Reaction to Supreme Court's Voting Rights Act Decision

Voting Rights, Afterthoughts

The Atlantic
Jun 23 2009, 5:25 pm
by Matthew Cooper

My old colleague and friend, Abigail Thernstrom, makes the case against minority-majority districts in the National Review. The Nation reverts to paleoliberal stereotype in its piece on the Supreme Court's temperate 8-1 decision on an Austin, Texas utility district. The New York Times is also worried. Please. Does the Times believe that Steven Breyer, Ruth Bader Ginsburg, John Paul Stevens and David Souter have taken a crazy shift to the right? The decision seemed decidedly temperate, to me anyway. Section 5 of the Voting Rights Act is a serious infringement on local power and prerogatives but rightfully so given the country's history of racial discrimination. The question of whether it remains constitutional is a serious one. For the left and right, it seems like a no brainer but the Court seems to be taking a centrist position that this is a tough question without an easy answer. I found that pretty reassuring even if, I think, there's a coming showdown over this issue that won't be so temperate.

On the question of minority-majority districts, Thernstrom makes an important point about their not encouraging a centrist integrationist politics. But the answer is more subtle, I think, than she suggests. Harold Ford, Jr., the former Tennessee congressman, came out of the majority-minority district in Memphis that once elected his father. Surely, his politics are Obamaesque. And the fact that he was succeeded by a white Democrat suggests more racial fluidity in these kinds of districts than people, including me, might have thought a few years ago. Artur Davis is going to run an Obama-style candidacy for governor in Alabama, for instance, coming out of a minority-majority district. Kendrick Meek is going to seek the Senate seat being vacated by Mel Martinez in Florida. Districts like these seems to be yielding fewer Cynthia McKinneys. The Supreme Court's opinion this week was mild and evasive, which is why eight justices signed on to it. But it could also be seen as the work of a body that's thoughtful, engaged, and tuned into the subtleties of American life.


Voting Rights Act Upheld, But Court Hints at Change

By Robert Barnes
Washington Post Staff Writer
Tuesday, June 23, 2009

A key part of the landmark Voting Rights Act survived a constitutional challenge yesterday in the Supreme Court, but justices made it clear that a law forged in the darkest days of the nation's civil rights struggles may no longer be appropriate in a new era of American racial politics.

A surprisingly unified court found a compromise that allowed it to sidestep questions about whether the key provision of the law is constitutional, thus avoiding a divisive showdown with Congress, which just three years ago found that the 1965 act was still needed. But the opinion by Chief Justice John G. Roberts Jr., joined by the court's liberal members, raised doubts about whether the law's restrictions would survive a future challenge.

Civil rights activists, braced for a defeat from a court increasingly skeptical of race-based government policies, said the outcome was the best they could have hoped for. But conservatives, who had questioned the need for the requirements in a country that just elected its first African American president, found reason for hope in the court's blunt questioning of whether Congress had made the case for its extension of the law.

Experts said the key provision of the law appeared to have received more of a stay of execution than a reprieve.

"I tend to think the Voting Rights Act is living on borrowed time," said Nathaniel Persily, a Columbia University law professor whose work was cited in the opinion.

Justice Ruth Bader Ginsburg had earlier called the case "perhaps the most important of the term," and the court's 8 to 1 decision for now leaves in place the heart of the act: the Section 5 provision that requires federal approval for any changes in election laws or redistricting decisions in nine states, mostly in the South, and parts of seven others. That provision was deemed necessary in the original act to combat discrimination in those states and what was at the time a steadfast resistance to minority voting rights.

Supporters of the law noted that the decision means the provisions probably will be in place to guide the electoral redistricting plans required by the 2010 census.

"It's fair to say this case was brought to tear the heart out of the Voting Rights Act, and today that effort failed," said Debo Adegbile, lead attorney for the NAACP Legal Defense and Educational Fund.

The court said Congress's actions in extending Section 5 "raise serious constitutional questions," but Roberts wrote that "the importance of the question does not justify our rushing to decide it." Instead, the court made it clear that all political subdivisions covered by the act were free to make the case to federal officials for an exemption.

So far, only 17 subdivisions of the 12,000 covered by the act -- all of them in Virginia, including Fairfax City -- have "bailed out" of Section 5's restrictive provisions.

