Supreme Court Lets Section 5 of the Voting Rights Act Stand

Today, in a very unexpected ruling, the Supreme Court upheld Section 5 of the Voting Rights Act, which requires certain covered jurisdictions to seek “preclearance” from the Department of Justice before making any rule changes that affect voting. Adam Bonin explains:

[M]any conservatives have believed that the rigors of Section 5 preclearance exceeded Congress’ 15th Amendment authorization, given how much time has passed since the days of Bull Connor, and they thought they had their ideal plaintiff in Northwest Austin Municipal Utility District Number One (“NAMUDNO”), created in 1987 to provide waste collection and other public works services to about 3,500 residents.  Before 2004, elections for its board were held in private homes or garages; they wanted to move the elections to public places like elementary schools.  Because they’re in Texas, Section 5 applied, even though there was no evidence that NAMUDNO itself had ever discriminated on the basis of race.

And many liberals feared, especially after oral argument (PDF), that this Court’s 5-4 conservative majority would use the opportunity to gut Section 5, especially given its disparate treatment of Southern jurisdictions, with the Chief Justice asking the NAACP’s counsel “So is it your — is it your position that today southerners are more likely to discriminate than northerners?” and Justice Scalia noting, “Wasn’t Virginia the first State in the Union to elect a black governor?”

Today, however, the bullet was dodged, albeit on somewhat technical grounds.  In an 8-1 opinion authored by the Chief Justice, with only Justice Thomas dissenting, the Court effectively rewrote parts of the Voting Rights Act to allow NAMUDNO to apply in federal court for a permanent “bailout” from the preclearance provisions based on a documented record of behaving itself in this realm, a remedy previously allowed only for states and counties as a whole, and chose not to reach the larger constitutional question.

Leaving aside all the questions about how this ruling came about despite Roberts’ apparent hostility to the VRA, or what its narrow technical nature means for future rulings on the same subject, Rick Hasen explains the political ramifications:

The key political point is that Section 5 will remain in place during the next round of redistricting, and it will be redistricting supervised by the Obama Administration’s DOJ. We have already seen that the Obama Administration appears more protective of voting rights than the Bush Administration’s DOJ. So this will matter a great deal for the next decade of politics in terms of minority electoral success, even if Section 5 is struck down next decade.

In other words, while Justice Roberts and his conservative brethren might dismantle Section 5 at some point, this is a very good ruling for us with the census and the start of redistricting just a year away.

SCOTUS: Voting Rights Act Pre-Clearance at Risk?

The Supreme Court just heard oral arguments in a case challenging the “pre-clearance” provisions of Section 5 the Voting Rights Act. Pre-clearance requires that certain jurisdictions across the nation seek approval from the Department of Justice before altering voting qualifications or practices. Examples include changing the location of polling places, changing filing deadlines, or implementing new redistricting plans.

So-called “covered” jurisdictions include any state, county or town which implemented a “test or device” to restrict the franchise (like a literacy test), and where less than 50% of voting-age citizens were registered or voted in November 1964. Most of these places are southern states like Alabama and Texas, but much of New Hampshire, several counties in California, and three boroughs in New York City are also covered, for example.

Though the VRA in general and pre-clearance in particular are hallmarks of liberal voting reforms, Congress passed its most recent extension of the Act in 2006 with almost universal bipartisan support – 98-0 in the Senate and 390-33 in the House – after which it was signed by President Bush. However, a challenge to pre-clearance has now made it all the way up to the Supreme Court, and the prospects don’t look good for the law:

A central provision of the Voting Rights Act of 1965, designed to protect minorities in states with a history of discrimination, is at substantial risk of being struck down as unconstitutional, judging from the questioning on Wednesday at the Supreme Court.

Justice Anthony M. Kennedy, whose vote is likely to be crucial, was a vigorous participant in the argument, asking 17 questions that were almost consistently hostile to the approach Congress had taken to renewing the act in 2006.

“Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio,” Justice Kennedy said. “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.”

Kennedy and his fellow travelers (Alito in particular) seem to be upset that Congress hasn’t updated the formula for determining which jurisdictions should be covered since the VRA was first passed. Of course, Congress could change the criteria, but as the article notes, it would be politically difficult to do so.

As you may know, the Bush DOJ did its best to kill Section 5 – career attorneys at Justice, for instance, decided that Tom DeLay’s Texas gerrymander violated the VRA, but they were over-ruled by political appointees. Sadly, if the Supreme Court strikes down pre-clearance, Section 5 could simply die altogether.