One way to think about the quest for racial equality in voting in America is to liken it to a long and arduous car trip. A trip delayed for almost 100 years, because although the 15th Amendment guaranteed the right to vote regardless of "race, color, or previous condition of Servitude" in 1870, Southern states disenfranchised black voters for decades through poll taxes, literacy tests, and intimidation. It was only when Congress enacted the Voting Rights Act of 1965 that the road trip could finally begin.
As is often the case with long car trips, almost immediately after the Voting Rights Act was passed, a chorus of wee voices from the back seat began to chorus, "Are we there yet? Are we there yet? Are we there yet?" Those states singled out for extra government regulation wanted to know whether racism had yet been thwarted and they could have their autonomy back. Thus the Supreme Court has, since the enactment of Section 5 (which specifically targets election practices in mostly Southern states), heard four challenges to it. And each time the court has agreed that we haven't yet reached a place where Section 5 is unnecessary. But it's always been hopeful that day will come.
Now, different justices have different approaches to determining whether we have yet achieved the end of racial inequality in America. Justice Sandra Day O'Connor, for instance, hypothesized back in 2003 that we would only need affirmative-action programs for 25 more years—the constitutional equivalent of tossing a bag of gummy bears into the back seat. Chief Justice John Roberts, on the other hand, was already waving goodbye to the Voting Rights Act in the rearview mirror back in 1982, when, as a young lawyer in the Reagan Justice Department, he worked heroically if unsuccessfully to limit its reach. Today, when Roberts says of the Voting Rights Act, "it begins to look like this is going to go on forever," you have the sense that he's already at the rest stop, tossing back a Big Gulp.
The question of whether Section 5 is still necessary is very much on the justices' minds today as they reflect on whether to strike the thing down in its entirety. What most of them forget is that they are not meant to be driving the car; they are supposed to be judging.
Section 5 was originally set to expire in 1970 but has been reauthorized by Congress several times, most recently in 2006. The provision requires state officials to get permission or "preclearance" from the Justice Department or a federal court before making new local voting rules, but only for so-called "covered" jurisdictions—meaning all or parts of 16 states, mostly Southern states that were misbehaving back in the 1960s and '70s. Today's challenge, in Northwest Austin Municipal Utility District No. 1 v. Holder, comes from a Texas municipal utility district that didn't even exist in the 1960s and '70s, and has no history of discriminatory conduct to boot. The district lost in federal district court both on its claim that it should be allowed to "bail out" of the Section 5 preclearance scheme and on its claim that Section 5 is unconstitutional.
It's too bad you cannot watch oral argument from this morning live on C-SPAN (you can listen here), because when the court opts to act like a Super-Congress—albeit a smarter, better looking Super-Congress with less hair—we really should be allowed to watch.
The issue that consumes the court's conservative justices today is how only three years ago, Congress could have gathered 16,000 pages of testimony, at 21 different hearings over 10 months, and then reauthorized Section 5? No, they are not commending Congress for its diligent record-building and strict adherence to prior Supreme Court instructions. They are asking, Why defer to a Congress that is so damn wrong? These justices—and there appear to be five of them—are ready for a do-over with themselves acting as legislators.
Gregory Coleman represents the municipal district, and he argues that the preclearance system was an "extraordinary remedy" for "extraordinary emergency circumstances" that no longer exist. "We are in a different day," he says.
Justice David Souter disputes that the day is all that different, laying out the recent empirical evidence of voting disparities and government misconduct. Today looks a lot more like 1965 than you might believe. Justice Stephen Breyer adds yet more not-sunshine-and-roses data to the pile. Coleman responds that the racial disparity situation is actually far worse in places like Massachusetts, which was not singled out for special treatment under Section 5. This disparity gets Justice Anthony Kennedy worked up about unequal treatment of similarly situated states, and as Rick Hasen pointed out in Slate earlier in the week, the name of the game today will be getting Kennedy worked up.
