April 29, 2009

Live-Blogging the Oral Argument in NAMUDNO: VRA in Trouble

My initial impression is this:

I am often accused of being a "Chicken Little" when it comes to the Roberts Court and voting rights. But so far I have no reason to retract my pessimism. I think the best that supporters of section 5 can hope for is a controlling opinion by Justice Kennedy, perhaps speaking only for himself, finding a way to read the statute to allow bailout and ducking the constitutional question. I still think that is unlikely. The more likely scenario is 5 votes to strike down the Act. Chief Justice Roberts, and Justices Alito, Scalia and (presumably) Thomas are surely there. Justice Kennedy expressed considerable skepticism of the federalism costs and "substantial burdens" being imposed on some jurisdictions but not others, without adequate comparative evidence that such laws are still necessary. If this happens, it could well be that congress comes back to write a new (and perhaps even better) Voting Rights Act. But, as I noted in my Slate piece, depending on how the Court writes its decision, Congress's ability to maneuver in this area could be constricted.

Below is my live-blogging of the released audio. Some of the quotes may not be accurate. The transcript, when released, will be the best source of information.

Coleman is up for the challengers.
The Justices appear not to be buying the statutory argument for bailout. Justice Kennedy notes practical problems with doing so. (This is what I expected what would happen with the statutory argument.)

Kennedy and Souter question whether the MUD has standing to raise the bailout point.

Lyle is putting up his post in progress (he's had the advantage of hearing the entire argument live). He thinks the Court may expand the bailout provision. So perhaps the discussion is going to turn in this way.Lyle says that Kennedy appears to be the swing vote.

A knowledgeable observer who attended oral argument writes that things look "bleak" for the VRA.

In answering Justice Souter's point that there's still a strong empirical evidence of discrimination, Coleman seems to say that section 203 (the language provisions) and Section 2 are in fact constitutional, in contrast to section 5. He seems to be giving a way for the Court to strike down section 5 without endangering the rest of the statute (my Slate piece states the belief that an opinion striking down section 5 could not be so easily cabined).

Justice Breyer does a thorough job comparing the evidence that was enough for constitutionality in City of Rome with the evidence in this case.

Important discussion: Kennedy asks if there was any control or comparative data, comparing covered jurisdictions and non-covered jurisdictions. He says that would be a key to the constitutionality. He asks about Congress or the three judge court.
Coleman responds by pointing to Ellen Katz's section 2 differential study (whose relevance has been debated among election law scholars).

Coleman attacks the old coverage formula. Justice Ginsburg asks for other coverage formula. Coleman says that using the old formula in modern times, only Hawaii would be covered.

At the end of Coleman's argument (before rebuttal), there is a discussion of objection rates.

Katyal is up for the government.

Chief Justice Roberts points to the low objection rates and says that there are such low objection rates, that the law appears to be sweeping too broadly, and it is not congruent and proportional. Katyal says that the law is a good deterrent. He says Coleman testified, making these arguments, and Congress rejected them, seeing it as a good deterrent.

In response to Scalia mentions an "elephant whistle" that keeps the elephants away. How do we know if it works? Scalia says that Katzenbach was a long time ago, and that things have changed.

J. Alito asks if Congress would have had the power to extend section 5 to the entire country. Katyal says no. Katyal said there was specfic evidence found by Congress about Texas.

Alito mentions the difference between Latino and white registration, at 18%. Not good, but not as bad a disparity as in California.

Katyal said that it is the difference in rates, plus historical record of discrimination.

Scalia: At what point does the history stop being relevant?

This appears to be a key exchange:
J. Kennedy asks whether Congress has the power to say that these covered jurisdictions have less sovereignty than other states. Minority opportunity districts protected in some states but not others. He says it is a "substantial burden" that this is constitutionally permitted.

The question is whether the Act should be continued now---it is not whether it was once required.

Scalia says bailout is too tough. Only a few jurisdictions in Va. bailed out. This shows that the act is too tough. He suggests it is an incumbent protection benefit. Everyone who voted for it was elected under this system.

Howard links to this early AP report, which seems to see things as Lyle does: Kennedy holds the key vote, and he's quite skeptical of section 5's constitutionality.

Kennedy indeed seems quite skeptical; this is a surrendering of power. Katzenbach stands for the proposition that defiance was the key to upholding the initial section 5. No more defiance.
I would say that this does not look good for section 5. This is exactly what I've been feared.

Scalia, Alito, Roberts, and presumably Thomas to strike down. That's very clear. Souter, Breyer, Ginsburg, to uphold. Have we heard anything significant from Justice Stevens? As I wrote in my Slate piece: "But it is not altogether clear that Kennedy will determine the court's ruling. As a Reagan lawyer in 1982, now Chief Justice Roberts spearheaded the efforts of that administration to prevent expansion of the Voting Rights Act. In a 2006 case on controversial Texas re-redistricting, Roberts remarked in putting forth a narrow reading of the act that it is 'a sordid business, this divvying us up by race.' Justices Alito, Thomas, and Scalia have all lined up on the same side. More surprisingly, perhaps, even Justices Stevens and Souter may not vote to uphold Section 5. In a Section 5 case the court decided last year, the two issued an opinion stating that "it may well be true that today [Section 5] is maintaining strict federal controls that are not as neces­sary or appropriate as they once were.'"

Another key exchange with Kennedy:
The fact that bailout may not be working well "gives me serious pause."
There's a discussion of the bailout amendment that I had suggested in 2006. Katyal says Congress rejected it because of the need for deterrence.

Adegbile is up. Roberts asks if there is more discrimination in the South than in the North? Adegbile tries to thread the needle.

Ginsburg says 25 years may be right, picking up from the Michigan school case from a few years ago. Adegible: there was a more specific reason: to cover more redistrictings.

Breyer: why didn't Congress update or change the formula?
Adegbile: Did state by state analysis.
Alito: Is there more discrimination in Virginia compared to North Carolina or Tennessee? (I may have my states wrong?) Scalia mentions the first black governor, and black Chief Justice of the Supreme Court. Adegbile: there have been African Americans to rise to high office, but a single person rising to the seat has a salutary effect, but does not change the situation on the ground. Points to racially polarized voting and election officials manipulate the rules of the game for voting.

Kennedy points to the NAACP brief and the Persily brief. They make good points. But my concern is that Congress did not address this to the rest of the country.
Return to the Katz section 2 study.

Roberts says that the section 2 standard does not show intentional discrimination, and that it is not enough. He returns to the very low objection rate.

Nate Persily emails:
"To the extent Kennedy was signaling anything, it was not receptive to the vra. He seemed to take the federalism costs as being significant. I could also envision some fractured decision that leads to some ultimate resolution along the statutory argument.

"If the Court strikes down the coverage formula though, this might be an example of "be careful what you wish for" for the law's opponents. The Dems now have the opportunity to write the VRA that they want rather than the one they could pass. This could open up the policy window for all kinds of stuff to come in (voter reg reform, felon disfranchisement, etc.). At the same time, if this decision changes the constitutional test for protecting voting rights, it makes litigation against federal election laws ever more likely."

9:48 Coleman rebuttal
Stevens: Why is it relevant that there are states out there that are not covered? Is this the first Stevens question? I'll have to check the transcript.
From the question, Stevens sounds like a likely vote to uphold the law, but it is not clear.

Coleman: Need comparative data to prove that this is constitutional.

Posted by Rick Hasen at April 29, 2009 08:47 AM