Two years ago, the Supreme Court looked over a cliff and decided not to jump. The question was whether a core section of the Voting Rights Act of 1965, as renewed by Congress in 2006 for another 25 years, was constitutional. A majority opinion by Chief Justice John G. Roberts Jr. strongly suggested that it wasn’t. The section’s provisions “raise serious constitutional questions,” the chief justice said. He suggested that the administrative burdens the law places on the states where black citizens once faced nearly insurmountable obstacles to voting were no longer justified: “Things have changed in the South.”
During the April 2009 argument in the case, Northwest Austin Municipal Utility District v. Holder, Chief Justice Roberts and Justice Anthony M. Kennedy, in particular, appeared exasperated by the failure of Congress to take those changes into account when it renewed the law in the same format as the previous renewal in 1982. An iconic achievement of the civil rights era seemed headed for history’s dustbin, most likely by a vote of 5 to 4, and an anticipatory outcry began to build. But then either the chief justice or Justice Kennedy, or maybe both, blinked.
There was no need to reach the constitutional issue, the eventual opinion held, because the tiny Texas utility district that had brought the challenge was entitled to try to “bail out” of the law’s coverage. A successful bail-out would moot the constitutional challenge. This was a most implausible reading of a statute that offered the bail-out opportunity only to political subdivisions, which the utility district, providing sewer service to 3,500 residents of Travis County, Tex., is not. But this non-decision decision – to which only Justice Clarence Thomas objected, arguing forcefully that the court should declare the section unconstitutional then and there – served to take the justices out of a spotlight they no longer welcomed.
Against this background, the nearly complete absence of attention received by another Voting Rights Act challenge is surprising. The new case was argued earlier this month in federal district court in the District of Columbia, and will almost certainly make its way to the Supreme Court. There appears to be no convenient off-ramp. The jurisdiction bringing the case, Shelby County, Ala., can’t qualify for a bail-out because it doesn’t meet the law’s requirement of a 10-year record without voting-rights enforcement problems.