By Joan Biskupic, USA TODAY
WASHINGTON — In vigorous arguments over the scope of federal power to screen state election laws in states with a history of discrimination, the Supreme Court justice who could cast the deciding vote made clear his dueling concerns.
Justice Anthony Kennedy, who in recent years has been the deciding vote on race cases, said Wednesday he believes the 1965 Voting Rights Act has prevented bias discrimination in the covered states but that it may now, decades after passage, be unfairly punishing some states over others.
The disputed provision gives the Justice Department authority to review proposed election-law changes in nine states, mostly in the South, and several counties and municipalities where race discrimination has historically been most flagrant. The act, passed in 1965, has been repeatedly renewed by Congress and upheld by the court over the years. At issue now is Congress's 2006 renewal of the act.
Kennedy suggested by many of his questions that he thought the covered states were being forced "to surrender" their powers to the federal government.
"This is a great disparity in treatment," he said at one point, emphasizing the burden on the covered states to bring their proposed election law changes to the federal government. He challenged a Justice Department lawyer on the view that the "sovereignty" of the state of Georgia, for example, would be less than that of northern states not covered by the Voting Rights Act provision known as Section 5.
While Kennedy generally opposes government policies that continue to take race into account to remedy historic bias, he has charted a middle course on this ideologically divided court. His concerns seemed to tip toward rejection of the disputed law, yet Kennedy's vote is difficult to predict from an oral argument session.
In the backdrop of the closely watched case is the election of Barack Obama and the question of whether America still needs an expansive law protecting against discrimination in voting now that a black man has won the presidency.
Lawyer Gregory Coleman, representing a Texas utility district that challenged the law as unconstitutional, said the "unremitting and defiant" bias in voting that Congress targeted in the 1965 law does not exist anymore.
"We are in a different day," insisted Coleman, who mentioned Obama's election in legal filings but not in the courtroom Wednesday.
Justice David Souter, who was among the most active questioners in defense of the Voting Rights Act, said Coleman's claim seemed "to deny the empirical reality" of the contemporary instances of bias Congress documented in the states.
Justice Ruth Bader Ginsburg suggested by her questions that she, too, believed the law was necessary to prevent "backsliding" in voting rights. Similar sentiment was expressed by the two other liberal justices, John Paul Stevens and Stephen Breyer.
The more conservative justices appeared to strongly believe the law has run its course. Chief Justice John Roberts said of Congress' repeated renewal of the 1965 act, "At some point it begins to look like it's going to go on forever."
Justice Antonin Scalia said that much of the evidence of government bias against blacks and other minorities was documented "a long time ago."
Justice Samuel Alito repeatedly questioned why some places that have lower minority poll registration rates would not be covered when places with less of a registration gap between blacks and whites still are covered.
Defending the law were Deputy U.S. Solicitor General Neal Katyal and Debo Adegbile, of the NAACP Legal Defense and Educational Fund.
Both lawyers emphasized the difficulty of bringing individual voting bias cases and said Congress wanted to ensure that unfair policies could be caught before they took effect. Katyal said Congress compiled 16,000 pages of testimony and determined that its work in this area was not done.
"Small changes in the rules of the game can affect many people," Adegbile said, referring to, for example, some localities' decisions to move polling locations or narrow deadlines for filing absentee ballots.
Chief Justice Roberts asked Adegbile if he believed southerners were more likely to discriminate than northerners. Adegbile answered indirectly by saying covered southern states had demonstrated a pattern of violations.
While Obama's recent election was mentioned by no one during the session, the election of other black officials in southern states did come up.
Said Adegbile, "That doesn't change the experience on the ground for ordinary citizens."