The nearly unanimous decision -- only Justice Clarence Thomas, the court's lone African American, found the provision unconstitutional -- masked the court's deep divisions about the act. During oral arguments, the court's conservative majority was openly critical of the requirements and sharply questioned whether some states were being treated differently because of past discrimination rather than current conditions.

When Congress reauthorized the law in 2006, it retained the Section 5 restrictions on the same states -- Virginia, Alaska, Alabama, Arizona, Georgia, Louisiana, Mississippi, South Carolina and Texas and parts of seven others -- without an examination of whether some should be removed or others added.

"The South has changed," Roberts wrote in what some experts interpreted as a warning to Congress. "The evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute's coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions."

Thomas said that was reason enough to find the provision unconstitutional. "The violence, intimidation and subterfuge that led Congress to pass Section 5 and this court to uphold it no longer remains," Thomas wrote. Neither the opinion nor the dissent mentioned President Obama's election.

Roberts said that finding an act of Congress unconstitutional is the "most delicate" task the justices have and that there was no reason to do so now. The court instead said the municipal utility district in Austin that had served as the test case was eligible to apply for a bailout, something a lower court had said the law did not allow.

The decision seemed in tune with Roberts's stated goal of deciding cases as narrowly as possible and avoiding what probably would have been another divisive ruling for the court on an important constitutional issue.

Persily called it "an example of real statesmanship by Chief Justice Roberts." Another expert on election law, Richard Hasen of Loyola Law School in Los Angeles, said the chief justice "blinked" after his long-standing criticism of the law and other government policies on race.

Ellen Katz, a University of Michigan law professor, said the court may have decided that after the way the Voting Rights Act revolutionized minority voter participation in America, "its fate ought not be the Supreme Court striking it down."


The Voting Rights Act Survives

The New York Times

Published June 22, 2009
Editorial

The Supreme Court decided on Monday not to strike down Section 5 of the Voting Rights Act, a protection for the right of minorities to vote. That was very good news. The less good news is that the court, which has repeatedly upheld the constitutionality of Section 5, said it raises serious constitutional concerns. The ruling may signal that the court will be tempted in a future case to strike down this important safeguard.
Congress enacted Section 5 to clamp down on election officials who use tactics like gerrymandering and closing polling places to suppress and dilute minority votes. It requires states and local governments to “preclear” changes in voting rules with the Justice Department or a federal court to determine whether they would harm minority voting rights.
The case the court considered was brought by a Texas utility district with an elected board. The district wanted to be removed from coverage by Section 5, or alternatively, for the court to hold Section 5 to be unconstitutional, because Congress overstepped its authority in passing it. A lower court rejected both claims.
Based on the questions the justices asked at oral arguments in April — always a risky gauge — it appeared as if the court might be poised to strike down Section 5. In the end, it took a narrower approach.
By an 8-to-1 vote, it ruled that the utility district should have been allowed to bail out from the requirements of Section 5. The lower court, it said, had read the bailout provision incorrectly. In keeping with its traditional reluctance to decide constitutional questions unless it must, the court said that it would not rule on whether Section 5 is constitutional.
But Chief Justice John Roberts’s majority opinion laid the groundwork for possibly doing so in the future. It said, “We are now a very different nation” than more than 40 years ago when the Voting Rights Act was first upheld. “Whether conditions continue to justify” the act, the majority said, is “a difficult constitutional question.”
Congress answered that question in 2006 before it reauthorized the act by votes of 390 to 33 in the House and 98 to 0 in the Senate. It held extensive hearings and produced voluminous evidence that minority voters continue to face significant obstacles. The next time it considers the question, the Supreme Court should make clear that Section 5 is still needed and still constitutional.



Ruling Prompts a Mixed Response


The New York Times
Published June 22, 2009
By DAMIEN CAVE

The board members of the Northwest Austin Municipal Utility District No. 1 say they will probably apply for the right to move their voting booths to or from garages without having to prove that doing so will not disenfranchise minority voters.

That was the most immediate impact of Monday’s Supreme Court ruling upholding the Voting Rights Act. That it could be so small and local — so disconnected from the constitutional question of whether the federal government can force certain areas to prove their electoral system is not racist — seemed to bother residents only slightly.

“The neighborhood was vindicated,” said Don Zimmerman, who has served as a member of the board that runs the district, which is part of an affluent suburb of Austin, Tex. “I thought from Day 1 there was an injustice.”

