportionately used by minority voters. Importantly, Alabama and Mississippi have also passed photo ID laws that have yet to win Section 5 preclearance. In short, the covered jurisdictions have behaved badly since NAMUDNO. Republican leaders have acknowledged the Party’s deficit with minority voters. Too often, however, rather than try to win minority voters with policy, they have sought to purge them from the electorate. In the process, they have shown the country – and the Court, if it can see past its ideological blinders – that Congress’s judgment that Section 5 is still necessary is more than just rational or congruent and proportional – it is compelled.
The covered jurisdictions did all of this despite the deterrent effect of Section 5. The predictive judgment of Congress in 2006 that it was too soon to release the covered jurisdictions from federal supervision was clearly correct. And it’s exactly the kind of predictive judgment to which the Court owes considerable deference.
The second factor undermining the conservatives on the Court is the record of jurisdictions bailing out of Section 5 coverage. The bailout record is a complete response to arguments that the coverage formula is out of date.
The Act allows jurisdictions that have maintained a clean record for ten years to file suit seeking to bail out of coverage, which means they will be relieved of the preclearance requirement. In NAMUDNO, the Court interpreted the language of the act to allow even the smallest governmental units to sue to escape coverage. Since NAMUDNO, 128 governmental units have won bail out in 21 successful court actions. More are in the pipeline. No jurisdiction that has sued for bailout has lost. There could be no more perfect mechanism for fine-tuning the Act’s coverage.
During the argument, Solicitor General Verrilli relied on the bailout provision as a further basis for rejecting the facial challenge. He argued that jurisdictions that were not properly included in the preclearance requirement generally could bail out. If there were some jurisdictions that were improperly included but did not qualify for bail out, they could pursue more traditional as-applied challenges to coverage.
After today’s argument and after the extensive briefing of the case, the Court has before it compelling arguments in support of the Voting Rights Act. If the Court strikes down the preclearance requirement, its action will be the culmination of decades of court-packing by Republican presidents who consciously selected Justices who were hostile to civil rights remedies. In doing so, the Court will further the interests of a conservative base struggling desperately not to lose its power to an emerging diverse voting majority. To do so, it will have to turn its back on decades of law and express disdain for Congress. Surely, that is not the legacy Justice Kennedy envisions.
William Yeomans is a Fellow in Law and Government at American University’s Washington College of Law.