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The Court Kicks the Can—What’s Next?

Thursday, June 25, 2009

Although the Supreme Court dodged the constitutionality question of Section 5, most Court observers believe that the opinion unambiguously foretells that this Court is prepared to declare the provision unconstitutional.

This week, the U.S. Supreme Court swung the first chop on the log of Section 5 of the Voting Rights Act. In an 81 decision in Northwest Austin Municipal Utility District Number One v. Holder, the justices overturned a lower court ruling that had denied a small Travis County, Texas suburban neighborhood from seeking a “bailout” from this provision of the act. The Court, however, did not get to the big question of whether Section 5 is constitutional. The answer to that awaits another lawsuit; nevertheless, most Supreme Court observers believe that the language in the opinion unambiguously foretells that this court is prepared to declare the provision unconstitutional.

Some background on the 1965 Voting Rights Act (VRA) will be useful for understanding the court’s opinion and what is likely to happen next. The VRA was, as the Supreme Court recognized in this opinion, a "historic accomplishment” designed to end the official governmental barriers to voting that blacks faced in the Deep South. This objective was accomplished by banning literacy tests, providing federal voting registrars, and criminalizing harassment of black voters in targeted states and jurisdictions where black voter registration was less than 50 percent on November 1, 1964. This formula (and a subsequent new one) led to all of nine states and parts of seven others to be subject to Section 5 of the act, which requires them to seek approval from Washington before any new election procedures—such as redistricting or moving a polling place—can be made. No other statute in the legislative history of the nation has ever required a local jurisdiction to seek permission from the federal government before it can enact a law or procedure.

Section 5 was wisely—but temporarily—put in place to prevent these recalcitrant jurisdictions from using never-ending gamesmanship to circumvent the new law. Congress extended Section 5 in 2006 for the fourth time—it is now scheduled to expire in 2031, 61 years later than originally intended.

When the utility district challenged the 2006 reauthorization, it asked the lower court to allow it to seek a “bailout” from these “preclearance” requirements, as a provision of the law allows; and failing to achieve this exemption, it argued the law was unconstitutional. A three-judge panel in the District Court for the District of Columbia ruled against the district on both claims in 2008, finding that because the district did not register voters, it was not entitled to bailout. More significantly, it found that Congress had sufficient evidence of “second generation” racial discrimination in the areas covered by Section 5 to justify another 25 years of preclearance.

‘The biggest election law case since Bush v. Gore,’ came into the Supreme Court like a lion, and out like a lamb. Why?

Oral arguments at the Supreme Court last April did not go well for the defenders of the act. The Los Angeles Times headline was emblematic of most newspapers when it announced, “Supreme Court justices appear to be ready to strike down Section 5.” Election law scholars and bloggers were staggered that Justice Anthony Kennedy had voiced such deep concern—in reality, he gave a mini-speech—about the differential treatment of the Section 5 states to the rest of the union:

Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio. The sovereignty of Alabama is less than the sovereign dignity of Michigan. And the governments in one are to be trusted less than the governments in the other.

Although a few of the questions to both parties in the lawsuit focused on the bailout provision, most of the justice’s questions were concentrated on the broader issues surrounding constitutionality. Consequently, when the Court on Monday surprisingly issued an opinion that dodged the constitutionality issue altogether, there was a collective sigh of relief from the defendants and the defenders with one noting that the ruling was “more like Christmas given that the Court didn’t strike down the act.”

In a brief, 17-page opinion authored by Chief Justice John Roberts and joined by seven other justices, the Court found that the district and 12,000 others jurisdictions like it were entitled to bail out, even though they do not register voters. And although they left the constitutionality question unanswered, there is much discussion in the opinion that suggests these “second generation” discriminatory barriers are not numerous enough (or exist outside of the Section 5 jurisdictions in the same or greater degree) to justify another 25 years of federal oversight. Writing for the well-respected SCOTUSBlog.com, Lyle Denniston goes further by remarking that, “The main opinion, in fact, provides what could easily be read as a roadmap for such a future constitutional complaint.”

Justice Thomas would have examined the constitutional legitimacy of Section 5 and struck it down.

So, Northwest Austin Municipal Utility District Number One v. Holder, “the biggest election law case since Bush v. Gore,” came into the Supreme Court like a lion, and out like a lamb. Why? And what does the future hold for this provision?

There is plenty of speculation from all quarters as to why the Court kicked the can down the road, but the best explanation is that this is exactly what the district asked for in its original complaint. Greg Coleman, counsel for the district, was asked at the argument, “Do you acknowledge that if we find in your favor on the bailout point we need not reach the constitutional point?” His simple answer was, “I do acknowledge that.” All of which plausibly led Chief Justice Roberts to cite a 1980s era voting rights case as his rationale for avoiding the constitutional question: “it is a well-established principle governing the prudent exercise of this Court’s jurisprudence that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.”

It is noteworthy that Justice Clarence Thomas concurred in the judgment in part, but importantly, dissented in part, arguing that the Court’s statutory decision does not provide the district with full relief. In other words, Justice Thomas would have examined the constitutional legitimacy of Section 5 and struck it down.

Unless a new challenge is mounted soon, it appears the next round of redistricting in the states covered by Section 5 will require approval by Washington—a prospect that brings Democrats sublime joy.

Unless a new challenge is mounted soon, it appears the next round of redistricting in the states covered by Section 5 will require approval by Washington—a prospect that brings Democrats sublime joy. As reported in the Houston Chronicle, Matt Angle, the Democratic redistricting expert from Texas said that, “the decision ensures that any redistricting plan adopted by the Texas legislature will have to win advance approval from a Justice Department administered by the Obama administration.” One cannot help thinking his sentiment is shared by other Democratic redistricting experts from states like Georgia, South Carolina, and Virginia. All of which means that legally sanctioned, Section 5-driven racial gerrymandering will be a part of the political landscape for years to come.

In light of the constitutional skepticism of Section 5 held by at least five members of the Court, some legal scholars have urged Congress to get busy and do now what they should have done back in 2006—modernize the act to solve the problems of 2009, not those of 1965. Good idea, but Congress will not get near this statute until the Court declares it unconstitutional.

It took only eight days after President George W. Bush signed the 2006 reauthorization of Section 5 before a jurisdiction challenged the law. Going forward, it will probably be more than a week before a new jurisdiction takes the second chop on the Section 5 log, but not much more.

If the Court eventually strikes down Section 5, it would only be fitting for Justice Thomas to author the opinion.           

Edward Blum is a visiting fellow at the American Enterprise Institute. Prior to joining AEI, he facilitated the legal challenge to dozens of racially gerrymandered voting districts and race-based school admissions and public contracting programs throughout the nation.

FURTHER READING: Blum is the author of The Unintended Consequences of Section 5 of the Voting Rights Act. He recently wrote “Voting Rights and the Beneficiaries of Selma” on how the judiciary is following the nation’s growing sentiment that race and ethnicity should play a smaller role in our public policies.

AEI held a panel discussion called "Is the Voting Rights Act Constitutional?” and a similar event, "Is Section 5 of the Voting Rights Act Still Necessary?

Image by Darren Wamboldt/Bergman Group.

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