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.”