02/27/2013 06:04 pm ET Updated Feb 27, 2013

Justice Kennedy's Voting Rights Act Comments Worry Progressives

WASHINGTON -- Justice Anthony Kennedy is likely the only hope that voting rights advocates and the Obama administration have for the Supreme Court to uphold a crucial component of the Voting Rights Act. The questions he posed and views he expressed Wednesday during oral arguments on the constitutionality of the provision did not give progressives much hope.

Section 5 of the Voting Rights Act forces certain jurisdictions with a history of racial discrimination to have changes to their voting procedures precleared by either the Justice Department or a panel of three federal judges in Washington, D.C. Section 2 of the law, on the other hand, applies nationwide, but it puts the burden on the plaintiffs to prove changes to voting laws or procedures are discriminatory. In effect, it makes it tougher and more expensive to challenge changes to voting laws and procedures.

During oral arguments in the case of Shelby v. Holder, Kennedy indicated he thought Section 5 was outdated and that Section 2 was an adequate substitute. Below are seven quotes from the transcript of oral arguments that are making supporters of the Voting Rights Act nervous:

1. “[The government is] rather proud of this reverse engineering: We really knew it was some specific States we were interested in, and so we used these old categories to cover that State. Is that a methodology that in your view is appropriate under the test of congruence and -- and proportionality?”

2. “I don't know why under the equal footing doctrine it would be proper to just single out States by name, and if that in effect is what is being done, that seemed to me equally improper.”

3. “It seems to me that the Government can very easily bring a Section 2 suit and as part of that ask for bail-in under Section 3. Are those expensive, time-consuming suits? Do we have anything in the record that tells us or anything in the bar's experience that you could advise us? Is this an effective remedy?”

4. “This reverse engineering that you seem so proud of, it seems to me that that obscures the -- the real purpose of -- of the statute. And if Congress is going to single out separate States by name, it should do it by name. If not, it should use criteria that are relevant to the existing -- and Congress just didn't have the time or the energy to do this; it just reenacted it.”

5. “Well, the Marshall Plan was very good, too, the Morrill Act, the Northwest Ordinance, but times change.”

6. “But with -- with a modern understanding of -- of the dangers of polling place changes, with prospective injunctions, with preliminary injunctions, it's not clear -- and -- and with the fact that the Government itself can commence these suits, it's not clear to me that there's that much difference in a Section 2 suit now and preclearance. I may be wrong about that. I don't have statistics for it. That's why we're asking.”

7. “But a Section 2 case can, in effect, have an order for bail-in, correct me if I'm wrong, under Section 3 and then you basically have a mini -- something that replicates Section 5.”



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