Justice Kennedy to be Deciding Vote in Voting Rights Case

Oral argument was heard yesterday in the case of Austin Municipal Utility District v. Holder.  Based on oral argument a consensus has emerged that Kennedy will once again be the swing vote.  As the Wall Street Journal reports, Justice Kennedy seems most concerned with issues of State sovereignty.

Justice Kennedy seemed most troubled by the formula used to place areas under Section 5, which relies on decades-old data regarding literacy tests and other pretexts once used to suppress minority votes. He questioned why certain states, primarily in the South, remain under Section 5 while others that could have equal or greater problems of racial disparity face no preclearance requirement.

"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. And the governments in one are to be trusted less than the governments in the other," Justice Kennedy said.

The other Justices seemed to also be aware of this and structured their questions more for his benefit than their own.

In a 1997 case, Justice Kennedy had written that congressional remedies had to be "congruent" and "proportional" to the rights at issue. Justice David Souter stressed the lengthy evidence that Congress amassed before its 2006 renewal, including hundreds of actions over 20 years to enforce Voting Rights Act protections. ...

Citing the "congruent and proportional" formula, Chief Justice John Roberts said that only 1/20th of 1% of preclearance requests are denied.

"That, to me, suggests that they are sweeping far more broadly than they need to, to address the intentional discrimination under the 15th Amendment," he said, citing the 1870 Amendment barring racial discrimination in voting and granting Congress power to enforce it.

What remains to be seen is whether Kennedy will take sides or stake out some middle ground that eases the burden on targeted municipalities.