High court questions '65 Voting Rights Act
Kennedy is skeptical about state formula
WASHINGTON - A central provision of the Voting Rights Act of 1965, designed to protect minorities in states with a history of discrimination, is at substantial risk of being struck down as unconstitutional, judging from the questioning yesterday at the Supreme Court.
Justice Anthony M. Kennedy, whose vote is likely to be crucial, was a vigorous participant in the argument, asking 17 questions that were mostly hostile to the approach Congress had taken to renewing the act in 2006.
"Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio," Kennedy said. "The sovereignty of Alabama is less than the sovereign dignity of Michigan. And the governments in one are to be trusted less than the governments in the other."
Georgia and Alabama, along with seven other states and many local governments, mostly in the South, are subject to Section 5 of the act, which requires them to seek federal permission before making changes in voting procedures. Ohio is not covered, and only two townships in Michigan are.
In reauthorizing Section 5 for 25 years in 2006, Congress did nothing to change the criteria for inclusion under the provision, relying instead on a formula based on historic practices and voting data from elections held decades ago. That seemed to rankle Kennedy. About two-thirds of his questions concerned the coverage formula.
"No one questions the validity, the urgency, the essentiality of the Voting Rights Act," he said. "The question is whether or not it should be continued with this differentiation between the states. And that is for Congress to show."
The court has often divided 5 to 4 in highly charged cases involving voting and race, with Kennedy casting the swing vote.
Should the court strike down the coverage formula in Section 5, Congress would be free to take a fresh look at what jurisdictions should be covered. But making distinctions among the states based on new criteria might not be politically feasible.
"It is one thing to retain coverage of jurisdictions that have lived with the constraints of Section 5 for some time," Nathaniel Persily, a law professor at Columbia, wrote in The Yale Law Journal in 2007. "It is quite another to heap a new and costly administrative scheme onto jurisdictions unaccustomed to needing federal permission for their voting laws."
At the argument yesterday, Kennedy said there was evidence that "it costs the states and the municipalities a billion dollars over 10 years to comply."
Congress collected thousands of pages of information concerning continued problems in the covered jurisdictions, some of which Justice Stephen G. Breyer summarized. Virginia and Texas, for instance, still have significant disparities in voting registration rates, Breyer said. The number of minority officeholders in Mississippi, Louisiana, and South Carolina, he added, "is still not great."
But Congress did much less work in comparing practices in jurisdictions covered by Section 5 to those in jurisdictions that are not. Had Congress taken account of more recent data, Justice Samuel A. Alito Jr. suggested, it might have drawn the coverage lines differently.
"The difference between Latino registration and white registration in Texas was 18.6 percent, which is not good," Alito said, "but it's substantially lower than the rate in California, which is not covered - 37 percent."
The case, Northwest Austin Municipal Utility District No.1 v. Holder, No.08-322, was brought by a small Texas water district.
Gregory S. Coleman, a lawyer for the district, began his argument with a relatively modest request - that the district be allowed to "bail out" of Section 5 coverage.
But the possibility of a ruling on that or another narrow ground did not seem to attract much interest from the justices.
Justice Ruth Bader Ginsburg asked Coleman to describe an acceptable coverage formula. Coleman sidestepped the question but said that only Hawaii would be covered were recent data plugged into the old formula.
While questioning at the Supreme Court is an imperfect indicator of how the justices will vote, Kennedy gave every indication yesterday that he believed that the justifications offered by Congress for retaining Section 5 had fallen short.
"This is a great disparity in treatment, and the government of the United States is saying that our states must be treated differently," Kennedy said to Neal K. Katyal, a deputy US solicitor general. "And you have a very substantial burden if you're going to make that case."
Katyal responded with an appeal to the history of the Voting Rights Act. The law, Katyal said, was "one of the most transformative acts in American history." It is, he said, still justified, "because with this act what Congress did was essentially redeem itself in the eyes of the world."