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Roger Clegg Analyzes Oral Argument in Voting Rights Case

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by Publius
Posted February 28, 2013, 10:37 AM

Roger Clegg--president and general counsel of the Center for Equal Opportunity, which joined an amicus brief filed by Pacific Legal Foundation and supporting the plaintiff--comments at SCOTUSblog:

I’ll begin with the box score:  Chief Justice Roberts, Justice Scalia, and Justice Alito gave no indication that they might uphold Section 5, and while Justice Thomas asked no questions today he wrote in 2009 (in NAMUDNO v. Holder) that he thinks Section 5 is unconstitutional.  Conversely, Justices Sotomayor, Kagan, and Ginsburg gave no indication that they had any problem with Section 5.  Justice Kennedy was generally skeptical of Section 5’s constitutionality, but had a question or two that suggests he is perhaps not as skeptical as the other conservatives; Justice Breyer seemed generally supportive of Section 5’s constitutionality, but he had some moments where he certainly evinced more skepticism than the other liberals.   I’ll also note that Justice Kennedy seemed to become more skeptical of Section 5 as the argument went on – and so did Justice Breyer.

The bottom line, then, is that those who predicted that Section 5 is in trouble were right.

There were basically two themes developed at the argument:  How much deference is due Congress, and how persuasive is the evidence that the covered jurisdictions are worse actors today than the non-covered jurisdictions?  Each was dramatized by an that exchange would be a sound bite, if the Court had sound bites.

With the latter theme, indeed, came perhaps the most dramatic part of the argument:  Chief Justice Roberts’s questioning of the Solicitor General at the beginning of his time, in which the Chief Justice showed that, at least by the most obvious metrics, Mississippi is much less deserving of coverage than Massachusetts.

The former theme provided the most tension between the justices. Justice Scalia bluntly noted – twice – that Congress is very unlikely ever to do anything but reauthorize Section 5, since politically there is no reason now to vote against it and every reason to vote in favor of it.

In making this point, Justice Scalia used the phrase “racial entitlement” to describe one reason why a statute like this will never be allowed to expire.  Justice Sotomayor apparently took offense at this phrase, and expressed that to Justice Scalia by asking the plaintiff’s counsel, on rebuttal, whether he thought the right to vote was a racial entitlement – suggesting, that is, that this was Justice Scalia’s position.

I think, though, that what Justice Scalia was adverting to was the fact that Section 5 is now used to create and protect voting districts that are identifiably black (or Latino).  It does this through the concept of “vote dilution” and Section 5’s “effects” test, both of which were also alluded at the argument, though this phenomenon was never discussed in as much detail as it might have been.

Indeed, I would have like to have seen more discussion of this particular racial entitlement, and not only so that Justices Scalia and Sotomayor will better understand each other.  As Joshua Thompson and I discussed on National Review Online earlier this week, it is the principal use that is made nowadays of Section 5 – and using racial gerrymandering to create segregated voting districts is not only completely inconsistent with the ideals of the civil rights movement, but raises additional constitutional problems for Section 5.

A lesser but still important theme at oral argument today was how Section 5 fits in with other portions of the Voting Rights Act – particularly one (Section 2) that might take up the slack if Section 5 were struck down and, conversely, one that makes the singling out of some jurisdictions by Section 5 seem more reasonable (the bail-out provision).

I’ll end by noting the adage that it’s hard to win a case at oral argument, but quite possible to lose one.  I don’t think that any of the three advocates lost their case today.  But I do think that Section 5’s days are numbered – and rightly so.

I’ll begin with the box score:  Chief Justice Roberts, Justice Scalia, and Justice Alito gave no indication that they might uphold Section 5, and while Justice Thomas asked no questions today he wrote in 2009 (in NAMUDNO v. Holder) that he thinks Section 5 is unconstitutional.  Conversely, Justices Sotomayor, Kagan, and Ginsburg gave no indication that they had any problem with Section 5.  Justice Kennedy was generally skeptical of Section 5’s constitutionality, but had a question or two that suggests he is perhaps not as skeptical as the other conservatives; Justice Breyer seemed generally supportive of Section 5’s constitutionality, but he had some moments where he certainly evinced more skepticism than the other liberals.   I’ll also note that Justice Kennedy seemed to become more skeptical of Section 5 as the argument went on – and so did Justice Breyer.

The bottom line, then, is that those who predicted that Section 5 is in trouble were right.

There were basically two themes developed at the argument:  How much deference is due Congress, and how persuasive is the evidence that the covered jurisdictions are worse actors today than the non-covered jurisdictions?  Each was dramatized by an that exchange would be a sound bite, if the Court had sound bites.

With the latter theme, indeed, came perhaps the most dramatic part of the argument:  Chief Justice Roberts’s questioning of the Solicitor General at the beginning of his time, in which the Chief Justice showed that, at least by the most obvious metrics, Mississippi is much less deserving of coverage than Massachusetts.

The former theme provided the most tension between the justices. Justice Scalia bluntly noted – twice – that Congress is very unlikely ever to do anything but reauthorize Section 5, since politically there is no reason now to vote against it and every reason to vote in favor of it.

In making this point, Justice Scalia used the phrase “racial entitlement” to describe one reason why a statute like this will never be allowed to expire.  Justice Sotomayor apparently took offense at this phrase, and expressed that to Justice Scalia by asking the plaintiff’s counsel, on rebuttal, whether he thought the right to vote was a racial entitlement – suggesting, that is, that this was Justice Scalia’s position.

I think, though, that what Justice Scalia was adverting to was the fact that Section 5 is now used to create and protect voting districts that are identifiably black (or Latino).  It does this through the concept of “vote dilution” and Section 5’s “effects” test, both of which were also alluded at the argument, though this phenomenon was never discussed in as much detail as it might have been.

Indeed, I would have like to have seen more discussion of this particular racial entitlement, and not only so that Justices Scalia and Sotomayor will better understand each other.  As Joshua Thompson and I discussed on National Review Online earlier this week, it is the principal use that is made nowadays of Section 5 – and using racial gerrymandering to create segregated voting districts is not only completely inconsistent with the ideals of the civil rights movement, but raises additional constitutional problems for Section 5.

A lesser but still important theme at oral argument today was how Section 5 fits in with other portions of the Voting Rights Act – particularly one (Section 2) that might take up the slack if Section 5 were struck down and, conversely, one that makes the singling out of some jurisdictions by Section 5 seem more reasonable (the bail-out provision).

I’ll end by noting the adage that it’s hard to win a case at oral argument, but quite possible to lose one.  I don’t think that any of the three advocates lost their case today.  But I do think that Section 5’s days are numbered – and rightly so.

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