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’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. 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.”