Today, the Supreme Court heard oral argument in Northwest Austin Municipal Utility District No. 1 v. Holder (“NAMUDNO“). As discussed in our previous posts here and here, NAMUDNO is a case brought by a small utility district in Texas challenging Congress’s 2006 decision to reauthorize for 25 years the critical “pre-clearance” provision of the Voting Rights Act of 1965, one of our country’s most important civil rights laws. That provision requires covered jurisdictions, mostly in the South, to obtain federal permission before making changes to voting laws and procedures. The utility district has two basic arguments, both of which were addressed at oral argument: first, the district argues that the Voting Rights Act gives it a right to “bail out” and be freed of the Act’s pre-clearance requirements; second, it argues that Congress lacked sufficient evidence to extend the pre-clearance requirement, thus rendering the extension unconstitutional.

It became fairly clear during argument that to the extent the statutory “bail out” argument was attractive to the Justices at all, it was not for its merit, but only because accepting the argument might allow the Justices to avoid the constitutional question—or at least help them avoid creating a giant constitutional mess. As attractive as side-stepping a messy constitutional question might be, however, it doesn’t appear likely that the Justices will find that the utility district has the right to bail out of the pre-clearance provisions. (Indeed, Chief Justice Roberts began the day’s questioning with the observation that the utility district’s statutory bailout argument didn’t fit with the actual terms of the statute and Justice Kennedy suggested that it was “unworkable”).

Once it became clear that ruling on bailout probably wouldn’t save them from confronting the constitutionality of the Voting Rights Act extension, the Justices focused on the evidence Congress marshaled in support of that extension in 2006. Justice Breyer forcefully summarized the record before Congress, noting that the pre-clearance provisions prevented thousands of discriminatory voting changes from going into effect, that successful lawsuits alleging discriminatory voting practices continue to be brought, and that, while progress has been made, pre-clearance appears to have had a significant deterrent effect. On the other side, Justices Alito, Scalia, and Kennedy criticized Congress for failing to conduct a comprehensive, state-by-state analysis to justify applying pre-clearance requirements only to the mostly-southern states that are covered by those requirements, arguing that there was no sufficient reason given for why Georgia should be subject to these burdens while Ohio was not. Or, as Chief Justice Roberts accusingly phrased the question to Debo Adegbile, counsel for NAACP LDF and other defendant-interveners, is Congress saying southerners are more likely to discriminate than northerners?

Mr. Adegbile sidestepped this loaded question, explaining that the mostly-southern jurisdictions covered by pre-clearance have a history of persistent patterns of voting discrimination; in other words, Congress took the strong step of requiring pre-clearance to root out pernicious discrimination in those jurisdictions where the roots of voting discrimination run deepest. While voting discrimination certainly occurs in non-covered jurisdictions, Congress has made a considered judgment that such discrimination may be addressed through other provisions of the Voting Rights Act.

In all of this back-and-forth over the adequacy of Congress’ reasons for extending the Voting Rights Act, there was a shocking lack of debate over the standard of deference the Court should apply to Congress’ nearly unanimous decision that the extension was “appropriate” legislation to prevent discrimination in voting. Chief Justice Roberts repeatedly assumed in questioning that the restrictive standard of City of Boerne v. Flores—requiring that Congress show a pattern of pervasive constitutional violations by the states in order to enact enforcement legislation that is “congruent and proportional” to the problem—applied to this case, even though Boerne has never been applied to a Fourteenth Amendment case involving racial discrimination and has never been applied at all in a Fifteenth Amendment case. The absence of debate over this key issue today was particularly remarkable, given that the parties in their briefs deeply contested the extent of congressional enforcement power under the Fourteenth and Fifteenth Amendments, and the Court itself is splintered on this question.

A mild defense was mounted by Justice Souter, who asserted that “under any test” the record amassed by Congress in support of the extension of the Voting Rights Act was sufficient. But it was disturbing that no one spoke up in defense of the test that is actually required by the Constitution. As demonstrated by Constitutional Accountability Center’s brief in this case, the text and history of the Fourteenth and Fifteenth Amendments demand that the Court give broad discretion to Congress in determining what laws are “appropriate” to secure the right to vote free from discrimination.

Whether Congress could have written a different or even better Voting Rights Act in 2006—making pre-clearance voluntary for the entire nation (as suggested by Justice Scalia) or extending pre-clearance requirements to jurisdictions not previously covered (as Justices Alito and Kennedy seemed to find intriguing)—is thus the wrong inquiry. Here, Congress held 21 hearings, interviewed more than 90 witnesses, amassed a 15,000 page record, and found that jurisdictions required to pre-clear had engaged in thousands of discriminatory electoral practices between 1982 and 2006. This evidence is more than sufficient to support Congress’ extension of the Voting Rights Act under the standard of deference required by the Constitution.

Although the Justices today appeared very focused on the record amassed by Congress in 2006, it is most unfortunate that there was no focus at all on the record established by the Reconstruction Framers who, in crafting the Enforcement Clauses of the Fourteenth and Fifteenth Amendments, quite deliberately gave Congress broad power to prevent and deter racial discrimination in voting.