During vigorous arguments Wednesday over the scope of federal power to screen election law in states with a history of discrimination, the Supreme Court justice who could cast the deciding vote make clear his dueling concerns.
Justice Anthony Kennedy, who in recent years has broken the tie in race cases, said Wednesday he believes the 1965 Voting Rights Act has prevented discrimination, but that it may now be wrongly punishing some states over others.
"No one questions the validity, the urgency, the essentiality of the Voting Rights Act," Kennedy said of the law that ended poll taxes, literacy tests and other devices that kept some minorities from the polls for most of the 20th century. "The question is whether or not it should be continued with this differentiation between the states."
The disputed provision at the core of the act gives the Justice Department power to review proposed election-law changes in nine states, mostly in the South, and several counties and municipalities where race discrimination has been most flagrant over the decades. The act has been repeatedly renewed by Congress and upheld by the Supreme Court over the years. Yet the current court has shown itself more reluctant to endorse laws compensating for past discrimination.
Kennedy focused on the federal intrusion on certain covered states and not others and asked if Congress' message was "that the sovereignty of Georgia is less than the sovereign dignity of Ohio, the sovereignty of Alabama is less than the sovereign dignity of Michigan?" (Ohio and Michigan do not fall under the law known as Section 5.).
Kennedy also raised the cost of the act — financial and otherwise — to the targeted states and locales in submitting proposals to the Justice Department and often having to develop new plans, for example, in the drawing of voting district lines or in the time or place of local elections.
While Kennedy generally opposes government policies that continue to take race into account to remedy historic bias, he has tried to chart a middle course. His concerns with Congress' renewal of the law in 2006 seemed to tip toward its rejection, yet his vote is often difficult to predict.
In the backdrop of the closely watched case is the election of Barack Obama and the question of whether America still needs an expansive law protecting against discrimination in voting now that an African American has won the presidency.
"After 16,000 pages of testimony, 21 different hearings over 10 months, Congress looked at the evidence and determined that their work was not done," Deputy U.S. Solicitor General Neal Katyal told the justices as he defended the 25-year renewal of the act.
Lawyer Gregory Coleman, representing a Texas utility district that says Congress exceeded its powers, said the "unremitting and ingenious defiance" of law targeted in Section 5 four decades ago no longer exists.
"We are in a different day," insisted Coleman, who mentioned Obama's election in legal filings but not in the courtroom Wednesday.
Justice David Souter, who was among the most active questioners in defense of the Voting Rights Act, told Coleman, "Your argument is largely based on the assumption that things have significantly changed. … But to say that they have radically changed to the point that this becomes an unconstitutional … exercise within Congress' judgment seems to me … to deny the empirical reality."