Will the Supreme Court kill the Voting Rights Act?
The greatest danger in this case lies in how the court might strike down Section 5. And it is here that the lack of a middle path is particularly concerning. The statute allows jurisdictions that can prove they no longer engage in racial discrimination in voting to petition to bail out from coverage under Section 5. The utility district wants such a bailout. But the statute clearly says that only the entire state like Texas or a political subdivision that registers voters (which the utility district does not do), can ask for a bailout. * Since there's no good statutory loophole, the larger constitutional question seems unavoidable.
If the court says that Congress exceeded its power in the preclearance provision in NAMUDNO, that ruling could quickly extend to a rejection of Congress' power to require the creation of majority-minority districts in states with large minority populations. It could also extend to other civil rights directives aimed at the states. Broad ruling may make it harder, too, for Congress to come back and craft a narrower, updated, and more targeted version of Section 5.
Justice Kennedy is right that race still matters in American politics. Section 5 (and, indeed, the entire Voting Rights Act) has served as an important bargaining chip as minorities struggle to gain full and fair representation in elections. If Section 5 goes down, the sordid business of racial discrimination in voting could emerge again as a potent force, and Congress will have fewer weapons to fight it.
Correction, April 27, 2009: This article originally said that a political division of a state may not ask for a bailout. In fact, a political subdivision that registers voters may ask. (Return to the corrected sentence.)
Correction, April 29, 2009: This article incorrectly stated that the Supreme Court struck down the Violence Against Women Act in 1997. That act was struck down in 2000. (Return to the corrected sentence.)
Richard L. Hasen is a professor of law and political science at the U.C. Irvine School of Law and author of The Voting Wars: From Florida 2000 to the Next Election Meltdown. He also writes the Election Law Blog.
Photograph of voter by Don Emmert/AFP/Getty Images.