JEFFREY BROWN: Enacted by Congress in 1965 and renewed as recently as 2006, the Voting Rights Act has been one of the federal government’s most potent tools to guarantee equal access to the polls.
One key provision applies to all or parts of 16 states with a history of racial discrimination in voting and requires that they seek prior approval, known as “pre-clearance,” from the federal government for any changes in how elections are conducted.
A Texas municipal utility district is asking the Supreme Court to declare that provision unconstitutional, and arguments were heard today.
Marcia Coyle of the National Law Journal was there and is here again with us tonight.
MARCIA COYLE, National Law Journal: Thanks, Jeff.
JEFFREY BROWN: Now, take us back to this landmark civil rights legislation. What kind of practices was this provision intended to combat?
MARCIA COYLE: There were many practices. The act was enacted in 1965. There were many practices existing at the time that were designed to either intimidate or stop minority voters from going to the polls.
One of the most notorious would have been the poll tax, but there were others that involved identification requirements. There were many creative ways to do this at the time.
And the provision we’re talking about today, Section 5 of the Voting Rights Act, is considered the heart of the Voting Rights Act, or its engine, because in those jurisdictions that we call “covered jurisdictions” that have to seek pre-clearance, there was a long, deeply rooted pattern of discrimination on the basis of race.
JEFFREY BROWN: All right. So fast forward to today. And this particular case involves, as I said, a Texas municipal district.
MARCIA COYLE: Yes.
JEFFREY BROWN: Now, what did it have to do? And what was its legal argument today?
MARCIA COYLE: Well, this district has elections for its board of directors. It’s a municipal district that provides waste and other public services. It’s not like a county or a city.
It traditionally held its elections in garages or private homes, and it wanted to move its elections into a public place, for example, a school district. In order to do that, it had to seek pre-clearance from the Department of Justice or a federal court in Washington, because it’s in Texas, which is a covered jurisdiction under Section 5.
But instead of seeking pre-clearance, the district sued the attorney general of the United States, saying, We qualify to bail out of Section 5. If we don’t, if you find we don’t, then we think Congress exceeded its powers under the 14th Amendment when it extended Section 5 of the Voting Rights Act in 2006, and that was unconstitutional.
Judges skeptical of claims
JEFFREY BROWN: All right. So the lawyer for this Texas district is Gregory Coleman.
MARCIA COYLE: Yes.
JEFFREY BROWN: He was arguing the case today, and he ran into some immediate skepticism.
MARCIA COYLE: From Justices Souter, Ginsburg, and Breyer.
JEFFREY BROWN: All right. And we have a clip of an exchange with Justice Souter. Let's listen to that.
MARCIA COYLE: OK.
GREGORY COLEMAN, lawyer for Northwest Austin Municipal Utility: Pre-clearance really was an extraordinary remedy, and it recognized that this is a remedy that would not otherwise be appropriate but for the extraordinary emergency circumstances that existed at the time. Nobody has challenged that, but we are in a different day.
JUSTICE DAVID SOUTER, U.S. Supreme Court: Your argument is largely based on the assumption that things have significantly changed, and that, therefore, Congress could not, by whatever test we use, extend Section 5, as it did.
But what we've got in the record in front of us -- I don't have a laundry list to read, but, I mean, we've got -- I think, at the present time, a 16-point registration difference on Hispanic and non-Hispanic white voters in Texas.
We've got a record of some 600 interpositions by the Justice Department on Section 5 proceedings, Section 5 objections, over a period of about 20 years. We've got a record that about two-thirds of them were based on the Justice Department's view that it was intentional discrimination. We've got something like 600 Section 2 lawsuits over the same period of time.
The point that I'm getting at is, I don't understand, with a record like that, how you can maintain as a basis for this suit that things have radically changed. They may be better, but to say that they have radically changed to the point that this becomes an unconstitutional Section 5 exercise within Congress's judgment just seems to me to deny the empirical reality.
JEFFREY BROWN: Now, this is one of these rare cases where the court releases an audio recording, signaling that it thinks it's important, I guess.
