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."
Justice Ruth Bader Ginsburg suggested by her questions that she, too, believed the law was necessary to prevent "backsliding" in voting rights. Similar sentiment was expressed by the two other liberal justices, John Paul Stevens and Stephen Breyer.
The more conservative justices appeared to believe the law has run its course. Chief Justice John Roberts declared to Katyal at one point, "Congress can impose this disparate treatment forever because of the history in the South? When do they have to stop?"
Justice Antonin Scalia asserted that much of the evidence of government bias against blacks and other minorities was documented "a long time ago" and stressed that individual victims of voting discrimination could still bring cases.
Justice Samuel Alito questioned evidence that some states not covered by Section 5 might have lower rates of Latino voter registration, for example, than states that are covered.
Katyal emphasized that Congress, which overwhelmingly passed the renewal, looked at a wealth of evidence. President George W. Bush signed it into law.
Also defending the 2006 VRA renewal was Debo Adegbile, of the NAACP Legal Defense and Educational Fund, which had intervened in the case.
"The pernicious nature of voting discrimination is such that small changes in the rules of the game can affect many people," Adegbile said, referring to, for example, some localities' decisions to move polling locations or tighten deadlines for filing absentee ballots.
"Is it your position that today southerners are more likely to discriminate than northerners?" Roberts asked.
"The pattern has been more repetitious violations in the covered jurisdictions," Adegbile responded.
While Obama's election was not raised Wednesday, the election of blacks in southern states was mentioned. Scalia noted that the nation's first black governor, Douglas Wilder, was elected in Virginia. He served 1990-1994.
"There have been African Americans to rise to high office throughout our history," Adegbile said, "but that occasion of a single person sitting in a seat doesn't change the experience on the ground for everyday citizens."
A ruling in the case of Northwest Austin Municipal Utility District Number One v. Holder is likely by the end of June when the court usually recesses for the summer.