Today the Supreme Court heard oral arguments in Shelby County v. Holder, the case I wrote about yesterday that addresses the constitutionality of Section 5 of the Voting Rights Act. From what I heard this morning, I predict a 5–4 decision finding Section 5 unconstitutional, with Justice Kennedy and Justice Breyer being those most likely to be lobbied behind the scenes to join a different voting bloc.
The first questions faced by Shelby County, Ala. — the petitioners challenging Section 5 — was whether this case should even be brought as a facial challenge. Justice Sotomayor out of the gate asserted that, “while some portions of the South have changed” since 1965, “your county pretty much hasn’t.” Justice Kagan and Ginsburg chimed in with statistics painting Shelby County as racist. But the fundamental legal question will be whether these statistics even matter.
In a facial challenge, the question at hand is whether the law is constitutional per se, rather than constitutional in a particular instance as it’s applied (here, regarding Shelby County).
In the solicitor general’s defense of the law, however, he seemed to concede that a facial challenge was proper here, and the chief justice as well as Justices Scalia and Alito came to Shelby County’s defense.
The Court then moved on to the question of whether Section 5′s coverage of certain jurisdictions was rational. The law currently chooses covered states, including Alabama, based on their voter registration and turnout in the 1964, 1968, and 1972 elections. Justice Breyer kicked off this line of questioning with one of his famous analogies: Isn’t this like a plant disease that may have been evident in certain areas in 1965 and now has been ameliorated sufficiently to make it hard to find? Wouldn’t it be logical to just keep treating the affected areas, since we don’t think it is fully cured and think that the 1965 data suggests that the contagion is still present? And if our treatment seems to have worked from 1965 to now, why not continue it?
I was disappointed that more time wasn’t spent challenging the logic of this analogy. Is race discrimination really like a disease that persists in a state or jurisdiction, especially when populations have moved and changed so much in the past half-century, and the U.S.’s culture as a whole has shifted so much, too? Furthermore, as Shelby County pointed out, Congress claimed it was addressing different “second generation” problems in the most recent reauthorization of the Voting Rights Act in 2006, separate from those “first generation” problems evident in 1965. Why, if this was the case, would we maintain the same treatment for new, different problems?
This analogy was also undermined by discussions later in the argument between the solicitor general and the chief justice and Justice Alito. The justices asked why, if Section 5 was so effective, it wouldn’t make sense to expand it to the whole country. That would eliminate the constitutional problem of discrimination among states. There are non-covered states that have more indicators of racially discriminatory voting laws than certain covered states. Shouldn’t they be included in preclearance? The SG stated that there wasn’t sufficient evidence to support a nationalized preclearance regime, but never got a chance to fully address this challenge (of course, given the level of interruption by questioners in these arguments, this is hardly unusual).
Another theme that emerged in the questioning is whether the “reverse engineering” of the Section 5 coverage formula was a problem. Justice Kennedy led this line of questioning, which examined why it was permissible for the law to use a formula that was acknowledged to be based on a loose proxy for voter discrimination and not discrimination itself. The earliest Supreme Court decision upholding Section 5 acknowledged that voter registration and turnout numbers weren’t in and of themselves the problem being addressed, but ruled that the formula was reasonable because it ended up covering the states that everyone knew were the target of the legislation. Justice Kennedy asked why Congress shouldn’t be required to list individual states or explain their actual concerns rather than be allowed to rely on an arbitrary formula that happens to produce the desired result. Shelby County seemed reluctant to agree fully with him, probably because they didn’t want to be seen asking to overturn the earlier case, but the chief justice seemed sympathetic to Kennedy’s point.
Justice Scalia initiated questioning about how to find an endpoint to this type of remedial legislation. In questioning that hearkens back to the issues in Fisher v. Texas, the affirmative-action case argued last fall, he asked whether we could continue preclearance in perpetuity simply because it probably adds some marginal level of protection against racist laws. He also made a statement that will be sure to dominate news coverage of the arguments (as it is dominating the rally going on outside the Court): He claimed that, given political realities, the Voting Rights Act will be reauthorized regardless of progress on the voting-rights front because of what he termed the “perpetuation of racial entitlement.” This triggered oohs and ahs from the attorneys around me in the Supreme Court lawyers’ lounge, many of whom were employees of the Voting Rights Division in the DOJ, those who are charged with enforcing Section 5.
However, Scalia’s attention-drawing comment is irrelevant to the legal and constitutional merits of the case, and instead applies to the politics of why Congress may have been refusing to heed the Court’s earlier calls to update Section 5. Unfortunately it distracts from the real question: not whether Congress has been limited by politics, but whether the Court will apply the same neutral standard to this law that it does to other 14th Amendment legislation, requiring that remedial legislation be congruent and proportional with the problem Congress is addressing.
Interestingly, Justice Breyer seemed very receptive to Justice Scalia’s fundamental point about the necessity of a way to determine when voting parity has been achieved. When questioning the defendant-interveners in the case, Justice Breyer clarified that he believed renewals of the law must eventually run out. Counsel for the interveners was able to express hope it would sometime “in the future,” but never gave a clear endpoint or metric for deciding when that would be. This exchange suggests to me that Breyer may write at least a less broad decision upholding Section 5, and even could decide the lack of a standard was too serious in this case to allow the inter-state distinctions to continue.