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.