Wednesday, April 29, 2009

An Initial Take on the Voting Rights Act Argument -- Trouble for the VRA?

Heather K. Gerken

Having just listened to the rebroadcast of the Supreme Court argument on the constitutionality of Section 5 of the Voting Rights Act (VRA), I think that supporters of the VRA have few reasons to be cheerful. It is always dangerous to make prognostications based on the argument. But if one were reading tea leaves, two things should worry VRA supporters. First, Justice Kennedy asked about whether there are any real differences between the covered and non-covered jurisdictions four times, and it's not clear to me that he ever received an answer that satisfied him from the attorneys (that's not to cast aspersions on the attorneys defending the Act -- I thought they were excellent). As anyone familiar with Kennedy's federalism jurisprudence will tell you, his reference to the "sovereign dignity" of the covered jurisdictions should make VRA supporters nervous. Second, Justices Souter and Ginsburg worked very hard at the beginning of Greg Coleman's argument to suggest that the case could be dismissed on narrow grounds -- a statutory construction argument or standing. If one thinks that those Justices would be natural proponents of upholding Section 5, this, too, should make one a bit nervous. That being said, Justice Kennedy did soften his stance at the very end of the argument, while still returning to the question whether Congress had enough evidence about the differences between non-covered v. covered jurisdictions to justify maintaining the existing coverage formula. Supporters of the VRA better hope that someone comes up with an answer that he'll accept on that issue before the end of June.