Despite spending a lot of time reading and thinking about the Voting Rights Act case the Supreme Court will hear next week, there’s a puzzle I’m still trying to crack: How can it be that one of the crowning achievements of the civil rights movement, a provision upheld on four previous occasions by the Supreme Court and re-enacted in 2006 by overwhelming bipartisan majorities in Congress (98-0 in the Senate, 390-33 in the House), a law that President George W. Bush urged the justices to uphold again four years ago in one of his final acts in office, a law that has demonstrably defeated myriad efforts both flagrant and subtle to suppress or dilute the African-American vote, is now hanging by a thread? Of the hanging-by-a-thread part, there’s little doubt. Four years ago, in Northwest Austin Municipal Utility District No. One v. Holder, a case commonly referred to as Namudno, the Supreme Court came within a hair’s breadth of declaring the Voting Rights Act’s Section 5 unconstitutional. “Things have changed in the South,” Chief Justice John G. Roberts Jr. declared in the court’s opinion, an oft-quoted line of pithy constitutional analysis that took its place with the chief justice’s other profound musings on race in America. (The others, so far, are “It is a sordid business, this divvying us up by race,” dissenting in 2006 from a decision awarding a rare victory to Latino plaintiffs who had sued to invalidate a Texas congressional district; and “The way to end racial discrimination is to stop discriminating by race,” in a 2007 plurality opinion striking down integration-preserving efforts by public school districts in Louisville, Ky., and Seattle.)
Section 5 is the Voting Rights Act’s “pre-clearance” provision, which applies in all or part of 16 states, mostly in the South. These “covered” jurisdictions can’t make a change in voting procedures (new voter-ID requirements or sudden limits on early voting, to cite recent examples) without persuading either the Department of Justice or a special three-judge federal court that the change neither has the purpose nor will have the effect of “denying or abridging the right to vote on account of race or color.” By his paean to Southern progress, Chief Justice Roberts meant that the provision was no longer justified.
The court in Namudno nonetheless stopped short of turning that sentiment into a constitutional holding. At the last minute, someone blinked. Maybe it was Justice Anthony M. Kennedy. Maybe it was the chief justice himself. My own unverified theory is that the court’s liberals, looking for a way out of impending disaster, came up with an offer the conservatives couldn’t refuse without exposing the rank judicial activism in which they were poised to engage. The deus ex machina was an invitation by the court to the plaintiff, Northwest Austin sewer district, to “bail out” from Section 5 coverage — even though the statute’s plain language made jurisdictions of the sewer district’s sort ineligible for the bail-out option — thus removing the basis for ruling on the section’s constitutionality. The result was to preserve the underlying issue for another day.
Full Article: The More Things Change … – NYTimes.com.