Souter repeats his claim that Congress had heaps of evidence of an ongoing disparity in "racial attitudes," to which Coleman replies that even if that's so, it "does not justify a presumption that State and local officials in these areas are so racist that they cannot be relied on to pass and enforce fair voting laws."
Deputy Solicitor General Neal Katyal stands up to defend Section 5, and he describes Congress' reauthorization of the Voting Rights Act in 2006 as "the paradigmatic attempt of what to do in Congress." But Chief Justice John Roberts, Justice Antonin Scalia, and Justice Samuel Alito rapidly come flying at Katyal's head about how they personally could have done it better: "Why didn't Congress extend Section 5 to the entire country?" asks Alito. He points out that "the difference between Latino registration and white registration in Texas was 18.6 percent," which is "substantially lower than the rate in California, which is not covered (37 percent); Colorado (28 percent); New Mexico (24 percent); or the nationwide average (30 percent)." So why single out Texas?
When Katyal replies that Texas is treated differently because of its history, Alito wonders, "At what point does that history stop justifying action with respect to some jurisdictions but not with respect to others?" Roberts adds more bluntly, "Congress can impose this disparate treatment forever because of the history in the South?"
Kennedy starts to fret about the burden all this enforcement puts on taxpayers. And don't even get him started on the burden it puts on the covered states: "So Congress has made a finding 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. And the governments in one are to be trusted less than the governments [in] the other?"
For anyone who wondered whether Kennedy really was really willing to be The Guy Who Struck Down This Landmark Piece of Civil Rights Legislation, it abruptly becomes clear that as long as he can say he's merely defending the "sovereign dignity" of Alabama, he might just be OK with it. He pretty much eulogizes Section 5 when he muses that "no one questions the validity, the urgency, the essentiality of the Voting Rights Act. The question is whether or not it should be continued with this differentiation between the States."
Some classic Scalia moments follow quickly. In the first, he insists that the judgment of Congress is not to be trusted because when it came to reauthorizing the Voting Rights Act, "they get elected under this system. Why should they take it away?" Oh. My. God. You mean legislators are self-interested!?! That must mean the court is free to substitute its judgment for that of Congress.
Debo Adegbile is in the case representing the NAACP Legal Defense Fund. When he reminds the court that "Congress is permitted to use so much of its power as is necessary" to remedy racial discrimination, the Chief Justice clobbers him with: "Is it your position that today Southerners are more likely to discriminate than Northerners?" When Adegbile replies that the covered states tend to be repeat offenders in this area, Roberts comes back with, "So your answer is yes?"
Scalia asks Adegbile what the vote was when Congress reauthorized Section 5 in 2006.
Answer: 390-33 in the House, 98-0 in the Senate. Scalia retorts that "the Israeli Supreme Court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there." (And before you liberals start crowing that Scalia is citing foreign law, let it be noted that he is citing religious law, which is totally cool and different than foreign law.) Today Scalia seems to have fashioned a new constitutional principle: The courts should always defer to Congress unless Congress is unanimous, in which case Congress is a sack of self-interested liars. Fascinating.
Scalia asks how Virginia can be such a racist place if it was the "first State in the Union to elect a black governor" and "has a black chief justice of the Supreme Court." This is a proxy for the question everyone was hoping someone else would ask—i.e., how can there be racism in America if Obama is president? Adegbile replies that the "occasion of a single person sitting in a seat doesn't change the experience on the ground for everyday citizens."
In his rebuttal, Coleman makes the argument for killing Section 5 that Kennedy evidently most wants to hear: In reauthorizing Section 5, "Congress didn't know, because it didn't ask, whether discrimination is worse in Tennessee or Arkansas than in Virginia and other States." Congress has used old data to stigmatize and undermine the sovereign dignity of some states and not others. And Kennedy is all about the sovereign dignity. The real question for the court today is whether there are indeed five votes for saying that for purposes of Section 5, America is so right that Congress must be wrong. It looks like there may be. And that's a long, long journey for the humble, minimalist Roberts Court.