Justices Don't Look Kindly on Disputed Provision of Voting Rights Act

By Kevin Fayle on April 30, 2009 | Last updated on March 21, 2019

While oral arguments are an imperfect method for determining how the Supreme Court will rule on a particular case, after arguments in Northwest Austin Municipal Utility District Number One v. Eric Holder, Jr, Attorney General, et al., things aren't looking too good for Section 5 of the Voting Rights Act.

That section of the historic act requires some, primarily Southern, states to receive preapproval from federal authorities before enacting any change in their election laws.  Other states still have to follow the law, but don't have to receive clearance from the federal government before modifying their voting laws.
The Justices, most notably Justice Kennedy, had some pointed questions for government lawyers, and the Court's conservative wing seemed highly skeptical of the section's continued viability. 

"The 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.  That doesn't bode well for Section 5.

Justice Kennedy chimed in to the debate 17 times, and expressed an continued and open hostility to the preclearance provision of the act.  This is important, since Kennedy is the swing vote in controversial decisions that come down to a 5-4 split.  Whither goeth Kennedy, goeth the law.

That's why supporters of the Voting Rights Act couldn't have been pleased to hear his tone at the arguments on Wednesday.

Of course, the Court has already found Section 5 to be constitutional four times before, so even the sharpened rhetoric might not indicate a full willingness to throw it out entirely, even with a conservative faction wielding the most power at the Court.  Some kind of compromise solution is completely within the realm of possibility.

That's probably the best that Section 5 supporters can hope for.
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