With the Shelby County case, the Supreme Court has provided itself with a “clean” litigation vehicle to strike down Section 5 of the Voting Rights Act. In academic circles, the conventional wisdom seems to be that the seminal preclearance provision of the Act is a goner. Indeed, academics are already conducting online forums speculating about what comes next after the Court dismantles Section 5. But are there any reasons to think that Section 5 might survive? Although Section 5’s position seems precarious, let’s consider three reasons why Shelby County might turn out differently than the conventional, academic wisdom holds. Why the wait? A little less than four years ago, the Supreme Court had Section 5 teed up to be declared unconstitutional. In Northwest Austin Municipal Utility District No. 1 v. Holder (NAMUDNO), a majority of the Court easily could have sunk the preclearance provision if they so desired. Instead, the Court opted to engage in a less than credible interpretation of the statute that allowed the Court to duck the constitutional question. If the Court now is hellbent on using Shelby County to declare Section 5 unconstitutional, why the wait?
Some have suggested that NAMUDNO was a vehicle to provide a warning to Congress that Section 5 would not survive unless it once again revisited the statute and amended it to make it more palatable to the Court. But this theory has gaps. The Court had been sending signals – in, for example, Miller v. Johnson (1995), Reno v. Bossier Parish School Board (2000), and Georgia v. Ashcroft (2003) – about its problems with Section 5’s constitutionality for many, many years prior to Congress’s extension of Section 5 in 2006. . What was yet another “warning” going to do? The Court had to know that the votes to amend Section 5 weren’t any more likely to exist in Congress in 2009 than in 2006.
Another theory might be that the NAMUDNO opinion striking down Section 5 would have been a broad constitutional holding. In contrast, Shelby County provides for a “narrower” constitutional disavowal because the Court “only” will have to strike down as unconstitutional the formula for determining which jurisdictions are covered by Section 5. In other words, the Court can write an opinion extolling the virtues of Section 5 overall but striking it down for just the “minor” problem of the coverage formula. Of course, this is a canard, as the likelihood of Congress changing the coverage formula in response to Shelby County is somewhere between zero and none. Nevertheless, Shelby County may facially provide a more judicially minimalist approach to declaring Section 5 a dead letter.
Honestly, though, what likely has kept Section 5 alive for so long is the discomfort some Justices must have about burying a seminal civil rights law and what sort of big-picture message that would send to the public. The fact is that whether the Court uses some sort of faux constitutional minimalism to strike down Section 5, the headlines the next day will likely read: “Supreme Court Declares Voting Rights Act Unconstitutional.” When it comes to public opinion, the details won’t matter.
So maybe the votes just were not there to strike down Section 5 in NAMUDNO. Maybe a majority of the Justices were worried about what striking down Section 5 would do to the institution’s prestige. Or maybe Justice Kennedy (or even perhaps Chief Justice Roberts) did not want to have as part of his legacy the fact that he provided the crucial, swing vote to strike down one of the most successful civil rights statutes of all time. And maybe this has not changed. Maybe, just maybe, there still aren’t five votes to strike down Section 5.
Full Article: Shelby County v. Holder: Reasons to believe : SCOTUSblog.