In 2009, the U.S. Supreme Court signaled Congress. Writing for the majority, Chief Justice John Roberts noted the “historic” and “undeniable” accomplishments of the Voting Rights Act, from increasing sharply registration and turnout of black and other minority voters to the many minority candidates who have won election. What he found troubling was that in reauthorizing the law in 2006, lawmakers failed to account for the changing political landscape as they relied on data “now more than 35 years old.”
The chief justice had foremost in mind Section 5 of the law, requiring states, mostly in the South, to get preapproval of changes, large and small, in voting procedures. The section has contributed greatly to taking down discriminatory practices. On Wednesday, Roberts and four of his colleagues appeared ready to tell Congress they had waited long enough for an update.
Justice Antonin Scalia called the section “a perpetuation of racial entitlement.” Justice Anthony Kennedy suggested it amounted to states falling “under the trusteeship of the United States government.”
Will the court order lawmakers to make necessary adjustments, all but erasing the section in light of a polarized Washington unlikely to find the consensus needed to act? Recall that oral arguments often do not telegraph the outcome of a case.
Yet if a majority does extend the logic of its earlier warning and the track of its questions last week, it will take an extraordinary leap. When a lawyer for the state of Alabama argued that the “disease” of voter discrimination has been “cured,” Justice Elena Kagan responded: “You said the problem has been solved. But who gets to make that judgment — you, the court or Congress?”
A divided federal appeals court upheld the law in a telling way last spring. It noted the striking reach of Section 5 and that the record compiled by lawmakers in making their choice was “by no means unambiguous.” Still, it held that Congress “drew reasonable conclusions from the extensive record that it gathered.” More, it reminded that the 14th Amendment and the 15th Amendment, ratified after the Civil War, “entrust Congress with ensuring the right to vote … is not abridged on account of race.”
The appeals court declared: “In this context, we owe much deference to the considered judgment of the people’s elected representatives.”
Read the accounts of the oral arguments before the Supreme Court, and the justices outlined the conflicting evidence. Chief Justice Roberts noted that Massachusetts has a worse “ratio of white vote turnout to African-American turnout” than Mississippi. Justice Kagan explained that Alabama would fall under practically any formula devised. Congress weighed all of this in making its decision. How did the votes fall? The Senate tally was 98-0 to reauthorize the act. The House voted 390-33.
The huge majorities send their own powerful signal. To be sure, lawmakers might have reworked the formula for applying Section 5 seven years ago or since then. Yet they made a considered choice not to do so, a decision hardly outside the bounds of reason or the Constitution. Is it really the Supreme Court’s place to tell Congress in this instance that its legislative judgment isn’t good enough?