The ruling’s affect on other areas, however, may not be so quick to emerge, even though the court changed the way the law has long been applied. It was a narrow decision; the court gave smaller government entities that do not handle their own voter registration, like school boards and water districts, the right to use the same “bail out” process offered to states and municipalities seeking to be exempt from the act.

How many of these districts will actually use their new opportunity remains to be seen. Even in the South, where most of the 16 states covered entirely or in part by the law can be found, plans seem to vary.

Scott Price, general counsel to the South Carolina School Boards Association, said he expected several districts to seek relief from the so-called “pre-clearance” provision in Section 5 of the act, which mandates approval from the Department of Justice for changes in voting procedures.
But Phil Hartley, a lawyer representing the School Boards Association in Georgia, said few districts in his state would bother. “As a practical matter,” Mr. Hartley said of the court’s decision, “this means very little.”

Echoing the analysis of Chief Justice John G. Roberts Jr., who wrote for the 8-to-1 majority, Mr. Hartley said the government’s standards of proof for opting out of the act were so cumbersome that only 17 jurisdictions had successfully done so since 1982. Requesting permission has become too routine to inspire a demand for an exemption, he said.

“I’ve been practicing school law for 30 years,” Mr. Hartley said. “I can count on one hand the number of school board applications that have been rejected.”

Drawing attention to the issue in Georgia, however, are signs that the Obama administration could soon take a harder line toward enforcing the Voting Rights Act. A few weeks ago, the Department of Justice disallowed a Georgia program that combed through state databases, in part to find voters who may not be citizens and remove them from the rolls.

A letter from the Civil Rights Division of the department said the program filtered out too many eligible voters and had a disproportionate impact on members of minorities.

Rick Hasen, an election law expert at Loyola Law School in Los Angeles and a supporter of the Voting Rights Act, said that some Southern politicians saw such aggressive enforcement as proof that their sovereignty was being violated by a law that treats them as if they had not matured since it was first enacted in 1965.

Indeed, a brief filed by Gov. Sonny Perdue of Georgia in the case decided Monday said: “Today’s Georgia is not, as Congress suggests, a place where the state or local governments sponsor racial discrimination in the electoral process that must be curbed by the federal government.”

Legal scholars say a fuller portrait of the battleground shaped by the Supreme Court’s opinion — and the Obama administration’s still-nascent approach to voting rights enforcement — will come next year when states begin redistricting. If the court had struck down Section 5, states like Georgia would have avoided having to prove that changes in districts and procedures would not disenfranchise minorities.

Maintaining the law means leaving Washington with an extra weapon. “Redistricting is a massive big-stakes moment because somebody’s ox is always going to get gored,” said Heather Gerken, a professor at Yale Law School. “And Section 5 will influence whose ox gets gored.”

Residents and supporters of Municipal Utility District No. 1 have chosen to see Monday’s decision differently. The court’s nearly unanimous decision officially acknowledged that race relations had “unquestionably improved” — hinting that the act may no longer be necessary at some point soon.

Edward Blum, a former Texan who now serves as director of the Project on Fair Representation, a legal defense foundation in Washington that challenges race-based government policies and supported the plaintiff in this case, called the ruling “an excellent first chop on the log.”

“The question of the constitutionality will await another lawsuit,” Mr. Blum said, “and I am confident one will be filed sooner rather than later. We have won the first battle, but the war is not over.”



Quelle Surprise! The Unexpected Ruling that Saves Section 5


The Wall Street Journal
June 22, 2009, 1:43 PM ET

It’s in the waning days of June that the Supreme Court winds up its business for the term, typically with its most high-profile decisions. Today, one such decision was handed down from on high — the case known as Northwest Austin Municipal Utility District v. Holder.

At issue in the case was the constitutionality of section 5 of the 1965 Voting Rights Act, which requires governments in so-called “covered” jurisdictions — state and local governments in areas that once practiced discrimination — to “preclear” changes in election procedures with the Justice Department to ensure that minority voters are protected. In 2006, President Bush signed a bill reauthorizing the provision for another 25 years. Click here, here, here and here for previous LB posts on the case.

