Me, at Facebook today after reading this story at Talking Points Memo this morning:

Scalia, in oral arguments for and against the Voting Rights Act today:

“This is not the kind of question you can leave to Congress.”

Now we know how he feels about democracy, I guess. So is he going to legislate from the bench, and isn’t that what his party has been railing against since Brown v. Board of Education way back in 1954?

After reading many stories about the questioning today, I think Section V is toast. What would be the loss? Well, all those states which now have to get clearance from the Department of Justice before changing their voting laws and requirements would no longer have to. Over the past several years we’ve seen how many states have tried to do this to keep Democratic constituencies from casting votes; Section V has kept other states (mostly in the former Confederacy, of course) from trying as hard as they otherwise probably would.

Rick Hasen at the Election Law Blog feels the same way I do.

In the conservative Justices’ minds, there seems no doubt that the Court is miffed that Congress didn’t fix the Act’s (in their view) outdated coverage formula after NAMUDNO. Justice Kennedy seems to think the reason Congress didn’t update in the first place is that they didn’t want to take the time or were too lazy. That’s not it at all—it is that it is hard to come up with a politically acceptable new coverage formula which would pass in the current Congress. (Justice Scalia for his part believes that simply overturning the VRA would be a radioactive move for politicians, something I believe is no longer true—witness Rick Perry dissing the Voting Rights Act section 5 during a Republican presidential debate and getting nary a mention.) Congress had four years to react to NAMUDNO and did nothing.

NAMUDNO was a case in which a utility board in Texas (one of the states subject to Section V) claimed it wasn’t subject to the Voting Rights Act and shouldn’t have to get pre-clearance to change its rules. The Court said “We’re not going to address the constitutionality of Section V right now, but the board can apply for an exemption.” Implicit in the Court’s remarks was the idea that Congress should revisit Section V.

Chief Justice Roberts has apparently detested Section V since he worked for the Reagan Administration in the 1980s.

Voting rights violations, according to one memo he helped draft in 1981, “should not be too easy to prove since they provide a basis for the most intrusive interference imaginable.” If Roberts and the Reagan administration had gotten their way, discriminatory voting systems in most of the country could only be barred when discrimination could be shown to be intentional. That would make it much tougher for the feds to intervene in states and localities and guarantee equal voting rights.

That doesn’t sound like Roberts is in favor. We know Alito, Scalia, and Thomas are opposed, and relying on Kennedy for anything has proven pointless for years. So, toast.

Haser links to more reactions here.