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Supreme Court Upholds Voting Rights Act

By an 8-1 ruling in Northwest Austin Munic. Util. Dist. v. Holder, the Supreme Court today declined to address the constitutionality of Section 5 of the Voting Rights Act, keeping the law alive for a future challenge, reports Tony Mauro at The National Law Journal. For those who haven't followed the case, Section 5 of the Voting Rights Act requires a number of states and local governments, mostly in the South, to seek federal permission before changing their voting procedures, explains The New York Times. Although the majority decision, written by Chief Justice Roberts, identified the statute's many constitutional infirmities, the Court chose the path of "constitutional avoidance." The Court sidestepped the constitutional question because of the existence of an alternative resolution, in this case, the Texas utility district's ability to try and convince a three judge panel that it was exempt from Section 5.

The ruling came as a surprise to many Court watchers given Justice Roberts' hostility to the Voting Rights Act during questioning at oral argument. As Dahlia Lithwick commented at Slate,

If you want your brain to implode, try reading today's decision in NAMUDNO next to a transcript of the oral argument from last April. Linda, you made this observation implicitly in your last post, but let me just say it outright: What happened to the Chief Justice John Roberts who gnashed his way through that oral argument with nothing but contempt for Section 5 and those who defended it?

Here was Roberts in April, questioning Deputy Solicitor General Neal Katyal's claim that Section 5 was still necessary because it still deters racially discriminatory voting practices: "Well, that's like the old -- you know, it's the elephant whistle. You know, I have this whistle to keep away the elephants. You know, well, that's silly. Well, there are no elephants, so it must work."

Here is Roberts writing today: "These improvements [in racial conditions] are no doubt due in significant part to the Voting Rights Act itself, and stand as a monument to its success."

Likewise, Rick Hasen of Election Law Blog writes that the decision to uphold Section 5 was a far better result than he had expected based on the argument. Interestingly, Hasen credits Souter for the win, noting that Souter had raised the prospect of constitutional avoidance during oral argument. As for other explanations of why Justice Roberts blinked, Hasen writes:

Chief Justice Roberts was clearly hostile to the government's position during oral argument. ("Counsel, the -- the -- our -- our decision in City of Boerne said that action under section 5 has to be congruent and proportional to what it's trying to remedy. Here, as I understand it, one-twentieth of 1 percent of the submissions are not precleared. That, to me, suggests that they are sweeping far more broadly than they need to, to address the intentional discrimination under the Fifteenth Amendment."). It is clear he thinks the Act is unconstitutional under the "congruence and proportional" standard, and he's on record as believing that the plain meaning of a statute (backed by a Supreme Court interpretation no less) should generally control. So what happened here? As I've repeatedly said, the Voting Rights Act is a crown jewel of the civil rights movement, and it would be symbolically monumental to strike it down. Clearly such an opinion would have been a 5-4 decision. Either the Chief wanted to avoid the political divisiveness of such a ruling (while still getting a result he wanted) or perhaps Justice Kennedy was going to go in this direction, and the Chief thought it would be more politically expedient for the entire Court (or most of the Court) to go in that same direction. That buys him judicial minimalist credibility without costing much of anything. The biggest cost is punting on the question of the standard to apply when the constitutional question reemerges in a future case.

Most observers expect the question of the constitutionality of the Voting Rights Act to return to the Court. And given that none of the more liberal justices wrote separately to defend the Voting Rights Act, it is likely that it will not survive review a second time around if the constitutional questions are reached. That is, unless Congress acts quickly to correct the constitutional deficiencies, as Tom Goldstein suggests at SCOTUS Blog.

Posted by Carolyn Elefant on June 22, 2009 at 05:45 PM | Permalink | Comments (1)


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