Historically Freighted Challenge to Voting Act Arrives at High Court

WASHINGTON (CN) - The Supreme Court heard arguments Wednesday over a provision of the Voting Rights Act that imposes supervision by the federal government on political districts with a history of race discrimination. "So your answer is that Congress can impose this disparate treatment forever because of the history in the South," Chief Justice John Roberts asked the government's lawyer. "Is it your position that today Southerners are more likely to discriminate than Northerners?"

Congress enacted the Voting Rights Act in 1965 to address racial discrimination in voting. Section five of the act, a sunset measure, prohibited local governments with a history of racism from changing their voting laws until they proved to the U.S. Attorney General that the change was not racially motivated.

Lawyers for a Texas utility district are challenging that provision, saying it discriminates among states without sufficient reason.

Justice Anthony Kennedy underscored that argument when he said, "This is a great disparity in treatment, and the government of the United States is saying that our states must be treated differently. Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio."

But Justice David Souter was skeptical, noting that the Texas district at the heart of the dispute continued to show a much greater voter turnout among whites than among Hispanics. He suggested the discrimination that caused passage of the Voting Rights Act has not disappeared.

"We've got a16-point registration difference on Hispanic and non-Hispanic white voters in Texas," said Justice Souter. "With a record like that, how can you maintain as a basis for this suit that things have radically changed?"

Since Congress enacted the Voting Rights Act in 1965, legislators have reauthorized the measure four times. Most recently, the Senate was unanimous and the House only had 33 dissenting members when they voted to extend the measure to 2031.

Justice Antonin Scalia commented on the lopsided nature of the vote.

"Thirty three to 390," he said. "You know, the Israeli Supreme Court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid because there must be something wrong there."

Gregory Coleman, from Yetter Warden & Coleman, represented the Northwest Austin Municipal Utility District of Texas. He argued that the district had 20 years of compliance under its belt, and it sued to be removed from the obligations under section five to submit its changes to the attorney general, and simultaneously argued that the provision was unconstitutional.

The two claims mean the Supreme Court could avoid deciding the constitutionality of measure if it removes the district from the requirement that it comply with section five. At that point, the district wouldn't have the standing to challenge the constitutionality of the provision because it would no longer be affected by it.

When Justice Souter challenged Coleman's argument that the district was clean of racism and noted the 16-point difference between Hispanic and non-Hispanic white voter turnout, Coleman replied by pointing to Massachusetts.

He said Massachusetts does not have to comply with section five even though itt has a differential turnout between whites and Hispanics and blacks that is in the high 20s. This disproportionate ratio, he argued, is far higher than any region currently covered under section five.

The entire state of Texas is subject to the measure, but Coleman argued that districts within Texas should be allowed to seek bailout from the provision. After all, he said, California is only partially covered by the rule.

There were also some questions on the issue of standing to sue.

Justice Souter said the district could not claim it had suffered under the effect of section five. "There's no claim that your district is doing anything improper," he said. "No claim is being made against you. I don't see how that gets you in court."

Justice Scalia, who sounded favorable to the district's arguments, countered that the district does have standing to sue. "Is it any different from a Federal law prohibiting certain speech? Do you have to subject yourself to the penalty for that speech before you can attack the law? I don't think so," he said.

The other secondary argument after constitutionality was over the district's right to be excluded from the operation of section five. The law only permits political subdivisions to seek bailout from the requirements. Coleman argued that the district was a political subdivision.

"It's certainly not a political subdivision under the statutory definition," replied Justice Roberts.

Deputy Solicitor General Neal Katyal disagreed with Coleman. Katyal argued that the district should continue to submit any changes in voting law to the U.S. attorney general. After all, he said, the provision has worked. The overwhelming majority of requested rule changes have been allowed, he said. The rule has deterred racism, he concluded.

Justice Roberts disagreed. "It's the elephant whistle," he said. "I have this whistle to keep away the elephants. Well, that's silly. There are no elephants, so it must work."

Katyal replied that Texas still leads the nation in the number of voting objections under section five, so there must still be a problem.

Katyal was nevertheless pressed to explain why Texas, as opposed to other states, should be burdened with this law.

"The difference between Latino registration and white registration in Texas was 18.6 percent, which is not good, but it's substantially lower than the rate in California, which is not covered, 37 percent; Colorado, 28 percent; New Mexico, 24 percent; the nationwide average, 30 percent," said Scalia.

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