Court Saves Voting Rights Act and Itself

By preserving a key component of civil rights law, justices avoid huge harm to the legitimacy of this Supreme Court.

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It would be difficult to overstate the significance and revelatory import of the Supreme Court’s long-awaited decision in North Austin Municipal Utility District(NAMUD) v. Holder – the case that challenged the constitutionality of section 5 of the Voting Rights Act.  We learn that the conservative plurality on the Court (minus Justice Thomas) has a pretty good sense of poker.  That is to say, they know when the hold ‘em.  And we learn that the political skills of Chief Justice Roberts must be on the rise as well.  He pulls Justices Scalia and Alito, from the right and Justices Ginsberg and Souter from the center-left into a narrow decision in which the Court escapes ignominy by declining to strike down a key section of the Act which  Congress reauthorized just two years ago.

But the decision also sets back the cause of voting right by establishing  a path for many jurisdictions escape compliance with the mandatory reporting provisions of section 5.     After the rough and tumble oral argument in  April , civil rights tea-leaf readers were putting on a brave public face, but were privately  lamenting what they thought was the certain end to a  key piece  of the legislation known as “the crown jewel” of the Civil Rights Movement.  But it’s not just civil rights advocates who  should be cheering.  Had the Court narrowly decided, on a 5-4 vote, to supplant Congress’ view about the continuing need for the Act,  its  reputation would have suffered a severe blow.  But the Court stepped back from the abyss – with Chief Justice Roberts commandeering a unanimous agreement on a judgment  allowing the NAMUD to “bail-out” of section 5’s preclearance provisions,   and an 8-1 decision, in which all the justices save Justice Thomas declined to overturn the constitutionality of section 5.

Section 5 is the provision of the Voting Rights Act that requires “covered” jurisdictions – mostly, but not exclusively in the South – to submit all voting changes to the Department of Justice for “preclearance,” before such changes can be implemented.  Changes ranging from the location of polling places, to the adoption of  early voting, to increasing the number of city council members, are routinely sent to the DOJ for preclearance by jurisdictions such as New York City, several counties in Virginia, and the entire states of Texas, Mississippi and Georgia.  Jurisdictions may also seek preclearance from a federal court in the District of Columbia.  The preclearance requirement has meant that local minority communities have an opportunity to weigh in with the Justice Department  about  whether a proposed change is likely to undermine or negatively affect the ability of minority voters to participate in the political process.   Most importantly, the existence of  preclearance  requirements, has deterred many jurisdictions from even seeking to impose voting changes that would disenfranchise minority voters.  Nevertheless the Justice Department  has objected over 600 times to proposed voting changes  by covered jurisdictions since the Act was last reauthorized in 1982.

Congress considered all of this in 2006 when it  re-authorized the preclearance provisions of section 5, hearing testimony for over a year and amassing a record of over 15,000 pages, ultimately concluding that “the vestiges of discrimination in voting continue to exist.”

To strike down the Act as unconstitutional would have required the Supreme Court to engage in the most activist kind of decision-making;  imposing its  own “instincts” about the need for voting protection over Congress’  judgment based on a voluminous and detailed record.  Reading the decision, it’s clear that some members of the Court wanted to do just that.  There is some waxing about how “[t]hings have changed in the South” and an insistence that “[t]he evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance.” Ultimately the Court describing itself as “keenly mindful of [its] institutional role,” declines to supplant its own judgment for Congress’.

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