MARCIA COYLE: Important and of high interest to the public, or should be of high interest to the public.
Renewing the protections
JEFFREY BROWN: All right. So what we were hearing from Justice Souter was this notion that has anything really changed, right, is what he's questioning?
MARCIA COYLE: Yes, this is the central issue in the case. Did the findings, the record that Congress built in order to justify extending Section 5 for another 25 years, was that...
JEFFREY BROWN: Which was what they did in 2006.
MARCIA COYLE: ... '06, right -- was that sufficient to pass constitutional muster here?
The whole guts of Mr. Coleman's argument is, and his response to Justice Souter and the others who said they thought this record was massive and convincing, basically, his response is Congress's record was based on evidence from 1964. Congress did not compare the covered jurisdictions with the jurisdictions that aren't covered. Congress didn't look for the problem areas today.
JEFFREY BROWN: Now, on the other hand, when the federal government's lawyer began his side defending this position -- that's Neal Katyal -- he also ran into immediate opposition, some of it expected, I guess, from Justices Scalia and Roberts. What did they say?
MARCIA COYLE: Their complaint seemed to be -- or their questions focused primarily on, when does it stop? Section 5 has been renewed four times in its lifetime. It's now been renewed for another 25 years. Chief Justice Roberts said it seems like it would go on forever.
And Mr. Katyal, who's the deputy solicitor general of the United States, said Congress determined, on the basis of the record, its findings, its investigation, that there still is deeply rooted discrimination and we need another 25 years. If, in the future, Congress can't make that case, then you, the Supreme Court, can strike down Section 5.
Kennedy questions government's case
JEFFREY BROWN: All right, now there was also skepticism from one of the key justices we always talk about, Anthony Kennedy.
MARCIA COYLE: Yes.
JEFFREY BROWN: And always a swing vote here. He also was skeptical. We have an exchange that he had with Neal Katyal. Let's listen to that now and talk about that.
MARCIA COYLE: OK.
JUSTICE ANTHONY KENNEDY, U.S. Supreme Court: The 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 that the governments in one are to be trusted less than the governments in the other. And does the United States take that position today?
NEAL KATYAL, deputy solicitor general: I wouldn't put it at all in those terms. I would say what Congress found is that there's a historical amount of discrimination, coupled with recent evidence and comparative data between covered and non-covered jurisdictions, that justifies continuation of a remedy that states now overwhelmingly...
JUSTICE ANTHONY KENNEDY: But then my point stands. You said there's a basis for treating states quite differently as to this fundamental right that we all agree on with respect to voting. This is a great disparity in treatment, and the government of the United States is saying that our states must be treated differently. And you have a very substantial burden if you're going to make that case.
NEAL KATYAL: The burden is on Congress to say, is continuation of this landmark achievement, one of the most transformative acts in American history, still justified? Because with this act, what Congress did was essentially redeem itself in the eyes of the world.
JUSTICE ANTHONY KENNEDY: 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. And that is for Congress to show.
Anticipating a landmark decision
JEFFREY BROWN: Very interesting discussion about where we are at as a nation, of course, in the context of the election of President Obama, as well.
MARCIA COYLE: Absolutely. And as Justice Kennedy put it, that is the question, and he's probably going to be the one who will determine the answer.
JEFFREY BROWN: This signals to you that this will be a close vote?
MARCIA COYLE: Yes. They generally break down 4-4 with Justice Kennedy casting the decisive vote, and this could well be a landmark decision.
JEFFREY BROWN: And what are the stakes, when you say "a landmark decision"?
MARCIA COYLE: Well, if the court were to strike down Section 5, the nation would see, probably very soon, whether the reforms brought about by the Voting Rights Act are lasting and permanent, or whether, as the United States and the NAACP Legal Defense And Education Fund argued today, there will be backsliding and we'll go back to some of those very evil practices.
JEFFREY BROWN: All right, Marcia Coyle, thanks, as always.
MARCIA COYLE: My pleasure, Jeff.