By preserving a key component of civil rights law, justices avoid huge harm to the legitimacy of this Supreme Court.
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’.
It’s not a pretty decision. One can almost much see the jagged stitching of the needle and thread it took to stuff eight Supreme Court justices into this 16 page opinion. What emerges is a decision in which the Court, with almost Solomonic precision, splits the difference. Section 5 survives, and the bail-out provision is loosened. It's a loss for minority voters, despite protestations to the contrary. It will be interesting to see how many similar jurisdictions will now seek to get out from under the important oversight of the Department of Justice. Once jurisdictions are free from preclearance requirements, minority voters in a formerly covered jurisdiction who believe a voting change is discriminatory will have amass the tens of thousands of dollars it costs to litigate a voting rights suit in federal court – a result directly contrary to Congress’ intent in enacting Section 5.
Although the decision paving the way for the NAMUD to bailout was unanimous, there was , of course, the ubiquitous concurrence from Justice Clarence Thomas, who also dissents from the Court’s decision to leave section 5 intact. Despite his feints against so-called “identity politics,” Thomas almost always writes his own opinion –whether concurrence or dissent -- in race and civil rights cases. In fact, given the conservative majority on the Court, Justice Thomas may well come to be known as “the Great Concurrer.” It doesn’t have quite the ring of “the Great Dissenter,” but it’s perhaps a fitting moniker for a justice who has been nothing if not consistent in his determination to write concurring opinions in race cases that roughly translated seem to always amount to, “yeah, and as the black justice, I’d go even further than that.” Thomas’ decision in NAMUD is no different. Longer than the majority opinion by several pages, it contains, as always, a long historical race primer. Thomas knows that as the lone black justice his views about race will garner particular attention. He painstakingly sketches the history of racial discrimination in voting up through the civil rights movement. It’s always compelling reading. But it’s a set-up for his dissent. The punch line is always “that was then, this is now.” Although the record amassed by Congress included evidence of discrimination against Native American voters in South Dakota, Latino voters in Arizona and Georgia, black poll workers in South Carolina, Louisiana, Mississippi and Alabama, and which singled out Texas as having among the worst records of voting discrimination, in Thomas' view it amounts to “a record of scattered infringement of the right to vote.”
Thomas concludes that “[t]he extensive pattern of discrimination that led the Court to previously uphold section 5 as enforcing the Fifteenth Amendment no longer exists.” But this begs the question. Congress has fully recognized that the patterns of contemporary voting discrimination differ from those in place in 1964. The Voting Rights Act was specifically designed to be supple enough to encompass methods which might in the future be used to disenfranchise minority voters, the Senate noted when it authorized the Act. Rather than enumerate and outlaw each individual discriminatory voting practice in use in 1965 or even in 1982 when the Act was last reauthorized, Congress chose to implement a scheme that puts the onus on covered jurisdictions to enact voting changes that pass scrutiny by a federal authority. The record amassed by Congress in 2006 did not demonstrate that the same barriers exist today as did in 1965. Instead Congress found that new (and some old) methods have produced a continuing need for special protection of minority voters in covered jurisdictions. Thomas’ proclamation about the absence of discrimination is just another way of saying that no matter what Congress found in 2006, he’s not buying it. This conclusion would be just fine if Thomas were a legislator (which may be his true calling). Fortunately Thomas’ eight colleagues recognize the need to exercise greater judicial restraint. The NAMUD decision is not the disaster many of us thought it would be. But neither is it a profile in courage. Had the Court followed the course advanced by Justice Thomas and usurped Congress’ authority, it would have seriously compromised its own legitimacy. NAMUD is an inelegant, but cautious decision that preserves a core part of the Voting Rights Act, and the Court’s reputation.
Sherrilyn A. Ifill is a regular contributor to The Root.