Awaiting, with Trepidation, High Court’s Decision on Voting Rights Act

By Mark A. Posner, Senior Fellow, Lawyers' Committee for Civil Rights Under Law; Former Special Sec. 5 Counsel, Civil Rights Division, U.S. Department of Justice

Ever since July 2006, when Congress acted with overwhelming bipartisan majorities to reauthorize the "preclearance" requirement of Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, the civil rights community has waited with a mixture of anticipation and trepidation for the day when proponents and opponents of this key voting rights provision would stand before the Supreme Court to argue its constitutionality. That day, April 29, 2009, has finally come and gone, in the case of Northwest Austin Municipal Utility District Number One v. Holder. The Court's decision is expected in late June, and until then one is left to ponder and dissect the over 60 minutes of intense questioning offered up by eight of the nine Justices. Unhappily, this review strongly suggests that trepidation should be the predominant feeling while we wait for the Court to rule.

By way of background, Section 5 requires certain jurisdictions with a history of voting discrimination to obtain federal approval ("preclearance"), from either the Justice Department or the U.S. District Court for the District of Columbia, before implementing any change in a voting practice or procedure. Preclearance is obtained by demonstrating that the change does not have a discriminatory purpose or effect. The covered jurisdictions include all or parts of 16 states located primarily in the South and Southwest. Congress initially adopted Section 5 in 1965, and then reauthorized the statute in 1970, 1975, 1982, and 2006. The Supreme Court has upheld the constitutionality of the statute in four previous cases. In the current case, a three-judge panel of the D.C. District Court unanimously found the reauthorization to be constitutional, 557 F. Supp. 2d 9 (2008), and the plaintiff appealed to the Supreme Court.

As the oral argument began, much attention was focused on Justice Anthony Kennedy, as the justice who might be a swing vote on a Court that often has been sharply divided on civil rights issues. Justice Kennedy asked questions of all three attorneys who argued, the attorney for the plaintiff (an obscure municipal utility district located in Austin, Texas), the Deputy Solicitor General of the United States, and a civil rights attorney who spoke on behalf of several individuals and organizations that had intervened to defend the statute. Justice Kennedy's questions repeatedly returned to the single issue which he apparently believes is paramount: whether the record before Congress when it reauthorized Section 5 in 2006 justified Congress's decision to treat different states differently, keeping some states covered by Section 5 while leaving other states not covered. As the Justice colorfully put it, the question presented for him is whether Congress has justified treating the "sovereignty" of the covered states as being less than the "sovereign dignity" of the non-covered states.

Making this issue the sine qua non of whether Section 5 is constitutional puts Section 5 on shaky ground, in large part because this fundamentally alters the test the Court previously has employed to decide Section 5's constitutionality. In 1966, when the Court first upheld Section 5, the Court concluded that the coverage decisions made by Congress were rational, and thereafter the Court held that the validity of a Section 5 reauthorization depends on whether Congress has compiled a record demonstrating that voting discrimination continues to be a widespread and substantial problem in the covered areas. In reliance on this clear precedent, Congress created a massive pre-enactment record that made what was thought to be the necessary showing. This record also indicated that voting discrimination is a greater problem in the covered, rather than the non-covered, jurisdictions, but Congress did not make this question its primary focus. At oral argument, Justice Ginsburg nonetheless sought to suggest that there was quite a bit of information presented to Congress prior to the 2006 reauthorization that compared the covered and non-covered jurisdictions.

Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito frequently echoed Justice Kennedy's concern in their questioning. However, their questions also indicated some potential differences with Justice Kennedy. In particular, the Chief Justice suggested several times that the record of continuing problems in the covered jurisdictions may actually be quite miniscule, and expressed skepticism about the present-day relevance of the covered jurisdictions' history of voting discrimination; Justice Scalia appeared to agree with the Chief Justice on both points. In contrast, Justice Kennedy noted that a brief filed by several of the intervenors made "a good demonstration of discrete discriminatory acts" that have taken place in the covered areas since the 1982 reauthorization, though he too noted that much progress has been made since 1965.

Another potentially significant concern raised by Justices Kennedy, Scalia, and Alito centered on Congress's decision in 2006 not to readjust the "bailout" procedure, which allows certain covered areas in certain circumstances to escape from coverage. Justices Kennedy and Scalia suggested that the statute sets an impracticable or near impossible standard for obtaining bailout which, if true, would be an important consideration in undertaking the constitutional analysis. Justice Alito noted that while the municipal utility district may not, under the terms of the statute, be the type of jurisdiction that may seek to bail out, this might not make any sense.

Justice Clarence Thomas, in keeping with his longstanding approach to oral arguments, did not ask any questions. However, his record in prior voting rights cases strongly suggests that he will align himself with Justices who conclude that Section 5 is unconstitutional.

Justices Ruther Bader Ginsburg, David Souter, Stephen Breyer, and perhaps John Paul Stevens indicated that they are inclined to uphold the constitutionality of the 2006 reauthorization. In particular, Justice Ginsburg highlighted a significant question that could impact Justice Kennedy's vote: was there actually an alternative coverage formula available to Congress given Congress's interest in ensuring that the currently covered jurisdictions do not engage in backsliding, i.e., do not act to undercut the gains previously achieved. This conundrum could lead Justice Kennedy to identify the constitutional problem as being limited to the perceived defects in the bailout procedure (which probably could be resolved through a reasonably straightforward legislative "fix"), rather than defects in the coverage formula itself (which would be more challenging to address).

Justices Souter and Breyer strongly suggested that they are of the view that Congress compiled an ample and adequate record of continuing voting discrimination in the covered areas. Justice Ginsburg similarly noted the continuing problem of voting discrimination in the covered areas and the practical utility of Section 5.

Finally, Justice Stevens remained silent until the last few minutes of the argument, but then spoke up to question the relevancy of any comparison between the covered and non-covered jurisdictions.
The case also includes a statutory construction issue as to whether the plaintiff utility district qualifies as the type of jurisdiction that may seek to bail out. There appeared to be general agreement on the Court that, at least in terms of what the statute currently provides, the district is not eligible to bail out.