Justice Kennedy questions need for voting rule
WASHINGTON -- The Supreme Court justice who could cast the deciding vote on federal oversight of election law in states with a history of discrimination questioned the need for a core provision of the law during vigorous arguments Wednesday.
Justice Anthony Kennedy, who has broken the tie in race cases in recent years, said he believes the 1965 Voting Rights Act has prevented race discrimination but it may now wrongly penalize select states. "No one questions the validity, the urgency … of the Voting Rights Act," Kennedy said of the law that ended poll taxes, literacy tests and other devices that kept minorities from the polls for most of the 20th century. "The question is whether … it should be continued with this differentiation between the states."
The disputed provision gives the U.S. 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.
Though Kennedy generally opposes government policies that continue to take race into account to remedy historic bias, he has tried to chart a middle course on the ideologically divided court. His repeated concern that Congress' 2006 renewal of the law intruded on state authority seemed to tip him against the measure. Yet he also said the key section had helped block discriminatory practices, and his vote is often difficult to predict.
Looming in the backdrop is the election of President Obama and the question of whether America needs the broad provision requiring screening of election rules 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 of the 2006 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 voting rights targeted four decades ago in the provision — known as Section 5 — no longer exists.
"We are in a different day," insisted Coleman, who cited Obama's election in legal filings but did not mention it Wednesday.
Justice David Souter, among the justices defending the law, said Coleman's argument was "largely based on the assumption that things have significantly changed. … (That) seems … to deny the empirical reality."
Justice Ruth Bader Ginsburg suggested by her questions that she, too, believed the law was necessary to prevent "backsliding" on voting rights.
The conservative justices appeared to believe the provision had run its course. Chief Justice John Roberts declared to Katyal, "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 state bias against blacks and other minorities was documented "a long time ago." He said individuals who face discrimination could still bring a case under a separate provision of the law in federal court.
Yet Kennedy noted such individual cases can be "expensive" and "inefficient."
Also defending the 2006 Voting Rights Act 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 argued, referring to decisions such as moving polling locations or tightening deadlines for filing absentee ballots.
"Is it your position that today Southerners are more likely to discriminate than Northerners?" Roberts asked. Adegbile answered indirectly, saying there had been more violations of voting rights in the covered states.
The covered states are Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia. Parts of some Northern localities are covered, including in New York.