A sharply divided US Supreme Court took up a potential landmark case on Wednesday examining whether Congress overstepped its authority in 2006 when it reauthorized a key portion of the Voting Rights Act.
Section 5 of the law requires state and local jurisdictions with a history of racial discrimination to obtain federal permission before making any changes to voting procedures. The law, first passed in 1965, covers all or parts of 16 states – primarily in the South.
The measure was set to run for five years. Congress has since reauthorized it four times, including in 2006.
Now, 44 years after its passage, with the recent election of the nation's first African-American president and other civil rights advances, some analysts question whether Section 5 of the Voting Rights Act is still justified and necessary. On Wednesday, Justice Anthony Kennedy asked: Can Congress continue to treat jurisdictions differently?
The case at issue is Northwest Austin Utility District v. Holder. The Northwest Austin Municipal Utility District has no history of racial discrimination, but because it is located within the state of Texas, which is a covered jurisdiction under Section 5, it must obtain prior federal approval for any changes affecting its elections.
During oral argument on the case Wednesday at the Supreme Court, the nine justices split along familiar liberal and conservative lines. Justice Kennedy seemed poised to cast the deciding vote.
"No one questions the validity, the urgency, the essentiality of the Voting Rights Act," he said. "The question is whether or not it should be continued with this differentiation between the states."
Kennedy and several conservative justices said Congress appears to have relied on the past record of discrimination in the 1960s to justify its recent 25-year extension of Section 5.
Several liberal justices countered that current evidence of discrimination is more than enough to justify the reauthorization.
Kennedy said complying with the law cost state and local governments $1 billion over 10 years. He said he was concerned that the law caused the federal government to treat the states unequally.
"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. "The governments in one are to be trusted less than the governments in the other."
Deputy Solicitor General Neal Katyal responded that unlike the 1960s, the states generally were no longer challenging federal oversight in court. He said the states now "overwhelmingly appreciate" being subject to the requirements of Section 5.
Kennedy persisted. "This is a great disparity in treatment," he said. "The government of the United States is saying that our states must be treated differently. You have a very substantial burden if you're going to make that case."
Mr. Katyal said Congress met the burden by demonstrating that protection of minority voting rights via Section 5 enforcement was a "landmark achievement, one of the most transformative acts in American history."
When it was originally passed in 1965, Section 5 was aimed at countering widespread and blatant efforts to thwart blacks and other minorities from exerting political power through the ballot box.
Civil rights activists say Section 5 continues to be not only a proactive means of fighting discrimination, but one of the most effective weapons in the government's civil rights arsenal. It is a strong deterrent against backsliding, they say.
The issue arises in the context of a lawsuit filed by a small community board near Austin, Texas. The Northwest Austin Municipal Utility District was created in the mid-1980s to facilitate the building and operation of a 700-acre residential community called Canyon Creek. The community is home to about 3,500 residents with a median family income of $103,200.
Canyon Creek is governed by a five-member elected board. It is those elections that must qualify for preapproval under Section 5.
Lawyers for the district asked that it be exempted from the Section 5 requirements. Failing that, they argued that the law is unconstitutional because Congress failed to assemble evidence of ongoing, widespread voting rights violations egregious enough to justify the severe federal intrusion.
A three-judge panel in Washington rejected both arguments. The lawyers appealed to the Supreme Court.
Gregory Coleman, a lawyer for Northwest Austin, acknowledged that Congress in the 1960s was justified in fashioning an extraordinary remedy like Section 5. But he said, "We are in a different day."
The comment prompted Justice David Souter to say: "Your argument is largely based on the assumption that things have significantly changed and that therefore Congress could not by whatever test we use extend Section 5."
Justice Souter said the record compiled by Congress does not demonstrate a radical reduction in the level of discrimination.
Mr. Coleman said Section 5 was never intended to be a nondiscrimination statute. It was written specifically to defeat efforts to circumvent the Voting Rights Act, he said.
Chief Justice John Roberts asked at what point a past record of discrimination stops justifying federal intervention against some jurisdictions, but not others.
Katyal, the deputy solicitor general, said Congress has the power to deal with such issues one step at a time. He noted that in 2006, lawmakers made a judgment that Section 5 would be necessary for another 25 years.
"At some point, it begins to look like ... this is going to go on forever," Chief Justice Roberts said.
Katyal replied with a warning. "The court is being asked to do something that has never been done before, to say that Congress exceeded the balance of its [constitutional] powers in an area involving race and voting," he said. "That has never happened before."
A decision in the case is expected by late June.