[A] departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.Well, Congress didn't act, and so Wednesday morning, the Supreme Court heard arguments in a new case, Shelby County, Alabama v. Holder, which now may force the issue.
... The evil that §5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions. For example, the racial gap in voter registration and turnout is lower in the States originally covered by §5 than it is nationwide. Congress heard warnings from supporters of extending §5 that the evidence in the record did not address "systematic differences between the covered and the non-covered areas of the United States[,] ... and, in fact, the evidence that is in the record suggests that there is more similarity than difference."
And as you may have seen from the early tweets and articles, it again doesn't look good for the defenders of the VRA. The chief justice, who four years ago held together the Court (save Thomas) to preserve the Act, was sharply skeptical, and Justice Kennedy was ... Justice Kennedy. Below the fold, some key excerpts from the transcript which may reveal where the key justices are on this issue.
First off, let's be clear: I am not worried about whether Justices Breyer, Ginsburg, Kagan or Sotomayor will uphold the VRA's constitutionality. There's no need to focus on them here. But they need a fifth vote.
Will it come from the on-the-one-hand-but-then-again-on-the-other jurisprudence of Justice Kennedy, who is not as swing-y on racial issues as he is on others? Well, maybe, based on his skepticism as to whether plaintff Shelby County, Alabama, would ever not be covered by Congress:
JUSTICE KENNEDY: I suppose the thrust of the questions so far has been if you would be covered under any formula that most likely would be drawn, why are you injured under this one?On the other hand, maybe the Act needs updating:
MR. REIN: Well, we don't agree that we would be covered under any formula.
JUSTICE KENNEDY: But that's -- that's the hypothesis. If you could be covered under most suggested formulas for this kind of statute, why are you injured by this one? I think that's the thrust of the question.
JUSTICE KENNEDY: This reverse engineering that you seem so proud of, it seems to me that that obscures the -- the real purpose of -- of the statute. And if Congress is going to single out separate States by name, it should do it by name. If not, it should use criteria that are relevant to the existing -- and Congress just didn't have the time or the energy to do this; it just reenacted it.And further:
GENERAL VERRILLI: I think the -- the formula was -- was rational and effective in 1965. The Court upheld it then, it upheld it three more times after that.
JUSTICE KENNEDY: Well, the Marshall Plan was very good, too, the Morale Act, the Northwest Ordinance, but times change.
JUSTICE KENNEDY: But if -- if Alabama wants to have monuments to the heros of the Civil Rights Movement, if it wants to acknowledge the wrongs of its past, is it better off doing that if it's an own independent sovereign or if it's under the trusteeship of the United States Government?The chief justice, possibly our best bet to be the fifth vote, is skeptical about whether the current VRA formula reflects the states which are problematic:
CHIEF JUSTICE ROBERTS: Just to get the -do you know which State has the worst ratio of white voter turnout to African American voter turnout?And later on, in questioning the solicitor general during his defense of the VRA:
GENERAL VERRILLI: I do not.
CHIEF JUSTICE ROBERTS: Massachusetts. Do you know what has the best, where African American turnout actually exceeds white turnout? Mississippi.
GENERAL VERRILLI: Yes, Mr. Chief Justice. But Congress recognized that expressly in the findings when it reauthorized the act in 2006. It said that the first generation problems had been largely dealt with, but there persisted significant -
CHIEF JUSTICE ROBERTS: Which State has the greatest disparity in registration between white and African American?
GENERAL VERRILLI: I do not know that.
CHIEF JUSTICE ROBERTS: Massachusetts. Third is Mississippi, where again the African American registration rate is higher than the white registration rate.
CHIEF JUSTICE ROBERTS: General, is it -- is it the government's submission that the citizens in the South are more racist than citizens in the North?Ditto, Justice Alito:
GENERAL VERRILLI: It is not, and I do not know the answer to that, Your Honor, but I do think it was reasonable for Congress --
CHIEF JUSTICE ROBERTS: Well, once you said it is not, and you don't know the answer to it.
GENERAL VERRILLI: I -- it's not our submission. As an objective matter, I don't know the answer to that question. But what I do know is that Congress had before it evidence that there was a continuing need based on Section 5 objections, based on the purpose-based character of those objections, based on the disparate Section 2 rate, based on the persistence of polarized voting, and based on a gigantic wealth of jurisdiction-specific and anecdotal evidence, that there was a continuing need.
CHIEF JUSTICE ROBERTS: A need to do what?
GENERAL VERRILLI: To maintain the deterrent and constraining effect of the Section 5 preclearance process in the covered jurisdictions, and that -
CHIEF JUSTICE ROBERTS: And not -- and not impose it on everyone else?
JUSTICE ALITO: There is no question that the Voting Rights Act has done enormous good. It's one of the most successful statutes that Congress passed in the twentieth century and one could probably go farther than that. But when Congress decided to reauthorize it in 2006, why wasn't it incumbent on Congress under the congruence and proportionality standard to make a new determination of coverage? Maybe the whole country should be covered. Or maybe certain parts of the country should be covered based on a formula that is grounded in up-to-date statistics.How was Justice Scalia? Sarcastic, as usual:
But why -- why wasn't that required by the congruence and proportionality standards? Suppose that Congress in 1965 had based the coverage formula on voting statistics from 1919, 46 years earlier. Do you think Katzenbach would have come out the same way?
JUSTICE SCALIA: Indeed, Congress must have found that the situation was even clearer and the violations even more evident than originally, because originally, the vote in the Senate, for example, was something like 79 to 18, and in the 2006 extension, it was 98 to nothing. It must have been even clearer in 2006 that these States were violating the Constitution. Do you think that's true?A notion he expanded on at great length later when
MR. REIN: No. I think the Court has to -
JUSTICE KAGAN: Well, that sounds like a good argument to me, Justice Scalia. It was clear to 98 Senators, including every Senator from a covered State, who decided that there was a continuing need for this piece of legislation.
JUSTICE SCALIA: Or decided that perhaps they'd better not vote against it, that there's nothing, that there's no -- none of their interests in voting against it.
JUSTICE SCALIA: ...This Court doesn't like to get involved in -- in racial questions such as this one. It's something that can be left -- left to Congress.As for Justice Thomas:
The problem here, however, is suggested by the comment I made earlier, that the initial enactment of this legislation in a -- in a time when the need for it was so much more abundantly clear was -- in the Senate, there -- it was double-digits against it. And that was only a 5-year term.
Then, it is reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it.
And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don't think that's attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.
I don't think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless -- unless a court can say it does not comport with the Constitution. You have to show, when you are treating different States differently, that there's a good reason for it.
That's the -- that's the concern that those of us who -- who have some questions about this statute have. It's -- it's a concern that this is not the kind of a question you can leave to Congress. There are certain districts in the House that are black districts by law just about now. And even the Virginia Senators, they have no interest in voting against this. The State government is not their government, and they are going to lose -- they are going to lose votes if they do not reenact the Voting Rights Act.
Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?
""Justice Thomas did not speak during oral argument, but made clear in his 2009 dissent in NAMUDNO that he believes Section 5 to be unconstitutional.