Justices Retain Oversight by U.S. on Voting
WASHINGTON — The Supreme Court on Monday left intact one of the signature legacies of the civil rights movement, the Voting Rights Act of 1965.
Related
Ruling Prompts a Mixed Response (June 23, 2009)
On Voting Rights, Test of History v. Progress (April 28, 2009)
Skepticism at the Court on Validity of Vote Law (April 30, 2009)
Text: Northwest Austin Municipal Util. Dist. No. One v. Holder (pdf)
The Battle, Not the War, on Voting Rights
Where does the Supreme Court's narrow ruling leave the debate about the constitutionality of voting rights law?
The court, in an 8-to-1 decision, ducked the central question in a case that was the most closely watched of the term. Most election law specialists had expected the court to rule on whether a core provision of the law was constitutional, and many were betting the answer would be no.
The provision allows federal oversight of election law changes in some places.
The court instead ruled on a narrow statutory ground, saying the utility district in Austin, Tex., that had challenged the constitutionality of the law — along with other government entities around the nation — might be eligible to “bail out” from being covered by it. The district, which manages water and other utilities and has an elected board, had pressed the bailout argument along with its constitutional challenge, and its lawyer said at the argument in the case that it would be satisfied with a ruling in its favor on the narrower ground.
Chief Justice John G. Roberts Jr., writing for the majority, acknowledged that the court’s approach stretched the statutory text, but he said the court should avoid deciding hard constitutional questions when it could. “We are now a very different nation” than the one that first passed the Voting Rights Act, he said. “Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.”
It is not unusual for the court to defer or avoid constitutional questions in cases that can be decided on narrower grounds. But almost all of the signs in this case, including Chief Justice Roberts’s own skeptical questioning at the argument, suggested that the court was steeling itself to make a major pronouncement about the role of race in American democracy. In opting to put off such a ruling, the justices nonetheless made a powerful statement. They took a hard look at the current historical moment and decided that it has not yet come fully into focus.
What remains to be seen is whether other jurisdictions will now take advantage of the opening the court has given them to try to opt out from coverage under the law. It is at least possible that an energetic series of bailout requests will address one criticism of the law — that Congress relied on old data to make arbitrary distinctions in deciding which local governments to cover — and gradually allow state and local governments to emerge from federal supervision.
At the same time, the decision all but invited further challenges. It was notable for uniting all but one of the justices in a case that could easily have given rise to angry divisions. “This is perhaps the biggest act of statesmanship of the Roberts court,” said Samuel Issacharoff, a law professor at New York University.
In 2006, Congress reauthorized Section 5 of the voting rights law, which requires many state and local governments, mostly in the South, to seek federal permission before making even minor changes to voting procedures. Critics have said a nation capable of electing a black president should no longer tolerate such federal intrusion into state affairs.
Several specialists in election law questioned whether the language in the law concerning bailouts could bear the interpretation the court ascribed to it. “The statutory ruling is an improbable one,” said Ellen D. Katz, a law professor at the University of Michigan. Richard L. Hasen, a professor at Loyola Law School in Los Angeles, said “virtually no lawyer” thought the court’s interpretation to be plausible.
The law limits the kinds of jurisdictions that can seek bailouts to states and their political subdivisions, which are defined in the law to mean counties, parishes and units of government that register voters. The district that brought the case, Northwest Austin Municipal Utility District No. 1 v. Holder, No. 08-322, is not a county or parish and does not register voters.
But Chief Justice Roberts said precedent, the structure of the law and “underlying constitutional concerns” required “a broader reading of the bailout provision.”
The statutory ruling did not stop Chief Justice Roberts from commenting on the progress the nation had made in helping African-Americans secure the right to vote and suggesting that the need for the most intrusive forms of federal supervision of state and local election practices might be over.
“The historic accomplishments of the Voting Rights Act are undeniable,” he wrote. But these days, he went on, “things have changed in the South.”
“Voter turnout and registration rates now approach parity,” Chief Justice Roberts wrote. “Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.”
Civil rights groups reacted to the decision with the combination of elation and wariness that follows having dodged a bullet.
“This case was brought to tear the heart out of the Voting Rights Act,” said Debo P. Adegbile, a lawyer with the NAACP Legal Defense and Educational Fund, “and today that effort failed.”
Christian J. Ward, a lawyer for the utility district, said the ruling was “a complete victory as far as we’re concerned.” Professor Katz said Monday’s decision had achieved something rare. “It allows everyone involved to declare victory,” she said.
Only Justice Clarence Thomas, who dissented in part, would have addressed the larger question in the case. He said the sorts of progress cited by Chief Justice Roberts meant Section 5 was no longer needed.
Section 5 requires officials in covered jurisdictions to get permission from the Justice Department or a federal court in Washington before they make changes to voting procedures like the locations of polling places. The jurisdictions subject to Section 5 were selected based on whether they had used devices to discourage voting, like literacy tests, and data from the 1964, 1968 and 1972 elections. Congress used those same decades-old criteria when it renewed the law in 2006.
“The statute’s coverage formula is based on data that is now more than 35 years old,” Chief Justice Roberts wrote, “and there is considerable evidence that it fails to account for current political conditions.”
Section 5 applies to Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina and Texas; most of Virginia; counties and townships in California, Florida, Michigan, New Hampshire, North Carolina and South Dakota; and three New York City boroughs, Manhattan, Brooklyn and the Bronx.
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