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US Supreme Court Avoids Major Changes to Section 5 of Voting Rights Act


by: Karl-Thomas Musselman

Mon Jun 22, 2009 at 07:31 PM CDT


In an 8-1 ruling, the US Supreme Court upheld Section 5 pre-clearance as related to the decades old Voting Rights Act. While sidestepping the question of the constitutionality of the VRA, the court issued a narrow ruling that expanded the definition of what constitutes a "political subdivision" that is allowed to apply for exemption from pre-clearance.

The case, Northwest Austin Municipal Utility District v Holder (08-322), began here in Austin The term "political subdivision" was previously defined to include "counties, parishes, and voter-registering subunits." In the decision today, the "bailout" option was expanded to include all governmental subdivisions including Municipal Utility District's like the one in Austin that sought Supreme Court relief.

Today's ruling does not preclude a future challenge to the Voting Rights Act on broader constitutional grounds. Given that the court declined to take advantage of this case for that purpose, it may signal disinterest to address the subject agin for the immediate future. As a result, major changes to Texas election law, specifically a Voter Photo ID requirement and the 2011 redistricting plans, will be subject to review and approval by the Obama Justice Department.

The court's ruling can be read here (pdf).  

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On the contrary, the Court is interested (0.00 / 0)
Actually when you look at the language by SCOTUS you'll find there is an interest to take up the case should another jurisdiction come before the Court on the broader issue of whether Section 5 is still constitutional or not. In this case the Court kept a narrow focus to allow Congress the opportunity to remedy the issue.

Chief Justice Roberts signaled this intent when he wrote "The historic accomplishments of the Voting Rights Act are undeniable, but the Act now raises serious constitutional concerns. The preclearance requirement represents an intrusion into areas of  state and local responsibility that is otherwise unfamiliar to our federal system."

In an analysis by SCOTUSBlog Lyle Denniston felt the future of Section 5 is potentially shaky. "Perhaps one of the main ways to read the Court's ruling, then, is that it it a warning to Congress that it needs to reconsider Section 5, and shore it up, if it can, with a new formula for coverage, and provide some assurance that it will no longer single out some states to bear Section 5's obligations in ways that the Court suggested were now unequal," said Denniston.

I think this opens the door for another challenge to the entire section in the near future.


It's past time for Congress to step up (0.00 / 0)
Let's hope that Congress sees this as a call to shore up Section 5 and revisit the use of preclearance as a remedy.  A new Voting Rights act is needed to address mid-decade redistricting, standards for redistricting, and other issues.


[ Parent ]
Opting out (0.00 / 0)
The Supreme Court ruled that there has to be a meaningful release procedure, and Congress can fix that pretty easily. Since 1965, only a handful of jurisdictions (all in Virginia) have been cleared to opt out. It's ridiculous that areas of the South that have overcome their racist past are treated the same as areas that haven't.

Section 5 is still needed in Texas, and in much of the South, as there are plenty of places where voter suppression is standard practice. Just look at Waller County, where they keep trying to prevent black students at Prairie View A&M from voting. But that doesn't mean that all of Texas should have to preclear everything they do for the next 25 years. NAMUDNO, for one, was justified in asking for release.

8 out of 9 Supremes got this one right. Keep Section 5, but insist on realistic opt-out provisions.  


[ Parent ]
To an extent (0.00 / 0)
I think the point I was trying to make is that the court could have done much more with this case and didn't. And that in not doing so, they chose that path in order to give Congress the chance to fix it rather than the Court having to do so.  

[ Parent ]
You're right there (0.00 / 0)
Thanks KT. You are right that the Court could have went much further on this case. I think two things kicked in for Roberts on the case. He clearly wants to be seen as a judicial minimalist and completely striking down an entire section of the VRA would have gone counter to that position. Secondly, I think he wanted to avoid a 5-4 split on the decision and was able to move the entire moderate and left of center block to the decision.

In the end, he really did accomplish his task by sending the message to Congress. I don't think the entire section will be gutted. I agree with LSadun that Congress can remedy the section and still retain some aspects of protection.

I found another analysis of the decision at Election Law that goes a little deeper into possibly the strategy Roberts was putting in motion.

In the end we'll see if Congress does their own version of Voter ID when it comes to dealing with the issues. This is definitely not over yet.


[ Parent ]
I am not a lawyer but (0.00 / 0)
Chief Justice Roberts' ruling makes me nervous.  The sooner we can get a more liberal justice on the Supreme Court, the better for the vast majority of the American people.

Democracy loathing Republicans will do everything they can to suppress voting rights for certain groups of folks.  Give 'em an inch and they'll take 20 miles.


Mileading Headline and Article (0.00 / 0)
The Court did not "uphold" section five of the Voting Rights Act.  The Court avoided ruling on the Constitutionality of Section 5 and Chief Justice Roberts opinion was larded with very pointed and negative comments about it's future.  One justice, Justice Thomas -- every mindful of the axiom that "fools rush in where angels fear to tread" -- was ready to throw dirt on the grave of Section 5 immediately.  

However, don't be mislead by Burnt Orange Reports overly cheery headline.  There are at least four votes on the Court to bury Section 5 right now.  Whether Justice Kennedy is the fifth vote remains to be seen, but surely no astute Court watcher would be surprised if he was.  Short of an unexpected departure from the right wing of the Court, the Voting Rights Act's most powerful provision remains if grave peril.


I tend to agree (0.00 / 0)
I've updated the headline to be more reflective of that.

[ Parent ]
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