Court Reveals Customary Divide In Wrestling With Anti-Bias Law
Kennedy's Vote Will Be Key in Challenge to Voting Rights Act

By Robert Barnes
Washington Post Staff Writer
Thursday, April 30, 2009

The Supreme Court yesterday split along a familiar ideological battle line in its consideration of the Voting Rights Act, apparently leaving Justice Anthony M. Kennedy in the pivotal position of deciding the fate of what a government lawyer called "one of the most transformative acts in American history."

Kennedy acknowledged the success of the 1965 act but voiced considerable reservations about the key provision in question, Section 5. It requires some states, mostly in the South, to have any changes in election laws or practices approved in advance by federal authorities. The rest of the nation must abide by the law's requirements but does not need "preclearance."

"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," Kennedy said, referring to Congress's 2006 reauthorization of the act.

It was a theme he returned to repeatedly. "This is a great disparity in treatment, and the government of the United States is saying that our states must be treated differently," Kennedy told Deputy Solicitor General Neal Katyal. "And you have a very substantial burden if you're going to make that case."

The case involves what Justice Samuel A. Alito Jr. noted was "this immense constitutional question" brought by "this tiny utility board." The Northwest Austin Municipal Utility District No. 1 is subject to the preclearance requirements because it is in Texas, one of the covered states, even though the district board has never been accused of discrimination.

A lower court ruled that the district does not meet the statute's definition of the kind of jurisdiction that can "bail out" of the law, and the district agreed to serve as a test case for Gregory S. Coleman, a former Texas solicitor general.

He argued that the restrictions of the law were needed in 1965, but not now, and that Congress did not undertake the unpopular task of deciding whether the states included earlier are the right ones today.

Coleman told the court that nondiscrimination statutes must be enforced, but he added that "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."

But Katyal said that the court owes Congress deference when it is attempting to enforce the Constitution's guarantee of voting rights for all and that lawmakers seriously considered whether there was evidence that justified extending the restrictions.

"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," Katyal said.

But deference was in short supply among the conservative justices. Justice Antonin Scalia said Congress's lopsided approval of the extension -- no senators and only a few representatives objected -- was a reason to distrust the outcome.

"Do you ever seriously expect Congress to vote against a reextension of the Voting Rights Act?" Scalia asked Debo P. Adegbile, a lawyer with the NAACP Legal Defense and Educational Fund. "Do you really think that any incumbent would vote to do that?"

Chief Justice John G. Roberts Jr. had another question for the lawyer: "Is it your position that today Southerners are more likely to discriminate than Northerners?"

Adegbile said he would not use those terms, but he pointed to evidence of repeated infractions.

The liberal justices, on the other hand, challenged Coleman's assertions that Congress did not have a reason to extend the restrictions on the covered states, pointing to, among other things, hundreds of Justice Department objections to proposed changes.

"I don't understand, with a record like that, how you can maintain as a basis for this suit that things have radically changed," Justice David H. Souter said.

The court has found Section 5 -- which covers Virginia, Alaska, Alabama, Arizona, Georgia, Louisiana, Mississippi, South Carolina and Texas and parts of seven other states -- constitutional four times over the years.

Before the court announces its decision in the case before the term ends in June, speculation will be on whether Kennedy is ready to declare the law unconstitutional or whether there is a way out, perhaps by loosening the requirements on how covered jurisdictions can bail out.

The case is Northwest Austin Municipal Utility District Number One v. Eric H. Holder Jr., Attorney General.

View all comments that have been posted about this article.

© 2009 The Washington Post Company