If you’re trying to cure an illness, and you get better, but not entirely—say you had a high fever, but now you have the sniffles and a sore throat—does it make sense to keep taking the same medicine? What if your doctor insists?
Justice Stephen Breyer offered the disease analogy Wednesday morning for racist efforts to block the power of black and Hispanic voters in the South during a sharply polarized argument—5 to 4, conservatives v. liberals—over whether Shelby County, Ala., has taken enough medicine from Section 5 of the Voting Rights Act. Congress first enacted the Voting Rights Act in 1965 to deal with massive and violent suppression of black voters in the South. The problem was so entrenched that when federal courts would strike down a discriminatory measure like a poll tax, Southern states and counties would quickly dance around the ruling, enacting new barriers such as a literacy test. So Congress armed the Voting Rights Act in two ways. The first, Section 2, bans any voting practice that discriminates on the basis of race or ethnicity. It applies uniformly, throughout the country, and it has no expiration date. To enforce it, the government, or a group or person affected by the law, has to sue—and has the burden of proof. The second part of the Voting Rights Act, Section 5, relied on data showing a pattern of discrimination at the time to create a category of “covered jurisdictions.” Congress said that for 25 years the Department of Justice had to “pre-clear” any changes to voting rules in those places, or else the state or county had to go to court for approval before the changes could go into effect. The list of covered jurisdictions included most of the South, along with a smattering of counties and cities in other states.
The list of jurisdictions where Section 5 applied remained the same when Congress last reauthorized the Voting Rights Act in 2006. But some of those states say they no longer belong—they’re cured, and that means it’s time for the whole Section 5 formula to go. That’s the question the court was grappling with on Wednesday: In 2006, given the history and the current evidence, did Congress have enough reason to think that the South still suffered from Racist Voting Disease? What’s the test—does every single state, city, and county covered by Section 5 have to be worse than every single state, city, and county in the rest of the country? And what kinds of symptoms qualify for Section 5 medicine—low turnout or registration rates, proof of the old forms of blatant discrimination, or more subtle measures, like moving a polling place out of a minority neighborhood?
Shelby County’s lawyer, Bert W. Rein, says Section 5 is over and done. Quoting the court’s last ruling on the matter from 2009, he opened by saying that the record before Congress the last time around “made it unmistakable that the South had changed.” Justice Sonia Sotomayor was the first to pounce. She said she accepted that some portions of the South had changed, “but your county hasn’t.” She cited 240 discriminatory voting measures recently blocked by Section 5 and Section 2 challenges. “You may be the wrong party bringing this suit,” Sotomayor continued, calling Shelby County the “epitome” of the reason for keeping Section 5 in place.
Justice Elena Kagan jumped in with more stats. One-quarter of Alabama’s voters are black, she pointed out, but no black official holds statewide office. The state is No. 1 on the list for Section 2 challenges and No. 2 for Section 5 enforcement actions, she said. In other words, Congress had plenty of evidence last time around of its continuing trouble fully enfranchising minority voters. “You’re objecting to the formula, but under any formula Congress could devise, it would capture Alabama,” she said.
To Rein, that’s irrelevant because Congress didn’t put Shelby County on the list because of its specific history. And he seemed to have five justices on his side. For Breyer, Kagan, Sotomayor, and Ginsburg—the court’s liberal wing—it was enough that Congress gathered thousands of pages of evidence about what some of them called “second generation” voting problems: switcheroos of polling places or polling hours, or changes to early voting that disproportionately affected minorities. (Racially polarized voting patterns are also a distinctive problem in the South, but the justices didn’t delve into that on Wednesday.) But for the court’s five conservatives—and swing voter Justice Anthony Kennedy appeared to place himself squarely in this group—it seemed clearly suspect for Congress to reauthorize Section 5 in 2006 along the same geographic lines that it first passed the law 41 years earlier.
The sharpest fighting over geography came when it was Solicitor General Donald Verrilli Jr.’s turn at the podium. Chief Justice John Roberts gave him a pop quiz. Which state has the worst ratio of white to African American voter turnout? Massachusetts. Which is best? Mississippi. Where is voter registration most disproportionate? Massachusetts again. (This time Mississippi comes in third, if I heard right.) When Verrilli didn’t know the answers, Roberts kindly supplied them. Yes, the solicitor general said, but Congress knew all of that in 2006 and cared about more than the “first generation” problems of turnout and registration. Lawmakers made the “cautious choice” to keep the old constraints in place.
This was Justice Samuel Alito’s opening: “There is no question that the Voting Rights Act did tremendous good. It’s probably one of the most successful laws of the 20th century,” and even beyond. “But in 2006, why not cover the whole country?” he asked. Or why not come up with “a new formula based on new statistics?” What if Congress had passed the 1965 Voting Rights Act based on numbers from 1919?
Verrilli kept arguing that Congress “wasn’t writing on a clean slate” and “had evidence of very substantial differences in Section 2 litigation” between states in the South and states elsewhere in the country. But now it became very clear that Kennedy wasn’t buying it. He called what Congress did in 2006 “reverse engineering,” and he didn’t mean that as a compliment. The idea, I think, is that Congress interpreted the evidence before it to justify renewing the old coverage formula, rather than thinking through what it all really added up to afresh. Kennedy’s kiss goodbye to Section 5: “The Marshall Act was good too, but times change.”
I could end there, because that’s when the 5 to 4 count seemed inevitable. But I have to tell you about how Justice Antonin Scalia understands the vote of 98 to 0 in the Senate to reauthorize the Voting Rights Act the last time around. This is proof not of the strength of the case for the law, but of what Scalia called “the perpetuation of racial entitlement.” Once you have such an “entitlement,” he said, “it’s very difficult to get out of them. There’s nothing to be gained by voting against it, and I am fairly confident it will be re-enacted in perpetuity unless the court can show that it’s unconstitutional.” In other words, “that you are treating states differently” for no good reason.
So this is how five conservative justices justify overriding the judgment of Congress about how to protect the rights of minority voters, past, present, and future. Sotomayor and Kagan tried to hit back. “Why should we make the judgment, and not Congress, about the types and forms of discrimination and how to remedy them?” Sotomayor asked.
This was during Rein’s rebuttal, and he must have counted to five and gotten overconfident, because he said that the problem the Voting Rights Act was meant to address had been solved. “The radical treatment cured the disease,” he said.
Kagan nailed him. “You said the problem has been solved,” she said. “But who gets to make that judgment—you, the court, or Congress?”
Oh, not me, Rein deferred. You.
“That’s a big new power you’re giving us!” Kagan exclaimed.
Five of her colleagues seem more than ready to take it.