Supreme Court followers and commentators had expected a narrow ruling in the case, with the constitutionality of section 5 possibly turning on the vote of Justice Kennedy. But the Court threw everyone a curve-ball, ruling 8-1 in an opinion written by Chief Justice Roberts that drew a narrower path — keeping Section 5 in place, but allowing the “covered” jurisdiction at issue — a utility district in Austin, Texas — to apply for exemption from the law. Click here for the opinion; here for the writeup from the WSJ’s Jess Bravin; here for the same from Scotusblog.

Election-law specialist and Loyola Law School professor Rick Hasen was quick to gin up this interesting take on the ruling. Hasen’s take: Roberts has “managed to put together a coalition of 8 of 9 Justices to put the question [of section 5's constitutionality] off for another day. To do so, the Chief had to ignore the seeming plain language of the act, as well as earlier Supreme Court caselaw on point to reach an interpretation of the Act virtually no lawyer thought was plausible.”
We checked in with Hasen to explore what he meant by this quote, and get his take more generally on the ruling.

Hi Rick. Thanks for chatting. A big case, and right in your specialty. It must feel like Christmas today, eh?

Even more like Christmas given that the court didn’t strike down the Act. We, and other supporters of the Act, really didn’t know how this case was going to play out.

The outcome seemed to defy your expectations. How come?

This really was the marquee challenge to the constitutionality of a key part of the Voting Rights Act. It was teed up as a major case on the provision and it seemed to me and many others that there really was no middle ground for the court, as there usually is. At least I didn’t see one. I thought the provision would either be struck down or supported. So the surprise today was that the court managed to find a middle ground and avoid the constitutional question.

What was the middle ground reached here?

It’s kind of technical, but the court didn’t rule on the constitutionality of the section. Instead, the court found that this utility district can ask that it be let out of coverage of section 5. In other words, that it no longer have to seek preclearance whenever it makes a change in its voting procedures.

Why didn’t you foresee this middle ground?

Primarily because the statute is written pretty clearly that only states and other jurisdictions that register voters can ask for this bailout. It’s not something that’s supposed to be afforded smaller jurisdictions like this utility district. In a 1980 case called City of Rome, the court essentially held the same thing.

Yet the court found a way to see this interpretation was no longer one it needed to follow.And what about this idea of constitutional avoidance? This has been a part of Chief Justice Roberts’s judicial philosophy for a while, hasn’t it?

It has. In several cases, he’s been able to get the result he wants without making major constitutional pronouncements. There was a campaign finance case a couple of years ago [called Federal Election Commission v. Wisconsin Right to Life], that opened up the possibility for a large amount of corporate spending, but rather than head on striking the McCain-Feingold campaign-finance law, he created a constitutional exception. That’s been the way he’s tried to do things.

Frankly, in this case, I didn’t see the way to do this without too a pretty major contortion on Roberts’s part. But he blinked here. He went for a statutory position that’s pretty tough to justify in order to get a result he likes.

Really? Do you view it as a misreading of the underlying statute?

What I would say is that the Court pulled a rabbit out of its hat, I teach legislation as well, and a big question in that field — in statutory interpretation — is whether one can argue with a straight face that a statute is really ambiguous enough to trigger to rule that a statute should be interpreted to avoid constitutional problems. In my opinion, this is a real stretch. [Yale's] Heather Gerken said over at Balkinization today that she didn’t really think anyone outside the lawyer for the utility district [Greg Coleman] actually thought this result was a possibility.

Really?

Well, both Justices Souter and Ginsburg were pushing this, so I really view this in some ways as Justice Souter’s legacy — that he saved section 5 temporarily, at least past the next redistricting cycle.

Are you surprised that Chief Justice Roberts got seven other justices to go along with him?


It’s hard to know what the internal dynamics of the court were here. It’s hard to know whether this was Roberts’s brainchild or whether he saw that Justice Kennedy was going to vote for the liberals and tried to craft a bit of a compromise here. I’d think that the liberal justices are thrilled, though. The opinion really doesn’t cost them that much and it saves an outcome that I doubt they would have liked very much.

And what to make of Justice Thomas’s dissent?

He wrote an opinion that is the kind that I would have expected Roberts to sign off on. It’s a short opinion; in Justice Thomas’s mind, this was not a difficult question.

Anything else to note?


We’ve yet to get an opinion in the Citizen’s United case, which involves the constitutionality of another section of McCain-Feingold. I think that this issue of constitutional avoidance could come into play there. This could be a preview of things to come.

Great, Rick. Thanks for taking the time.

My pleasure.