Under the leadership of Chief Justice John Roberts, the Supreme Court has not been friendly to voting rights or reasonable campaign finance laws. But so far, its retrenchment has been incremental. The court upheld Indiana's strict voter-identification law without any evidence the law was needed to prevent voter fraud, but it left the courthouse door slightly open for voters who could show the law would impose a special hardship on them. A majority has sided with First Amendment challengers to campaign finance laws in all four campaign finance cases it has decided, but thus far it has not overturned the cornerstones of current law: federal contribution limits and corporate and union spending limits in candidate elections. The court has read the Voting Rights Act in increasingly narrow ways that undermine its effectiveness and did so again last month. But it has not held the foundational civil rights law unconstitutional. Yet.
On April 29, the last day of the court's term, the justices will hear a case from an obscure utility district in Texas, Northwest Austin Municipal Utility District No. 1 v. Holder.(The shorthand is NAMUDNO. The court will release audio of oral argument right after argument concludes.) At stake is not only the constitutionality of a key provision of the Voting Rights Act but, potentially, the constitutionality of a host of other civil rights laws. These include the requirement for the creation of majority-minority districts in cities and states with large minority populations and the guarantee of language assistance to non-English-speaking voters in jurisdictions with a fair number of them. The NAMUDNO ruling will come just before the next round of redistricting and could have a major effect on who wins in all kinds of races, from obscure utility districts to state houses to Congress.
What's especially worrying about NAMUDNO is that the case does not provide the court with an easy incremental way out: If a majority of the justices want to side with the challengers to the Voting Rights Act, there's not much they can do short of holding the act as broadly unconstitutional.
Section 5 of the act, first enacted in 1965 for a five-year period, requires certain jurisdictions with a history of discrimination against African-Americans or language minorities (mostly in the South but also in portions of other states, including California and New York) to go to the Department of Justice in Washington, D.C., for "preclearance" before they can make any change in their voting practices and procedures. Those changes can be as big as a 10-year redistricting plan and as small as moving a polling place across the street. For each one, the "covered jurisdiction" must demonstrate that the change was made without a discriminatory purpose and that it won't make the affected minority groups worse off.
Section 5 was immediately challenged by South Carolina, which said Congress did not have the power to treat it like a conquered province and take away its ability to conduct its own elections. In the 1966 case South Carolina v. Katzenbach, the Supreme Courtdisagreed. The court said that the preclearance rule was "strong medicine" but justified under Congress' powers to enforce the 15th Amendment's bar on race discrimination in voting. The court pointed out that before the Voting Rights Act, every time the feds challenged a discriminatory voting practice in court, the Southern states abandoned it only to adopt a new one.
Each time Section 5 has been set to expire, Congress has reupped. In 1982, Congress renewed the law for 25 years. As the Voting Rights Act was being considered again for renewal in 2006, I and other academics became nervous that the law could be constitutionally vulnerable. Though the Supreme Court had not overruled Katzenbach, it had begun reining in congressional power over the states, beginning in 1997, when it struck down the Religious Freedom Restoration Act. * In these "New Federalism" cases, the court said that when Congress passes laws regulating unconstitutional conduct by the states, it has to come up with specific evidence that the states are violating the Constitution.
The problem with Section 5 of the Voting Rights Act is that it has been so successful that there's little ongoing evidence that states are engaging in unconstitutional discrimination. New forms of race-based barriers to voting are more subtle. As I testified before the Senate judiciary committee, the rate of DoJ objections when "covered jurisdictions" ask for preclearance has been asymptotically approaching zero. That, of course, doesn't mean that there would be no racial discrimination in elections if Section 5 disappeared. It just means that Congress might not be able to come up with good evidence to satisfy the court that Section 5 is still necessary under the strict new standard, precisely because the law has been such an effective deterrent.
In the summer of 2006, a number of voting rights scholars suggested making changes to the Voting Rights Act to try to protect it from the Supreme Court's New Federalism rulings. But Congress did not want to mess with the coalition that supported the act as it was. Now with NAMUDNO pending, voting rights advocates are nervous. If Justice Kennedy controls the outcome, then Section 5 might survive as an emasculated version of its former self. Kennedy wrote in a voting rights case last month that "[r]acial discrimination and racially polarized voting are not ancient history." But he then went on to narrow the reach of a different provision of the Voting Rights Act in what he said was an effort to forestall striking it down as unconstitutional. If Kennedy has his way, Section 5 perhaps dies not in this case but from 1,000 cuts to come later.
But it is not altogether clear that Kennedy will determine the court's ruling. As a Reagan lawyer in 1982, now Chief Justice Roberts spearheaded the efforts of that administration to prevent expansion of the Voting Rights Act. In a 2006 case on controversial Texas re-redistricting, Roberts remarked in putting forth a narrow reading of the act that it is "a sordid business, this divvying us up by race." Justices Alito, Thomas, and Scalia have all lined up on the same side. More surprisingly, perhaps, even Justices Stevens and Souter may not vote to uphold Section 5. In a Section 5 case the court decided last year, the two issued an opinion stating that "it may well be true that today [Section 5] is maintaining strict federal controls that are not as necessary or appropriate as they once were."
The upshot is that there may not be five votes on the court to uphold Section 5. In part, Congress can blame itself for not updating the law for more modern circumstances. (A Voting Rights Act that does not pay special attention to Ohio and Florida, for example, sounds as though it needs rejiggering.) As the law's challengers point out, the formula describing which jurisdictions are covered by the law is now based on 40-year-old data. And, of course, the election of the first African-American president is being touted by Section 5 opponents as evidence that race is no longer a problem in American elections. (To the contrary, a group of political scientists has shown that whites in jurisdictions covered by the Voting Rights Act were less likely to support Obama last November than whites elsewhere.) But the biggest problem is the court's strict federalism standard, which doesn't give Congress enough deference when it passes laws seeking to end discrimination.
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.)
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